[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 106th Congress]
[106th Congress]
[House Document 105-358]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 157-163]
[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,

[[Page 158]]

nor then are orders for their attendance given blank. 3 Grey, 51.

  In the House 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).


  In the House 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 2 of rule II). 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 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 
McGrain v. Daugherty, 273 U.S. 135 (1927); Barry v. U.S. ex. rel. 
Cunningham, 279 U.S. 597 (1929); Sinclair v. United States, 279 U.S. 263 
(1929)).


[[Page 159]]

fore a committee, it must be, for the information of the House, who 
are not present to hear it. 7 Grey, 52, 334.



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 
Journal. 3 Grey, 81. But the testimony given in answer before the House 
is never written down; but be


  The Committee of the Whole of the House 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. 803, 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 questions 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 the executive, legislative, or judicial branch of the Government of 
the United States (18 U.S.C. 1001).


  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 or 
ancillary to 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 or ancillary to 

        either House of Congress, the request for such an order has been 

        approved by an affirmative vote of a majority of the Members 


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        present of that House;

          ``(2) in the case of a proceeding before or ancillary to 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.


  ``(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 (1927); Barry v. U.S. ex. rel. 
Cunningham, 279 U.S. 597 (1929); Jurney v. MacCracken, 294 U.S. 125 
(1935)).



[[Page 161]]



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.



  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 
administered 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).




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.



[[Page 162]]

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).

  The House and the Senate have observed this rule; but it does not 
appear that they have always made public ascertainment of the 
willingness of




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. 803, infra). In examinations preliminary to impeachment 
counsel usually have been admitted (III, 1736, 2470, 2516) unless in 
cases wherein such proceedings were ex parte. During impeachment 
investigations against President Nixon and President Clinton, 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; H. 
Rept. 105-830, Dec. 16, 1998, p. ----).


[[Page 163]]

tive 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).



  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 Legisla