    [Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 107th Congress]
    [107th Congress]
    [House Document 106-320]
    [Jeffersons Manual of ParliamentaryPractice]
    [Pages 160-165]
    [From the U.S. Government Publishing Office, www.gpo.gov]

    [[Page 160]]

                       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.

    <>
    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 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 161]]

      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)).

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

    [[Page 162]]

    tive, legislative, or judicial branch of the Government of the United
    States (18 U.S.C. 1001).
      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 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 execu

      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

            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.''.

    [[Page 163]]

    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)).

    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

    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).

    [[Page 164]]

    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.

    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

      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 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).

    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.

    [[Page 165]]

    nesses 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 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. ----
    ).
      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 wit

      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. 1601).