    [Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 115th Congress]
    [115th Congress]
    [House Document 114-192]
    [Jeffersons Manual of ParliamentaryPractice]
    [Pages 167-172]
    [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.

      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).

    Sec. 342. The production of witnesses at an
    inquiry.

        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.

    [[Page 168]]

    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.

      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

    [[Page 169]]

    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.

      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).

      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.

    [[Page 170]]

    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.

      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 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).

    [[Page 171]]

    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 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

      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 172]]

    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).
      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

      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).