[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 114th Congress]
[114th Congress]
[House Document 113-181]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 166-171]
[From the U.S. Government Publishing Office, www.gpo.gov]


 

                   sec. xiii--examination of witnesses



[[Page 167]]




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 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). Subpoenas issued by order of the 
House are signed by the Speaker (clause 4 of rule I) and attested and 
sealed by the Clerk (clause 2 of rule II). 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 chair of a full 
committee. Authorized subpoenas are signed by the chair 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). Under section 2954 of title 5, 
United States Code, an executive agency, if so requested by the 
Committee on Government Operations (now Oversight and Government 
Reform), or any seven members thereof, shall submit any information 
requested of it relating to any matter within the jurisdiction of the 
committee.


[[Page 168]]

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.



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


  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 chair of the Committee of 
the Whole, as well as the Speaker, chairs 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) and 
the modern practice is to allow non-committee members to participate by 
unanimous consent. 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 (1949). 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).


[[Page 169]]

  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.




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 also has 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; III, 
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. 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 170]]

instance the chair 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).

  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. 67-1372, and Jan. 25, 1923, pp. 2415-23). 
In one




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 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 171]]




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 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. 27819).




  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 Lobbying Disclosure Act of 1995 requires all 
lobbyists to register with the Clerk of the House and the Secretary of 
the Senate (2 U.S.C. 1603).