[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 104th Congress]
[104th Congress]
[House Document 103-342]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 155-160]
[From the U.S. Government Publishing Office, www.gpo.gov]



 

                  SEC. XIII.--EXAMINATION OF WITNESSES.




Sec. 341. Common fame as ground for 
investigation.

  Common  fame is a good ground for the House to proceed by 
inquiry, and even to accusation. Resolution House of Commons, 1 Car., 1, 
1625; Rush, L. Parl., 115; Grey, 16-22, 92; 8 Grey, 21, 23, 27, 45.



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Witnesses are not to be produced but where the House has previously 
instituted an inquiry, 2 Hats., 102, nor then are orders for their 
attendance given blank. 3 Grey, 51.

  In the House of Representatives common fame has been held sufficient 
to justify procedure for inquiry (III, 2701), as in a case wherein it 
was stated on the authority of ``common rumor'' that a Member had been 
menaced (III, 2678). The House also has voted to investigate with a view 
to impeachment on the basis of common fame, as in the cases of Judges 
Chase (III, 2342), Humphreys (III, 2385), and Durell (III, 2506).


[[Page 156]]
chairman of the committee or by any other member designated by the 
committee. Sometimes the House authorizes issue of subpoenas during a 
recess of Congress and empowers the Speaker to sign them (III, 1806), 
and in one case the two Houses, by concurrent resolution, empowered the 
Vice President and Speaker to sign during a recess (III, 1763). (See 
Barry v. U.S. ex. rel. Cunningham, 279 U.S. 597; McGrain v. Daugherty, 
273 U.S. 135; Sinclair v. United States, 279 U.S. 263).

  In the House of Representatives witnesses are summoned in pursuance 
and by virtue of the authority conferred on a committee by the House to 
send for persons and papers (III, 1750). Even in cases wherein the rules 
give to certain committees the authority to investigate without securing 
special permission, authority must be obtained before the production of 
testimony may be compelled (IV, 4316). The rules require that subpoenas 
issued by order of the House be signed by the Speaker (clause 4 of rule 
I) and attested and sealed by the Clerk (clause 3 of rule III). However, 
in clause 2(m) of rule XI the House has authorized any committee or 
subcommittee to issue a subpoena when authorized by a majority of the 
members of the committee or subcommittee voting, a majority being 
present. A committee may also delegate the authority to issue subpoenas 
to the chairman of a full committee. Authorized subpoenas are signed by 
the 




Sec. 343. Examination of witnesses in the House and in 
committee.

  When  any person is examined before a committee or at the bar of 
the House, any Member wishing to ask the person a question must address 
it to the Speaker or chairman, who repeats the question to the person, 
or says to him, ``You hear the question--answer it.'' But if the 
propriety of the question be objected to, the Speaker directs the 
witness, counsel, and parties to withdraw; for no question can be moved 
or put or debated while they are there. 2 Hats., 108. Sometimes the 
questions are previously settled in writing before the witness enters. 
Ib., 106, 107; 8 Grey, 64. The questions asked must be entered in the 
journals. 3 Grey, 81. But the testimony given in answer before the House 
is never written down; but before a committee, it must be, for the 
information of the House, who are not present to hear it. 7 Grey, 52, 
334.



[[Page 157]]
tions and answers of record for report to the House. To sustain a 
conviction of perjury, a quorum of a committee must be in attendance 
when the testimony is given (Christoffel v. United States, 338 U.S. 84). 
Certain criminal statutes make it a felony to give perjurious testimony 
before a Congressional committee (18 U.S.C. 1621), to intimidate 
witnesses before committees (18 U.S.C. 1505), or to make false 
statements in any matter within the jurisdiction of any department or 
agency of the United States (18 U.S.C. 1001). The latter statute had 
been interpreted to include false statements made by Members to Congress 
or courts, but in Hubbard v. United States, 94 U.S. 172 (1995), the 
Supreme Court held that 18 U.S.C. 1001 did not apply to statements made 
to Congress or the courts.
  The Committee of the Whole of the House of Representatives was charged 
with an investigation in 1792, but the procedure was wholly exceptional 
(III, 1804), although a statute still empowers the Chairman of the 
Committee of the Whole, as well as the Speaker, chairmen of select or 
standing committees, and Members to administer oaths to witnesses (2 
U.S.C. 191; III, 1769). Most inquiries, in the modern practice, are 
conducted by select or standing committees, and these in each case 
determine how they will conduct examinations (III, 1773, 1775). Clause 
2(k) of rule XI, contains provisions governing certain procedures at 
investigative hearings by committees (Sec. 712, infra). In one case a 
committee permitted a Member of the House not of the committee to 
examine a witness (III, 2403). Usually these investigations are reported 
stenographically, thus making the ques


  Another provision of the Federal criminal code (18 U.S.C. 6005) 
provides for ``use'' immunity for certain witnesses before either House 
or committees thereof as follows:


                 ``Sec. 6005. Congressional Proceedings.

  ``(a) In the case of any individual who has been or may be called to 
testify or provide other information at any proceeding before either 
House of Congress, or any committee, or any subcommittee of either 
House, or any joint committee of the two Houses, a United States 
district court shall issue, in accordance with subsection (b) of this 
section, upon the request of a duly authorized representative of the 
House of Congress or the committee concerned, an order requiring such 
individual to give testimony or provide other information which he 
refuses to give or provide on the basis of his privilege against self-
incrimination, such order to become effective as provided in section 
6002 of this part.

  ``(b) Before issuing an order under subsection (a) of this section, a 
United States district court shall find that--

          ``(1) in the case of a proceeding before either House of 

        Congress, the request for such an order has been approved by an 

        affirmative vote of a majority of the Members present of that 

        House;

          ``(2) in the case of a proceeding before a committee or a 

        subcommittee of either House of Congress or a joint committee of 

        both Houses, the request for such an order has been approved by 

        an affirmative vote of two-thirds of the members of the full 

        committee; and

          ``(3) ten days or more prior to the day on which the request 

        for such an order was made, the Attorney General was served with 

        notice of an intention to request the order.



[[Page 158]]

  ``(c) Upon application of the Attorney General, the United States 
district court shall defer the issuance of any order under subsection 
(a) of this section for such period, not longer than twenty days from 
the date of the request for such order, as the Attorney General may 
specify.''.




Sec. 344. Earlier and later practice as to inquiries at 
the bar of the House.

  The  House, in its earlier years, arraigned and 
tried at its bar persons, not Members, charged with violation of its 
privileges, as in the cases of Randall, Whitney (II, 1599-1603), 
Anderson (II, 1606), and Houston (II, 1616); but in the case of Woods, 
charged with breach of privilege in 1870 (II, 1626-1628), the respondent 
was arraigned before the House, but was heard in his defense by counsel 
and witnesses before a standing committee. At the conclusion of that 
investigation the respondent was brought to the bar of the House while 
the House voted his punishment (II, 1628). The House has also arraigned 
at its bar contumacious witnesses before taking steps to punish by its 
own action or through the courts (III, 1685). In examinations at its bar 
the House has adopted forms of procedure as to questions (II, 1633, 
1768), providing that they be asked through the Speaker (II, 1602, 1606) 
or by a committee (II, 1617; III, 1668). And the questions to be asked 
have been drawn up by a committee, even when put by the Speaker (II, 
1633). In the earlier practice the answer of a witness at the bar was 
not written down (IV, 2874); but in the later practice the answers 
appear in the journal (III, 1668). The person at the bar withdraws while 
the House passes on an incidental question (II, 1633; III, 1768). (See 
McGrain v. Dougherty, 273 U.S. 135; Barry v. U.S. ex. rel. Cunningham, 
279 U.S. 597; Jurney v. MacCracken, 294 U.S. 125).




Sec. 345. Procuring attendance of a witness in custody of 
the other House.

  If  either House have occasion for the presence of a 
person in custody of the other, they ask the other their leave that he 
may be brought up to them in custody. 3 Hats., 52.





Sec. 346. Members as witnesses.

  A  Member, in his place, 
gives information to the House of what he knows of any matter under 
hearing at the bar. Jour. H. of C., Jan. 22, 1744-5.



[[Page 159]]
tered the oath to himself and testified (III, 1821). The House, in an 
inquiry preliminary to an impeachment trial, gave leave to its managers 
to examine Members, and leave to its Members to attend for the purpose 
(III, 2033).

  At an examination at the bar of the House in 1795 both the written 
information given by Members and their verbal testimony were required to 
be under oath (II, 1602). In a case not of actual examination at the 
bar, but wherein the House was deliberating on a proposition to order 
investigation, it demanded by resolution that certain Members produce 
papers and information (III, 1726, 1811). Members often give testimony 
before committees of investigation, and in at least one case the Speaker 
has thus appeared (III, 1776). But in a case wherein a committee 
summoned a Member to testify as to a statement made by him in debate he 
protested that it was an invasion of his constitutional privilege (III, 
1777, 1778; see also H. Rept. 1372, 67th Cong. and Cong. Rec. 5, 1923, 
pp. 2415-23). In one instance the chairman of an investigating committee 
adminis




Sec. 347. Method of obtaining testimony of a Member of 
the other House.

  Either  House may request, but not command, the attendance of 
a Member of the other. They are to make the request by message of the 
other House, and to express clearly the purpose of attendance, that no 
improper subject of examination may be tendered to him. The House then 
gives leave to the Member to attend, if he choose it; waiting first to 
know from the Member himself whether he chooses to attend, till which 
they do not take the message into consideration. But when the peers are 
sitting as a court of criminal judicature, they may order attendance, 
unless where it be a case of impeachment by the Commons. There it is to 
be a request. 3 Hats., 17; 9 Grey, 306, 406; 10 Grey, 133.



  The House of Representatives and the Senate have observed this rule; 
but it does not appear that they have always made public ascertainment 
of the willingness of the Member to attend (III, 1790, 1791). In one 
case the Senate laid aside pending business in order to comply with the 
request of the House (III, 1791). In several instances House committees, 
after their invitations to Senators to appear and testify had been 
disregarded, have issued subpoenas. In such cases the Senators have 
either disregarded the subpoenas, refused to obey them, or have appeared 
under protest (III, 1792, 1793). In one case, after a Senator had 
neglected to respond either to an invitation or a subpoena the House 
requested of the Senate his attendance and the Senate disregarded the 
request (III, 1794). Where Senators have responded to invitations of 
House committees, their testimony has been taken without obtaining 
consent of the Senate (III, 1793, 1795, footnote).



[[Page 160]]



Sec. 348. Admission of counsel.

  Counsel  are to be heard only 
on private, not on public, bills and on such points of law only as the 
House shall direct. 10 Grey, 61.


  In 1804 the House admitted the counsel of certain corporations to 
address the House on pending matters of legislation (V, 7298), and in 
1806 voted that a claimant might be heard at the bar (V, 7299); but in 
1808, after consideration, the House by a large majority declined to 
follow again the precedent of 1804 (V, 7300). In early years counsel in 
election cases were heard at the bar at the discretion of the House (I, 
657, 709, 757, 765); but in 1836, after full discussion, the practice 
was abandoned (I, 660), and, with one exception in 1841 (I, 659), has 
not been revived, even for the case of a contestant who could not speak 
the English language (I, 661). Counsel appear before committees in 
election cases, however. Where witnesses and others have been arraigned 
at the bar of the House for contempt, the House has usually permitted 
counsel (II, 1601, 1616; III, 1667), sometimes under conditions (II, 
1604, 1616); but in a few cases has declined the request (II, 1608; III, 
1666, footnote). In investigations before committees counsel usually 
have been admitted (III, 1741, 1846, 1847), sometimes even to assist a 
witness (III, 1772), and clause 2(k)(3) of rule XI now provides that 
witnesses at investigative hearings may be accompanied by their own 
counsel for the purpose of advising them concerning their constitutional 
rights (Sec. 712). In examinations preliminary to impeachment counsel 
usually have been admitted (III, 1736, 2470, 2516) unless in cases 
wherein such proceedings were ex parte. During its investigation into 
charges of impeachment against President Nixon, the Committee on the 
Judiciary admitted counsel to the President to be present, to make 
presentations and to examine witnesses during investigatory hearings (H. 
Rept. 93-1305, Aug. 20, 1974, p. 29219).




  At one time the House required all counsel or agents representing 
persons or corporations before committees to be registered with the 
Clerk (III, 1771). The Federal Regulation of Lobbying Act (Title III of 
the Legislative Reorganization Act of 1946) requires all lobbyists to 
register with the Clerk of the House and the Secretary of the Senate (2 
U.S.C. 267).