U.S.

Supreme Court

Watkins v. United States, 354 U.S. 178 (1957)

Watkins v. United States

No. 261

Argued March 7, 1957

Decided June 17, 1957

354 U.S. 178

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Petitioner was convicted of a violation of 2 U.S.C. § 192, which makes it a misdemeanor for
any person summoned as a witness by either House of Congress or any committee thereof to
refuse to answer any question "pertinent to the question under inquiry." Summoned to testify
before a Subcommittee of the House of Representatives Committee on Un-American
Activities, petitioner testified freely about his own activities and associations, but he refused
to answer questions as to whether he had known certain other persons to have been members
of the Communist Party. He based his refusal on the ground that those questions were outside
of the proper scope of the Committee's activities, and not relevant to its work. No clear
understanding of the "question under inquiry" could be gleaned from the resolution
authorizing the full Committee, the legislative history thereof, the Committee's practices
thereunder, the action authorizing the Subcommittee, the statement of the Chairman at the
opening of the hearings or his statement in response to petitioner's protest.

Held: Petitioner was not accorded a fair opportunity to determine whether he was within his
rights in refusing to answer, and his conviction was invalid under the Due Process Clause of
the Fifth Amendment. Pp. 354 U. S. 181-216.

(a) The power of Congress to conduct investigations, inherent in the legislative process, is
broad, but it is not unlimited. P.354 U. S. 187.

(b) Congress has no general authority to expose the private affairs of individuals without
justification in terms of the functions of Congress. P. 354 U. S. 187.

(c) No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task
of Congress. P. 354 U. S. 187.

(d) The Bill of Rights is applicable to congressional investigations, as it is to all forms of

governmental action. P. 354 U. S. 188.

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(e) A congressional investigation is subject to the command that Congress shall make no law
abridging freedom of speech or press or assembly. Pp. 354 U. S. 196-197.

Page 354 U. S. 179

(f) When First Amendment rights are threatened, the delegation of power to a congressional
committee must be clearly revealed in its charter. United States v. Rumely, 345 U. S. 41.
P. 354 U. S. 198.

(g) A congressional investigation into individual affairs is invalid if unrelated to any

legislative purpose, because it is beyond the powers conferred upon Congress by the
Constitution. Kilbourn v. Thompson, 103 U. S. 168. P. 354 U. S. 198.

(h) It cannot simply be assumed that every congressional investigation is justified by a public
need that overbalances any private rights affected, since to do so would be to abdicate the
responsibility placed by the Constitution upon the judiciary to insure that Congress does not
unjustifiably encroach upon an individual's right of privacy nor abridge his liberty of speech,
press, religion or assembly. Pp. 354 U. S. 198-199.

(i) There is no congressional power to expose for the sake of exposure where the predominant
result can be only an invasion of the private rights of individuals. P. 354 U. S. 200.

(j) In authorizing an investigation by a committee, it is essential that the Senate or House

should spell out the committee's jurisdiction and purpose with sufficient particularity to
insure that compulsory process is used only in furtherance of a legislative purpose. P. 354 U.
S. 201.

(k) The resolution authorizing the Un-American Activities Committee does not satisfy this
requirement, especially when read in the light of the practices of the Committee and
subsequent actions of the House of Representatives extending the life of the Committee.
Pp. 354 U. S. 201-205.

(l) Every reasonable indulgence of legality must be accorded to the actions of a coordinate
branch of our Government, but such deference cannot yield to an unnecessary and
unreasonable dissipation of precious constitutional freedoms. P. 354 U. S. 204.

(m) Protected freedoms should not be placed in danger in the absence of a clear
determination by the House or Senate that a particular inquiry is justified by specific
legislative need. P. 354 U. S. 205.

(n) Congressional investigating committees are restricted to the missions delegated to them --
to acquire certain data to be used by the House or Senate in coping with a problem that falls
within its legislative sphere -- and no witness can be compelled to make disclosures on
matters outside that area. P. 354 U. S. 206.

Page 354 U. S. 180

(o) When the definition of jurisdictional pertinency is as uncertain and wavering as in the
case of the Un-American Activities Committee, it becomes extremely difficult for the
Committee to limit its inquiries to statutory pertinency. P. 354 U. S. 206.

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(p) The courts must accord to a defendant indicted under 2 U.S.C. § 192 every right which is
guaranteed to defendants in all other criminal cases, including the right to have available
information revealing the standard of criminality before the commission of the alleged
offense. Pp. 354 U. S. 207-208.

(q) Since the statute defines the crime as refusal to answer "any question pertinent to the
question under inquiry," part of the standard of criminality is the pertinency of the questions
propounded to the witness. P. 354 U. S. 208.

(r) Due process requires that a witness before a congressional investigating committee should
not be compelled to decide, at peril of criminal prosecution, whether to answer questions
propounded to him without first knowing the "question under inquiry" with the same degree
of explicitness and clarity that the Due Process Clause requires in the expression of any
element of a criminal offense. Sinclair v. United States, 279 U. S. 263. Pp. 354 U. S. 208-
209.

(s) The authorizing resolution, the remarks of the chairman or members of the committee, or
even the nature of the proceedings themselves, might make the "question under inquiry"
sufficiently clear to avoid the "vice of vagueness"; but these sources often leave the matter in
grave doubt. P. 354 U. S. 209.

(t) In this case, it is not necessary to pass on the question whether the authorizing resolution
defines the "question under inquiry" with sufficient clarity, since the Government does not
contend that it could serve that purpose. P. 354 U. S. 209.

(u) The opening statement of the Chairman at the outset of the hearings here involved is
insufficient to serve that purpose, since it merely paraphrased the authorizing resolution, and
gave a very general sketch of the past efforts of the Committee. Pp. 354 U. S. 209-210.

(v) Nor was that purpose served by the action of the full Committee in authorizing the
creation of the Subcommittee before which petitioner appeared, since it merely authorized the
Chairman to appoint subcommittees "for the purpose of performing any and all acts which
the Committee as a whole is authorized to do." Pp. 354 U. S. 211-212.

(w) On the record in this case, especially in view of the precise questions petitioner was
charged with refusing to answer, it cannot

Page 354 U. S. 181

be said that the "question under inquiry" was Communist infiltration into labor unions.
Pp. 354 U. S. 212-214.

(x) Unless the subject matter of the inquiry has been made to appear with undisputable
clarity, it is the duty of the investigative body, upon objection of the witness on grounds of
pertinency, to state for the record the subject under inquiry at that time and the manner in
which the propounded questions are pertinent thereto. Pp. 354 U. S. 214-215.

(y) The Chairman's response, when petitioner objected to the questions on grounds of
pertinency, was inadequate to convey sufficient information as to the pertinency of the
questions to the "question under inquiry." Pp. 354 U. S. 214-215.

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98 U.S.App.D.C.190, 233 F.2d 681, reversed and remanded.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This is a review by certiorari of a conviction under 2 U.S.C. § 192 for "contempt of

Congress." The misdemeanor is alleged to have been committed during a

Page 354 U. S. 182

hearing before a congressional investigating committee. It is not the case of a truculent or

contumacious witness who refuses to answer all questions or who, by boisterous or
discourteous conduct, disturbs the decorum of the committee room. Petitioner was prosecuted
for refusing to make certain disclosures which he asserted to be beyond the authority of the
committee to demand. The controversy thus rests upon fundamental principles of the power
of the Congress and the limitations upon that power. We approach the questions presented
with conscious awareness of the far-reaching ramifications that can follow from a decision of
this nature.

On April 29, 1954, petitioner appeared as a witness in compliance with a subpoena issued by
a Subcommittee of the Committee on Un-American Activities of the House of
Representatives. The Subcommittee elicited from petitioner a description of his background
in labor union activities. He had been an employee of the International Harvester Company
between 1935 and 1953. During the last eleven of those years, he had been on leave of
absence to serve as an official of the Farm Equipment Workers International Union, later
merged into the United Electrical, Radio and Machine Workers. He rose to the position of
President of District No. 2 of the Farm Equipment Workers, a district defined geographically
to include generally Canton and Rock Falls, Illinois, and Dubuque, Iowa. In 1953, petitioner
joined the United Automobile Workers International Union as a labor organizer.

Petitioner's name had been mentioned by two witnesses who testified before the Committee
at prior hearings. In September, 1952, one Donald O. Spencer admitted having been a
Communist from 1943 to 1946. He declared that he had been recruited into the Party with the
endorsement and prior approval of petitioner, whom he identified as the then District Vice-
President of the Farm Equipment

Page 354 U. S. 183

Workers. [Footnote 1] Spencer also mentioned that petitioner had attended meetings at which
only card-carrying Communists were admitted. A month before petitioner testified, one
Walter Rumsey stated that he had been recruited into the Party by petitioner. [Footnote 2]
Rumsey added that he had paid Party dues to, and later collected dues from, petitioner, who
had assumed the name, Sam Brown. Rumsey told the Committee that he left the Party in
1944.

Petitioner answered these allegations freely and without reservation. His attitude toward the
inquiry is clearly revealed from the statement he made when the questioning turned to the
subject of his past conduct, associations and predilections:

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"I am not now nor have I ever been a card-carrying member of the Communist Party. Rumsey
was wrong when he said I had recruited him into the party, that I had received his dues, that I
paid dues to him, and that I had used the alias Sam Brown."

"Spencer was wrong when he termed any meetings which I attended as closed Communist
Party meetings."

"I would like to make it clear that, for a period of time from approximately 1942 to 1947, I
cooperated with the Communist Party and participated in Communist activities to such a
degree that some persons may honestly believe that I was a member of the party."

"I have made contributions upon occasions to Communist causes. I have signed petitions for
Communist

Page 354 U. S. 184

causes. I attended caucuses at an FE convention at which Communist Party officials were

present."

"Since I freely cooperated with the Communist Party, I have no motive for making the
distinction between cooperation and membership except the simple fact that it is the truth. I
never carried a Communist Party card. I never accepted discipline, and, indeed, on several
occasions, I opposed their position."

"In a special convention held in the summer of 1947, I led the fight for compliance with the
Taft-Hartley Act by the FE-CIO International Union. This fight became so bitter that it ended
any possibility of future cooperation. [Footnote 3]"

The character of petitioner's testimony on these matters can perhaps best be summarized by
the Government's own appraisal in its brief:

"A more complete and candid statement of his past political associations and activities
(treating the Communist Party for present purposes as a mere political party) can hardly be
imagined. Petitioner certainly was not attempting to conceal or withhold from the Committee
his own past political associations, predilections, and preferences. Furthermore, petitioner
told the Committee that he was entirely willing to identify for the Committee, and answer any
questions it might have concerning, 'those persons whom I knew to be members of the
Communist Party,' provided that, 'to [his] best knowledge and belief,' they still were members
of the Party. . . . [Footnote 4]"

The Subcommittee, too, was apparently satisfied with petitioner's disclosures. After some
further discussion elaborating on the statement, counsel for the Committee

Page 354 U. S. 185

turned to another aspect of Rumsey's testimony. Rumsey had identified a group of persons
whom he had known as members of the Communist Party, and counsel began to read this list
of names to petitioner. Petitioner stated that he did not know several of the persons. Of those
whom he did know, he refused to tell whether he knew them to have been members of the
Communist Party. He explained to the Subcommittee why he took such a position:

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"I am not going to plead the fifth amendment, but I refuse to answer certain questions that I
believe are outside the proper scope of your committee's activities. I will answer any
questions which this committee puts to me about myself. I will also answer questions about
those persons whom I knew to be members of the Communist Party and whom I believe still
are. I will not, however, answer any questions with respect to others with whom I associated
in the past. I do not believe that any law in this country requires me to testify about persons
who may in the past have been Communist Party members or otherwise engaged in
Communist Party activity but who, to my best knowledge and belief, have long since
removed themselves from the Communist movement."

"I do not believe that such questions are relevant to the work of this committee, nor do I
believe that this committee has the right to undertake the public exposure of persons because
of their past activities. I may be wrong, and the committee may have this power, but until and
unless a court of law so holds and directs me to answer, I most firmly refuse to discuss the
political activities of my past associates. [Footnote 5] "

Page 354 U. S. 186

The Chairman of the Committee submitted a report of petitioner's refusal to answer questions
to the House of Representatives. H.R.Rep. No. 1579, 3d Cong., 2d Sess. The House directed
the Speaker to certify the Committee's report to the United States Attorney for initiation of
criminal prosecution. H.Res. 534, 83d Cong., 2d Sess. [Footnote 6] A seven-count indictment
was returned. [Footnote 7] Petitioner waived his right to jury trial, and was found guilty on all
counts by the court. The sentence, a fine of $100 and one year in prison, was suspended, and
petitioner was placed on probation.

An appeal was taken to the Court of Appeals for the District of Columbia. The conviction
was reversed by a three-judge panel, one member dissenting. Upon rehearing en banc, the full
bench affirmed the conviction with the judges of the original majority in dissent. 98
U.S.App.D.C.190, 233 F.2d 681. We granted certiorari

Page 354 U. S. 187

because of the very important questions of constitutional law presented. 352 U.S. 822.

We start with several basic premises on which there is general agreement. The power of the
Congress to conduct investigations is inherent in the legislative process. That power is broad.
It encompasses inquiries concerning the administration of existing laws, as well as proposed
or possibly needed statutes. It includes surveys of defects in our social, economic or political
system for the purpose of enabling the Congress to remedy them. It comprehends probes into
departments of the Federal Government to expose corruption, inefficiency or waste. But,
broad as is this power of inquiry, it is not unlimited. There is no general authority to expose
the private affairs of individuals without justification in terms of the functions of the
Congress. This was freely conceded by the Solicitor General in his argument of this case.
[Footnote 8] Nor is the Congress a law enforcement or trial agency. These are functions of
the executive and judicial departments of government. No inquiry is an end in itself; it must
be related to, and in furtherance of, a legitimate task of the Congress. Investigations
conducted solely for the personal aggrandizement of the investigators or to "punish" those
investigated are indefensible.

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It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to
obtain the facts needed for intelligent legislative action. It is their unremitting obligation to
respond to subpoenas, to respect the dignity of the Congress and its committees, and to testify

Page 354 U. S. 188

fully with respect to matters within the province of proper investigation. This, of course,
assumes that the constitutional rights of witnesses will be respected by the Congress as they
are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of
governmental action. Witnesses cannot be compelled to give evidence against themselves.
They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment
freedoms of speech, press, religion, or political belief and association be abridged.

The rudiments of the power to punish for "contempt of Congress" come to us from the pages
of English history. The origin of privileges and contempts extends back into the period of the
emergence of Parliament. The establishment of a legislative body which could challenge the
absolute power of the monarch is a long and bitter story. In that struggle, Parliament made
broad and varied use of the contempt power. Almost from the beginning, both the House of
Commons and the House of Lords claimed absolute and plenary authority over their
privileges. This was an independent body of law, described by Coke as lex
parliamenti. [Footnote 9] Only Parliament could declare what those privileges were or what
new privileges were occasioned, and only Parliament could judge what conduct constituted a
breach of privilege.

In particular, this exclusion of lex parliamenti from the lex terrae, or law of the land,
precluded judicial review of the exercise of the contempt power or the assertion of privilege.
Parliament declared that no court had jurisdiction to consider such questions. In the latter part
of the seventeenth century, an action for false imprisonment was brought by one Jay, who
had been held in contempt. The defendant, the Serjeant-at-Arms of the House of Commons,
demurred that he had taken the plaintiff

Page 354 U. S. 189

into custody for breach of privilege. The Chief Justice, Pemberton, overruled the demurrer.
Summoned to the bar of the House, the Chief Justice explained that he believed that the
assertion of privilege went to the merits of the action, and did not preclude jurisdiction. For
his audacity, the Chief Justice was dispatched to Newgate Prison. [Footnote 10]

It seems inevitable that the power claimed by Parliament would have been abused.
Unquestionably it was. A few examples illustrate the way in which individual rights were
infringed. During the seventeenth century, there was a violent upheaval, both religious and
political. This was the time of the Reformation and the establishment of the Church of
England. It was also the period when the Stuarts proclaimed that the royal prerogative was
absolute. Ultimately there were two revolutions, one protracted and bloody, the second
without bloodshed. Critical commentary of all kinds was treated as contempt of Parliament in
these troubled days. Even clergymen were imprisoned for remarks made in their sermons.
[Footnote 11] Perhaps the outstanding case arose from the private conversation of one Floyd,
a Catholic, in which he expressed pleasure over the misfortune of the King's Protestant son-
in-law and his wife. Floyd was not a member of Parliament. None of the persons concerned
was in any way connected with the House of Commons. Nevertheless, that body imposed an

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humiliating and cruel sentence upon Floyd for contempt. [Footnote 12] The House of Lords
intervened,

Page 354 U. S. 190

rebuking the Commons for their extension of the privilege. The Commons acceded and
transferred the record of the case to the Lords, who imposed substantially the same penalty.
[Footnote 13]

Later in that century, during the reign of Charles II, there was great unrest over the fact that
the heir apparent, James, had embraced Catholicism. Anti-Catholic feeling ran high, spilling
over a few years later when the infamous rogue, Titus Oates, inflamed the country with
rumors of a "Popish Plot" to murder the King. A committee of Parliament was appointed to
learn the sources of certain pamphlets that had been appearing. One was entitled: The Grand
Question Concerning the Prorogation of this Parliament for a Year and Three Months Stated
and Discussed. A Doctor Carey admitted to the committee that he knew the author, but
refused to divulge his name. Brought to the bar of the House of Lords, he persisted in this
stand. The House imposed a fine of �1,000 and committed the witness to the Tower.
[Footnote 14]

A hundred years later, George III had managed to gain control of Parliament through his
ministers. The King could not silence the opposition, however, and one of the most vocal was
John Wilkes. This precipitated a

Page 354 U. S. 191

struggle that lasted for several years until Wilkes finally prevailed. One writer sums up the
case thus:

"He had won a victory for freedom of the press. He had directed popular attention to the
royally controlled House of Commons, and pointed out its unrepresentative character, and
had shown how easily a claim of privilege might be used to sanction the arbitrary
proceedings of ministers and Parliament, even when a fundamental right of the subject was
concerned. It was one of life's little ironies that work of such magnitude had been reserved for
one of the worst libertines and demagogues of all time. [Footnote 15]"

Even as late as 1835, the House of Commons appointed a select committee to inquire into ". .
. the origin, nature, extent and tendency of the Orange Institutions." This was a political-
religious organization, vehemently Protestant in religion and strongly in favor of the growth
of the British Empire. The committee summoned the Deputy Grand Secretary and demanded
that he produce all the records of the organization. The witness refused to turn over a letter-
book, which he admitted contained his answers to many communications upon Orange
business. But it also contained, he said, records of private communications with respect to
Orangeism. Summoned to the bar of the House of Commons, he remained adamant, and was
committed to Newgate Prison. [Footnote 16]

Modern times have seen a remarkable restraint in the use by Parliament of its contempt
power. Important investigations, like those conducted in America by congressional
committees, are made by Royal Commissions

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Page 354 U. S. 192

of Inquiry. [Footnote 17] These commissions are comprised of experts in the problem to be
studied. They are removed from the turbulent forces of politics and partisan considerations.
Seldom, if ever, have these commissions been given the authority to compel the testimony of
witnesses or the production of documents. [Footnote 18] Their success in fulfilling their
factfinding missions without resort to coercive tactics is a tribute to the fairness of the
processes to the witnesses and their close adherence to the subject matter committed to them.

The history of contempt of the legislature in this country is notably different from that of
England. In the early days of the United States, there lingered the direct knowledge of the evil
effects of absolute power. Most of the instances of use of compulsory process by the first
Congresses concerned matters affecting the qualification or integrity of their members or
came about in inquiries dealing with suspected corruption or mismanagement of government
officials. [Footnote 19] Unlike the English practice, from the very outset, the use of contempt
power by the legislature was deemed subject to judicial review. [Footnote 20]

There was very little use of the power of compulsory process in early years to enable the
Congress to obtain facts pertinent to the enactment of new statutes or the

Page 354 U. S. 193

administration of existing laws. The first occasion for such an investigation arose in 1827,
when the House of Representatives was considering a revision of the tariff laws. [Footnote
21] In the Senate, there was no use of a factfinding investigation in aid of legislation until
1859. [Footnote 22] In the Legislative Reorganization Act, the Committee on Un-American
Activities was the only standing committee of the House of Representatives that was given
the power to compel disclosures. [Footnote 23]

It is not surprising, from the fact that the Houses of Congress so sparingly employed the
power to conduct investigations, that there have been few cases requiring judicial review of
the power. The Nation was almost one hundred years old before the first case reached this
Court to challenge the use of compulsory process as a legislative device, rather than in
inquiries concerning the elections

Page 354 U. S. 194

or privileges of Congressmen. [Footnote 24] In Kilbourn v. Thompson, 103 U. S. 168,

decided in 1881, an investigation had been authorized by the House of Representatives to
learn the circumstances surrounding the bankruptcy of Jay Cooke & Company, in which the
United States had deposited funds. The committee became particularly interested in a private
real estate pool that was a part of the financial structure. The Court found that the subject
matter of the inquiry was "in its nature clearly judicial, and therefore one in respect to which
no valid legislation could be enacted." The House had thereby exceeded the limits of its own
authority.

Subsequent to the decision in Kilbourn, until recent times, there were very few cases dealing
with the investigative power. [Footnote 25] The matter came to the fore again when the
Senate undertook to study the corruption in the handling of oil leases in the 1920's.
In McGrain v. Daugherty, 273 U. S. 135, and Sinclair v. United States, 279 U. S. 263, the

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Court applied the precepts of Kilbourn to uphold the authority of the Congress to conduct the
challenged investigations. The Court recognized the danger to effective and honest conduct
of the Government

Page 354 U. S. 195

if the legislature's power to probe corruption in the executive branch were unduly hampered.

Following these important decisions, there was another lull in judicial review of
investigations. The absence of challenge, however, was not indicative of the absence of
inquiries. To the contrary, there was vigorous use of the investigative process by a Congress
bent upon harnessing and directing the vast economic and social forces of the times. Only one
case came before this Court, and the authority of the Congress was affirmed. [Footnote 26]

In the decade following World War II, there appeared a new kind of congressional inquiry
unknown in prior periods of American history. Principally this was the result of the various
investigations into the threat of subversion of the United States Government, but other
subjects of congressional interest also contributed to the changed scene. This new phase of
legislative inquiry involved a broad-scale intrusion into the lives and affairs of private
citizens. It brought before the courts novel questions of the appropriate limits of
congressional inquiry. Prior cases, like Kilbourn, McGrain and Sinclair had defined the scope
of investigative power in terms of the inherent limitations of the sources of that power. In the
more recent cases, the emphasis shifted to problems of accommodating the interest of the
Government with the rights and privileges of individuals. The central theme was the
application of the Bill of Rights as a restraint upon the assertion of governmental power in
this form.

It was during this period that the Fifth Amendment privilege against self-incrimination was
frequently invoked

Page 354 U. S. 196

and recognized as a legal limit upon the authority of a committee to require that a witness
answer its questions. [Footnote 27] Some early doubts as to the applicability of that privilege
before a legislative committee never matured. [Footnote 28] When the matter reached this
Court, the Government did not challenge in any way that the Fifth Amendment protection
was available to the witness, and such a challenge could not have prevailed. It confined its
argument to the character of the answers sought and to the adequacy of the claim of
privilege. Quinn v. United States, 349 U. S. 155; Emspak v. United States, 349 U. S.
190; Bart v. United States, 349 U. S. 219. [Footnote 29]

A far more difficult task evolved from the claim by witnesses that the committees'
interrogations were infringements upon the freedoms of the First Amendment. [Footnote 30]

Page 354 U. S. 197

Clearly, an investigation is subject to the command that the Congress shall make no law
abridging freedom of speech or press or assembly. While it is true that there is no statute to
be reviewed, and that an investigation is not a law, nevertheless an investigation is part of
lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment

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may be invoked against infringement of the protected freedoms by law or by lawmaking.
[Footnote 31]

Abuses of the investigative process may imperceptibly lead to abridgment of protected

freedoms. The mere summoning of a witness and compelling him to testify, against his will,
about his beliefs, expressions or associations is a measure of governmental interference. And
when those forced revelations concern matters that are unorthodox, unpopular, or even
hateful to the general public, the reaction in the life of the witness may be disastrous. This
effect is even more harsh when it is past beliefs, expressions or associations that are disclosed
and judged by current standards, rather than those contemporary with the matters exposed.
Nor does the witness alone suffer the consequences. Those who are identified by witnesses,
and thereby placed in the same glare of publicity, are equally subject to public stigma, scorn
and obloquy. Beyond that, there is the more subtle and immeasurable effect upon those who
tend to adhere to

Page 354 U. S. 198

the most orthodox and uncontroversial views and associations in order to avoid a similar fate
at some future time. That this impact is partly the result of nongovernmental activity by
private persons cannot relieve the investigators of their responsibility for initiating the
reaction.

The Court recognized the restraints of the Bill of Rights upon congressional investigations
in United States v. Rumely, 345 U. S. 41. The magnitude and complexity of the problem of
applying the First Amendment to that case led the Court to construe narrowly the resolution
describing the committee's authority. It was concluded that, when First Amendment rights are
threatened, the delegation of power to the committee must be clearly revealed in its charter.

Accommodation of the congressional need for particular information with the individual and
personal interest in privacy is an arduous and delicate task for any court. We do not
underestimate the difficulties that would attend such an undertaking. It is manifest that,
despite the adverse effects which follow upon compelled disclosure of private matters, not all
such inquiries are barred. Kilbourn v. Thompson teaches that such an investigation into
individual affairs is invalid if unrelated to any legislative purpose. That is beyond the powers
conferred upon the Congress in the Constitution. United States v. Rumely makes it plain that
the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill
of Rights. The critical element is the existence of, and the weight to be ascribed to, the
interest of the Congress in demanding disclosures from an unwilling witness. We cannot
simply assume, however, that every congressional investigation is justified by a public need
that overbalances any private rights affected. To do so would be to abdicate the responsibility
placed by the Constitution upon the judiciary to insure that the Congress does not
unjustifiably encroach upon an individual's

Page 354 U. S. 199

right to privacy nor abridge his liberty of speech, press, religion or assembly.

Petitioner has earnestly suggested that the difficult questions of protecting these rights from
infringement by legislative inquiries can be surmounted in this case because there was no
public purpose served in his interrogation. His conclusion is based upon the thesis that the

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Subcommittee was engaged in a program of exposure for the sake of exposure. The sole
purpose of the inquiry, he contends, was to bring down upon himself and others the violence
of public reaction because of their past beliefs, expressions and associations. In support of
this argument, petitioner has marshalled an impressive array of evidence that some
Congressmen have believed that such was their duty, or part of it. [Footnote 32]

Page 354 U. S. 200

We have no doubt that there is no congressional power to expose for the sake of exposure.
The public is, of course, entitled to be informed concerning the workings of its government.
[Footnote 33] That cannot be inflated into a general power to expose where the predominant
result can only be an invasion of the private rights of individuals. But a solution to our
problem is not to be found in testing the motives of committee members for this purpose.
Such is not our function. Their motives alone would not vitiate an investigation which had
been instituted by a House of Congress if that assembly's legislative purpose is being served.
[Footnote 34]

Petitioner's contentions do point to a situation of particular significance from the standpoint

of the constitutional limitations upon congressional investigations. The theory of a committee
inquiry is that the committee members are serving as the representatives of the parent
assembly in collecting information for a legislative purpose. Their function is to act as the
eyes and ears of the Congress in obtaining facts upon which the full legislature can act. To
carry out this mission, committees and subcommittees, sometimes one Congressman,

Page 354 U. S. 201

are endowed with the full power of the Congress to compel testimony. In this case, only two
men exercised that authority in demanding information over petitioner's protest.

An essential premise in this situation is that the House or Senate shall have instructed the
committee members on what they are to do with the power delegated to them. It is the
responsibility of the Congress, in the first instance, to insure that compulsory process is used
only in furtherance of a legislative purpose. That requires that the instructions to an
investigating committee spell out that group's jurisdiction and purpose with sufficient
particularity. Those instructions are embodied in the authorizing resolution. That document is
the committee's charter. Broadly drafted and loosely worded, however, such resolutions can
leave tremendous latitude to the discretion of the investigators. The more vague the
committee's charter is, the greater becomes the possibility that the committee's specific
actions are not in conformity with the will of the parent House of Congress.

The authorizing resolution of the Un-American Activities Committee was adopted in 1938,
when a select committee, under the chairmanship of Representative Dies, was created.
[Footnote 35] Several years later, the Committee was made a standing organ of the House
with the same mandate. [Footnote 36] It defines the Committee's authority as follows:

"The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to

make from time to time investigations of (1) the extent, character, and objects of un-
American propaganda activities in the United States, (2) the diffusion

Page 354 U. S. 202

12 | P a g e
within the United States of subversive and un-American propaganda that is instigated from
foreign countries or of a domestic origin and attacks the principle of the form of government
as guaranteed by our Constitution, and (3) all other questions in relation thereto that would
aid Congress in any necessary remedial legislation. [Footnote 37]"

It would be difficult to imagine a less explicit authorizing resolution. Who can define the
meaning of "un-American"? What is that single, solitary "principle of the form of government
as guaranteed by our Constitution"? [Footnote 38] There is no need to dwell upon the
language, however. At one time, perhaps, the resolution might have been read narrowly to
confine the Committee to the subject of propaganda. [Footnote 39] The events that have
transpired in the fifteen years before the interrogation of petitioner make such a construction
impossible at this date.

The members of the Committee have clearly demonstrated that they did not feel themselves
restricted in any way to propaganda in the narrow sense of the word. [Footnote 40]

Page 354 U. S. 203

Unquestionably, the Committee conceived of its task in the grand view of its name. Un-
American activities were its target, no matter how or where manifested. Notwithstanding the
broad purview of the Committee's experience, the House of Representatives repeatedly
approved its continuation. Five times it extended the life of the special committee. [Footnote
41] Then it made the group a standing committee of the House. [Footnote 42] A year later,
the Committee's charter was embodied in the Legislative Reorganization Act. [Footnote 43]
On five occasions, at the beginning of sessions of Congress, it has made the authorizing
resolution part of the rules of the House. [Footnote 44] On innumerable occasions, it has
passed appropriation bills to allow the Committee to continue its efforts.

Combining the language of the resolution with the construction it has been given, it is evident
that the preliminary control of the Committee exercised by the House

Page 354 U. S. 204

of Representatives is slight or nonexistent. No one could reasonably deduce from the charter
the kind of investigation that the Committee was directed to make. As a result, we are asked
to engage in a process of retroactive rationalization. Looking backward from the events that
transpired, we are asked to uphold the Committee's actions unless it appears that they were
clearly not authorized by the charter. As a corollary to this inverse approach, the Government
urges that we must view the matter hospitably to the power of the Congress -- that, if there is
any legislative purpose which might have been furthered by the kind of disclosure sought, the
witness must be punished for withholding it. No doubt every reasonable indulgence of
legality must be accorded to the actions of a coordinate branch of our Government. But such
deference cannot yield to an unnecessary and unreasonable dissipation of precious
constitutional freedoms.

The Government contends that the public interest at the core of the investigations of the Un-
American Activities Committee is the need by the Congress to be informed of efforts to
overthrow the Government by force and violence, so that adequate legislative safeguards can
be erected. From this core, however, the Committee can radiate outward infinitely to any
topic thought to be related in some way to armed insurrection. The outer reaches of this

13 | P a g e
domain are known only by the content of "un-American activities." Remoteness of subject
can be aggravated by a probe for a depth of detail even farther removed from any basis of
legislative action. A third dimension is added when the investigators turn their attention to the
past to collect minutiae on remote topics, on the hypothesis that the past may reflect upon the
present.

The consequences that flow from this situation are manifold. In the first place, a reviewing
court is unable

Page 354 U. S. 205

to make the kind of judgment made by the Court in United States v. Rumely, supra. The
Committee is allowed, in essence, to define its own authority,to choose the direction and
focus of its activities. In deciding what to do with the power that has been conferred upon
them, members of the Committee may act pursuant to motives that seem to them to be the
highest. Their decisions, nevertheless, can lead to ruthless exposure of private lives in order
to gather data that is neither desired by the Congress nor useful to it. Yet it is impossible in
this circumstance, with constitutional freedoms in jeopardy, to declare that the Committee has
ranged beyond the area committed to it by its parent assembly, because the boundaries are so
nebulous.

More important and more fundamental than that, however, it insulates the House that has
authorized the investigation from the witnesses who are subjected to the sanctions of
compulsory process. There is a wide gulf between the responsibility for the use of
investigative power and the actual exercise of that power. This is an especially vital
consideration in assuring respect for constitutional liberties. Protected freedoms should not be
placed in danger in the absence of a clear determination by the House or the Senate that a
particular inquiry is justified by a specific legislative need.

It is, of course, not the function of this Court to prescribe rigid rules for the Congress to
follow in drafting resolutions establishing investigating committees. That is a matter
peculiarly within the realm of the legislature, and its decisions will be accepted by the courts
up to the point where their own duty to enforce the constitutionally protected rights of
individuals is affected. An excessively broad charter like that of the House Un-American
Activities Committee places the courts in an untenable position if they are to strike a balance
between the public need for a particular interrogation and the right of

Page 354 U. S. 206

citizens to carry on their affairs free from unnecessary governmental interference. It is

impossible in such a situation to ascertain whether any legislative purpose justifies the
disclosures sought, and, if so, the importance of that information to the Congress in
furtherance of its legislative function. The reason no court can make this critical judgment is
that the House of Representatives itself has never made it. Only the legislative assembly
initiating an investigation can assay the relative necessity of specific disclosures.

Absence of the qualitative consideration of petitioner's questioning by the House of

Representatives aggravates a serious problem, revealed in this case, in the relationship of
congressional investigating committees and the witnesses who appear before them. Plainly,
these committees are restricted to the missions delegated to them, i.e., to acquire certain data

14 | P a g e
to be used by the House or the Senate in coping with a problem that falls within its legislative
sphere. No witness can be compelled to make disclosures on matters outside that area. This is
a jurisdictional concept of pertinency drawn from the nature of a congressional committee's
source of authority. It is not wholly different from nor unrelated to the element of pertinency
embodied in the criminal statute under which petitioner was prosecuted. When the definition
of jurisdictional pertinency is as uncertain and wavering as in the case of the Un-American
Activities Committee, it becomes extremely difficult for the Committee to limit its inquiries
to statutory pertinency.

Since World War II, the Congress has practically abandoned its original practice of utilizing
the coercive sanction of contempt proceedings at the bar of the House. The sanction there
imposed is imprisonment by the House until the recalcitrant witness agrees to testify or
disclose the matters sought, provided that the incarceration does

Page 354 U. S. 207

not extend beyond adjournment. The Congress has instead invoked the aid of the federal
judicial system in protecting itself against contumacious conduct. It has become customary to
refer these matters to the United States Attorneys for prosecution under criminal law.

The appropriate statute is found in 2 U.S.C. § 192. It provides:

"Every person who having been summoned as a witness by the authority of either House of
Congress to give testimony or to produce papers upon any matter under inquiry before either
House, or any joint committee established by a joint or concurrent resolution of the two
Houses of Congress, or any committee of either House of Congress, willfully makes default,
or who, having appeared, refuses to answer any question pertinent to the question under
inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than
$1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor
more than twelve months. [Footnote 45] "

Page 354 U. S. 208

In fulfillment of their obligation under this statute, the courts must accord to the defendants
every right which is guaranteed to defendants in all other criminal cases. Among these is the
right to have available, through a sufficiently precise statute, information revealing the
standard of criminality before the commission of the alleged offense. [Footnote 46] Applied
to persons prosecuted under § 192, this raises a special problem in that the statute defines the
crime as refusal to answer "any question pertinent to the question under inquiry." Part of the
standard of criminality, therefore, is the pertinency of the questions propounded to the
witness. [Footnote 47]

The problem attains proportion when viewed from the standpoint of the witness who appears
before a congressional committee. He must decide at the time the questions are propounded
whether or not to answer. As the Court said in Sinclair v. United States, 279 U. S. 263, the
witness acts at his peril. He is ". . . bound rightly to construe the statute." Id. at279 U. S. 299.
An erroneous determination on his part, even if made in the utmost good faith, does not
exculpate him if the court should later rule that the questions were pertinent to the question
under inquiry.

15 | P a g e
It is obvious that a person compelled to make this choice is entitled to have knowledge of the
subject to

Page 354 U. S. 209

which the interrogation is deemed pertinent. That knowledge must be available with the same
degree of explicitness and clarity that the Due Process Clause requires in the expression of
any element of a criminal offense. The "vice of vagueness" [Footnote 48] must be avoided
here, as in all other crimes. There are several sources that can outline the "question under
inquiry" in such a way that the rules against vagueness are satisfied. The authorizing
resolution, the remarks of the chairman or members of the committee, or even the nature of
the proceedings themselves, might sometimes make the topic clear. This case demonstrates,
however, that these sources often leave the matter in grave doubt.

The first possibility is that the authorizing resolution itself will so clearly declare the
"question under inquiry" that a witness can understand the pertinency of questions asked him.
The Government does not contend that the authorizing resolution of the Un-American
Activities Committee could serve such a purpose. Its confusing breadth is amply illustrated
by the innumerable and diverse questions into which the Committee has inquired under this
charter since 1938. If the "question under inquiry" were stated with such sweeping and
uncertain scope, we doubt that it would withstand an attack on the ground of vagueness.

That issue is not before us, however, in light of the Government's position that the immediate
subject under inquiry before the Subcommittee interviewing petitioner was only one aspect of
the Committee's authority to investigate un-American activities. Distilling that single topic
from the broad field is an extremely difficult task upon the record before us. There was an
opening statement by the Committee Chairman at the outset of the

Page 354 U. S. 210

hearing, but this gives us no guidance. In this statement, the Chairman did no more than
paraphrase the authorizing resolution and give a very general sketch of the past efforts of the
Committee. [Footnote 49]

Page 354 U. S. 211

No aid is given as to the "question under inquiry" in the action of the full Committee that
authorized the creation of the Subcommittee before which petitioner appeared. The
Committee adopted a formal resolution giving the Chairman the power to appoint
subcommittees ". . . for the purpose of performing any and all acts which the Committee as a
whole is authorized to do." [Footnote 50] In effect, this was a device to enable the
investigations to proceed with a quorum of one or two members and

Page 354 U. S. 212

sheds no light on the relevancy of the questions asked of petitioner. [Footnote 51]

The Government believes that the topic of inquiry before the Subcommittee concerned
Communist infiltration in labor. In his introductory remarks, the Chairman made reference to
a bill, then pending before the Committee, [Footnote 52] which would have penalized labor

16 | P a g e
unions controlled or dominated by persons who were, or had been, members of a
"Communist action" organization, as defined

Page 354 U. S. 213

in the Internal Security Act of 1950. The Subcommittee, it is contended, might have been
endeavoring to determine the extent of such a problem.

This view is corroborated somewhat by the witnesses who preceded and followed petitioner
before the Subcommittee. Looking at the entire hearings, however, there is strong reason to
doubt that the subject revolved about labor matters. The published transcript is entitled:
Investigation of Communist Activities in the Chicago Area, and six of the nine witnesses had
no connection with labor at all. [Footnote 53]

The most serious doubts as to the Subcommittee's "question under inquiry," however, stem
from the precise questions that petitioner has been charged with refusing to answer. Under
the terms of the statute, after all, it is these which must be proved pertinent. Petitioner is
charged with refusing to tell the Subcommittee whether or not he knew that certain named
persons had been members of the Communist Party in the past. The Subcommittee's counsel
read the list from the testimony of a previous witness who had identified them as
Communists. Although this former witness was identified with labor, he had not stated that
the persons he named were involved in union affairs. Of the thirty names propounded to
petitioner, seven were completely unconnected with organized labor. One operated a beauty
parlor. Another was a watchmaker. Several were identified as "just citizens" or "only
Communists." When

Page 354 U. S. 214

almost a quarter of the persons on the list are not labor people, the inference becomes strong
that the subject before the Subcommittee was not defined in terms of Communism in labor.

The final source of evidence as to the "question under inquiry" is the Chairman's response
when petitioner objected to the questions on the grounds of lack of pertinency. The Chairman
then announced that the Subcommittee was investigating "subversion and subversive
propaganda." [Footnote 54] This is a subject at least as broad and indefinite as the authorizing
resolution of the Committee, if not more so.

Having exhausted the several possible indicia of the "question under inquiry," we remain
unenlightened as to the subject to which the questions asked petitioner were pertinent.
Certainly, if the point is that obscure after trial and appeal, it was not adequately revealed to
petitioner when he had to decide at his peril whether or not to answer. Fundamental fairness
demands that no witness be compelled to make such a determination with so little guidance.
Unless the subject matter has been made to appear with undisputable clarity, it is the duty of
the investigative body, upon objection of the witness on grounds of pertinency, to state for
the record the subject

Page 354 U. S. 215

17 | P a g e
under inquiry at that time and the manner in which the propounded questions are pertinent
thereto. [Footnote 55] To be meaningful, the explanation must describe what the topic under
inquiry is and the connective reasoning whereby the precise questions asked relate to it.

The statement of the Committee Chairman in this case, in response to petitioner's protest, was
woefully inadequate to convey sufficient information as to the pertinency of the questions to
the subject under inquiry. Petitioner was thus not accorded a fair opportunity to determine
whether he was within his rights in refusing to answer, and his conviction is necessarily
invalid under the Due Process Clause of the Fifth Amendment.

We are mindful of the complexities of modern government and the ample scope that must be
left to the Congress as the sole constitutional depository of legislative power. Equally mindful
are we of the indispensable function, in the exercise of that power, of congressional
investigations. The conclusions we have reached in this case will not prevent the Congress,
through its committees, from obtaining any information it needs for the proper fulfillment of
its role in our scheme of government. The legislature is free to determine the kinds of data
that should be collected. It is only those investigations that are conducted by use of
compulsory process that give rise to a need to protect the rights of individuals against illegal
encroachment. That protection can be readily achieved through procedures which prevent the
separation of power from responsibility and which provide the constitutional requisites of
fairness for witnesses. A measure of added care on the part of the House and the Senate in
authorizing the use of compulsory process and by their committees in exercising that power
would suffice.

Page 354 U. S. 216

That is a small price to pay if it serves to uphold the principles of limited, constitutional
government without constricting the power of the Congress to inform itself.

The judgment of the Court of Appeals is reversed, and the case is remanded to the District
Court with instructions to dismiss the indictment.

It is so ordered.

MR. JUSTICE BURTON and MR. JUSTICE WHITTAKER took no part in the consideration
or decision of this case.

[Footnote 1]

R. 153-163; Hearings before the House of Representatives Committee on Un-American

Activities on Communist Activities in the Chicago Area -- Part 1, 82d Cong., 2d Sess. 3737-
3752.

[Footnote 2]

R. 135-149; Hearings before the House of Representatives Committee on Un-American

Activities on Investigation of Communist Activities in the Chicago Area -- Part 2, 83d Cong.,
2d Sess. 4243-4260.

[Footnote 3]

18 | P a g e
R. 75; Hearings, supra, note 2 Part 3, at 4268.

[Footnote 4]

Brief for Respondent, pp. 59-60.

[Footnote 5]

R. 886; Hearings, supra, note 2 Part 3, at 4275.

[Footnote 6]

There were nine citations of contempt voted at the same time. Petitioner's case was the
second to be acted upon. There was no debate other than a statement by Representative Javits
on a proposal to consolidate the legislative bodies investigating subversion. 100 Cong.Rec.
6382-6386. The resolution to prosecute petitioner passed by a voice vote.

There was lengthier discussion and a recorded vote on the first case considered by the
House. Id. at 6375-6382. In none of the cases was there any debate on the merits of the
witnesses' conduct. Id. at 6375-6401.

[Footnote 7]

The counts of the indictment were patterned from the sequence of the questioning by the
Committee. Petitioner was asked separately about six persons, and these are the basis of the
first six counts. The last count comprises the omnibus question that gave a list of twenty-five
names for petitioner to identify. With two exceptions, the questions asked for knowledge of
past membership in the Communist Party. The context of the interrogation indicates that the
Committee's concern was with such past conduct. Petitioner agreed to and did disclose his
knowledge of those he believed to be present members.

[Footnote 8]

"Now, we don't claim on behalf of the Government that there is any right to expose for the
purposes of exposure. And I don't know that Congress has ever claimed any such right. But
we do say, in the same breath, that there is a right to inform the public at the same time you
inform the Congress."

[Footnote 9]

Coke, Fourth Institute, 15.

[Footnote 10]

H.Comm. J. (1688-1693) 227; Jay v. Topham, 12 How.St.Tr. 822.

[Footnote 11]

Proceedings against Richard Thompson, 8 How.St.Tr. 2; Wittke, The History of English

Parliamentary Privilege, 50.

19 | P a g e
[Footnote 12]

"Floyd, for uttering a few contemptible expressions, was degraded from his gentility, and to
be held an infamous person; his testimony not to be received; to ride from the Fleet to
Cheapside on horseback, without a saddle, with his face to the horse's tail, and the tail in his
hand, and then to stand two hours in the pillory, and to be branded in the forehead with the
letter K; to ride four days afterwards in the same manner to Westminster, and then to stand
two hours more in the pillory, with words on a paper in his hat showing his offence; to be
whipped at the cart's tail from the Fleet to Westminster Hall; to pay a fine of 5000l., and to be
a prisoner in Newgate during his life."

1 De Lolme, The Rise and Progress of the English Constitution, 348.

[Footnote 13]

H.L.J. (1620-1628) 110-111, 113, 116, 124, 125, 127, 132, 133-134, 183; Wittke, 76-77. See
also Kelke, Constitutional Law and Cases, 155-156.

[Footnote 14]

H.L.J. (1675-1681) 54-55.

[Footnote 15]

Wittke, 122-123. With all his knavery, Wilkes was long a hero with certain persecuted groups
in England. Here, streets and other public places have been named for him and his writings.

[Footnote 16]

H.Comm.J. (1835) 533, 564-565, 571, 575.

[Footnote 17]

Finer, Congressional Investigations: The British System, 18 U. of Chi.L.Rev. 521, 554-561;

Smelser, Legislative Investigations: Safeguards for Witnesses: The Problem in Historical
Perspective, 29 Notre Dame Law. 163, 167; Clokie & Robinson, Royal Commissions of
Inquiry.

[Footnote 18]

Finer, 559; Smelser, 167; Clokie & Robinson, 186-187.

[Footnote 19]

See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40

Harv.L.Rev. 153, 168-191; Potts, Power of Legislative Bodies to Punish for Contempt, 74 U.
of Pa.L.Rev. 691, 719-725.

[Footnote 20]

20 | P a g e
The first case to reach this Court was Anderson v. Dunn, 6 Wheat. 204, which upheld the
power of the House of Representatives to reprimand a person for attempting to bribe a
member of the House.

[Footnote 21]

On December 31, 1827, the House Committee on Manufacturers was given the task of
inquiring into the effect that the proposed upward revision in the tariff schedules would have
upon domestic manufacturers. The power of the House to authorize a factfinding inquiry in
aid of legislation was seriously challenged. After full debate, the investigation was authorized
by a vote of 102 to 88. 4 Cong. Deb. 889.

[Footnote 22]

The subject matter of the select committee was

". . . the late invasion and seizure of the armory and arsenal of the United States at Harper's
Ferry, in Virginia, by a band of armed men. . . . And that said committee [shall] report
whether any and what legislation may, in their opinion, be necessary, on the part of the
United States, for the future preservation of the peace of the country, or for the safety of the
public property, and that said committee [shall] have power to send for persons and papers."

Cong.Globe, 36th Cong., 1st Sess. 141 (1859).

[Footnote 23]

60 Stat. 828-829. All standing committees in the Senate were invested with the power of
compulsory process. 60 Stat. 830-831. During the 83d Congress, two other standing
committees in the House of Representatives, the Appropriations and Government Operations
Committees, possessed that power. 99 Cong.Rec. 16-19.

[Footnote 24]

The first court that was called upon to review the constitutional validity of a legislative
inquiry was the New York Court of Common Pleas. The case arose out of the inquiry by the
Common Council of New York into the conduct of the Police Department in 1855. Judge
Charles Patrick Daly upheld the investigative power as implicit in the functions of a
legislature, but ruled that the examination of witnesses must be confined to the subject under
investigation. Applying this standard, he ruled that questions directed to the national origin of
policemen were improper under the investigators' authorizing resolution. Briggs v.
Mackeller, 2 Abbott's Practice Reports 30 (N.Y. Common Pleas 1855).

[Footnote 25]

In re Chapman, 166 U. S. 661 (upheld conviction under R.S. § 102, forerunner of 2 U.S.C. §
192, for refusal to answer questions in inquiry into charges of corruption among certain
Senators with respect to pending bill on sugar tariff); cf. Marshall v. Gordon, 243 U. S. 521.

[Footnote 26]

21 | P a g e
Jurney v. MacCracken, 294 U. S. 125 (upheld power of Senate to punish as a contempt the
action of a witness in allowing the destruction and removal of papers subject to the subpoena
of a Senate committee; held that enactment of 2 U.S.C. § 192 did not impair contempt power
of Houses of Congress).

[Footnote 27]

The first reported case in which the claim of the privilege against self-incrimination was
allowed in a congressional inquiry proceeding was United States v. Yukio Abe, 95 F.Supp.
991. Prior thereto, several state courts had held that legislative investigations were subject to
the witness' privilege not to accuse himself under state constitutions. Emery's Case, 107
Mass. 172, decided in 1871, is the earliest. See also Ex parte Johnson, 187 S.C. 1, 196 S.E.
164.

[Footnote 28]

E.g., Excerpts from Hearings before the House of Representatives Committee on Un-
American Activities -- Regarding Investigation of Communist Activities in Connection with
the Atom Bomb, 80th Cong., 2d Sess. 5; N.Y. Herald Tribune, Sept. 6, 1948, p. 3, col. 6-7.

[Footnote 29]

Appropriateness of the privilege has been upheld without question in many cases arising out
of congressional inquiry.See, e.g., Starkovich v. United States, 231 F.2d 411; Aiuppa v.
United States, 201 F.2d 287; United States v. Costello, 198 F.2d 200; Marcello v. United
States, 196 F.2d 437; United States v. Di Carlo, 102 F.Supp. 597; United States v.
Licavoli, 102 F.Supp. 607; United States v. Cohen, 101 F.Supp. 906; United States v.
Jaffe, 98 F.Supp. 191; United States v. Fitzpatrick, 96 F.Supp. 491; United States v. Raley, 96
F.Supp. 495; United States v. Yukio Abe, 95 F.Supp. 991.

[Footnote 30]

The first reported decision, made in 1947, grew out of the inquiry of the Un-American
Activities Committee into certain organizations suspected of subversive actions.
Subpoenas duces tecum had been issued calling for the correspondence and other records of
these organizations. Refusals to comply were followed by prosecutions under 2 U.S.C. § 192.
The District Court denied motions to dismiss the indictments in United States v. Bryan, 72
F.Supp. 58. The decision with respect to the First Amendment was affirmed in Barsky v.
United States, 167 F.2d 241.

[Footnote 31]

See United States v. Rumely, 345 U. S. 41, 345 U. S. 43-44; Lawson v. United States, 176
F.2d 49, 51-52; Barsky v. United States, 167 F.2d 241, 244-250; United States v.
Josephson, 165 F.2d 82, 90-92.

[Footnote 32]

In a report to the House, the Committee declared:

22 | P a g e
"While Congress does not have the power to deny to citizens the right to believe in, teach, or
advocate, communism, fascism, and naziism, it does have the right to focus the spotlight of
publicity upon their activities. . . ."

H.R.Rep. No. 2, 76th Cong., 1st Sess. 13.

A year later, the Committee reported that ". . . investigation to inform the American people . .
. is the real purpose of the House Committee." H.R.Rep. No. 1476, 76th Cong., 3d Sess. 1-2.

A pamphlet issued by the Committee in 1951 stated that: "Exposure in a systematic way
began with the formation of the House Committee on Un-American Activities, May 26,
1938." The Committee believed itself commanded ". . . to expose people and organizations
attempting to destroy this country. That is still its job, and to that job it sticks." 100 Things
You Should Know About Communism, H.R.Doc. No. 136, 82d Cong., 1st Sess.19, 67.

In its annual reports, the Committee has devoted a large part of its information to a public
listing of names along with a summary of their activities.

". . . [T]he committee feels that the Congress and the American people will have a much
clearer and fuller picture of the success and scope of communism in the United States by
having set forth the names and, where possible, the positions occupied by individuals who
have been identified as Communists, or former Communists, during the past year."

H.R.Rep. No. 2516, 82d Cong., 2d Sess. 6-7.

[Footnote 33]

We are not concerned with the power of the Congress to inquire into and publicize
corruption, maladministration or inefficiency in agencies of the Government. That was the
only kind of activity described by Woodrow Wilson in Congressional Government when he
wrote: "The informing function of Congress should be preferred even to its legislative
function." Id. at 303. From the earliest times in its history, the Congress has assiduously
performed an "informing function" of this nature. See Landis, Constitutional Limitations on
the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 168-194.

[Footnote 34]

Compare the treatment of this point in Barenblatt v. United States, 240 F.2d 875, 880-
881; Morford v. United States, 176 F.2d 54, 58; Eisler v. United States, 170 F.2d 273, 278-
279; United States v. Josephson, 165 F.2d 82, 89, and United States v. Kamin, 136 F.Supp.
791, 800-801.

[Footnote 35]

H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec. 7568, 7586.

[Footnote 36]

H.Res. 5, 79th Cong., 1st Sess., 91 Cong.Rec. 10, 15.

23 | P a g e
[Footnote 37]

H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 18, 24.

[Footnote 38]

For contrasting views, see Morford v. United States, 176 F.2d 54, 57-58, and Barsky v.
United States, 167 F.2d 241, 247-248.

[Footnote 39]

The language of the resolution was obviously taken from the Dickstein resolution, which
established the McCormack Committee in 1934 to study Nazi and other propaganda sent into
the United States from foreign countries. H.Res.198, 73d Cong., 2d Sess., 78 Cong.Rec.
4934, 4949.

[Footnote 40]

In 1947, Judge Charles E. Clark, now Chief Judge of the Court of Appeals for the Second
Circuit, wrote about the Committee:

"Suffice it to say here that its range of activity has covered all varieties of organizations,
including the American Civil Liberties Union, the C.I.O., the National Catholic Welfare
Conference, the Farmer-Labor party, the Federal Theatre Project, consumers' organizations,
various publications from the magazine 'Time' to the 'Daily Worker,' and varying forms and
types of industry, of which the recent investigation of the movie industry is fresh in the public
mind. While it has avoided specific definition of what it is seeking, it has repeatedly inquired
as to membership in the Communist party and in other organizations which it regards as
communist controlled or affected."

United States v. Josephson, 165 F.2d 82, 95 (dissent). See also the dissenting opinion of
Judge Henry W. Edgerton, now Chief Judge of the Court of Appeals for the District of
Columbia Circuit, in Barsky v. United States, 83 U.S.App.D.C. 127, at 143, 167 F.2d 241, at
257.

[Footnote 41]

H.Res. 26, 76th Cong., 1st Sess., 84 Cong.Rec. 1098, 1127-1128; H.Res. 321, 76th Cong., 3d
Sess., 86 Cong.Rec. 572, 604-605; H.Res. 90, 77th Cong., 1st Sess., 87 Cong.Rec. 886, 899;
H.Res. 420, 77th Cong., 2d Sess., 88 Cong.Rec. 2282, 2297; H.Res. 65, 78th Cong., 1st Sess.,
89 Cong.Rec. 795, 809-810.

[Footnote 42]

91 Cong.Rec. 10, 15.

[Footnote 43]

60 Stat. 812, 828.

24 | P a g e
[Footnote 44]

H.Res. 5, 80th Cong., 1st Sess., 93 Cong.Rec. 38; H.Res. 5, 81st Cong., 1st Sess., 95
Cong.Rec. 10; H.Res. 7, 82d Cong., 1st Sess., 97 Cong.Rec. 17, 19; H.Res. 5, 83d Cong., 1st
Sess., 99 Cong.Rec. 15; H.Res. 5, 84th Cong., 1st Sess., 101 Cong.Rec. 11.

[Footnote 45]

This statute was passed in 1857 as a direct result of an incident which caused the Congress to
feel that it needed more severe sanctions to compel disclosures than were available in the
historical procedure of summoning the recalcitrant witness before the bar of either House of
Congress and ordering him held in custody until he agreed to testify. Such imprisonment is
valid only so long as the House remains in session. See Anderson v. Dunn, 6 Wheat. 204, 19
U. S. 231; Eberling, Congressional Investigations, 180-184.

The immediate cause for adoption of the statute was an accusation by one J. W. Simonton, a
newspaperman, that certain unnamed Congressmen were soliciting bribes on a matter
pending before the legislature. Simonton was cited before the House of Representatives and
refused to divulge the names of those implicated. In the course of that episode, the forerunner
of 2 U.S.C. § 192 was passed in order ". . . to inflict a greater punishment than the committee
believe the House possesses the power to inflict." Cong.Globe, 34th Cong., 3d Sess. 405. See
also id. at 403-413, 426-433, 434-445. Thereafter, having been in custody more than two
weeks, Simonton testified to the satisfaction of the committee, and was discharged. 3 Hinds'
Precedents § 1669.

[Footnote 46]

United States v. Harriss, 347 U. S. 612; United States v. Cardiff, 344 U. S. 174; Winters v.
New York, 333 U. S. 507; Musser v. Utah, 333 U. S. 95; Lanzetta v. New Jersey, 306 U. S.
451.

[Footnote 47]

United States v. Orman, 207 F.2d 148; Bowers v. United States, 202 F.2d 447; United States
v. Kamin, 135 F.Supp. 382, 136 F.Supp. 791.

[Footnote 48]

United States v. Josephson, 165 F.2d 82, 88.

[Footnote 49]

"The committee will be in order. I should like to make an opening statement regarding our
work here in the city of Chicago. The Congress of the United States, realizing that there are
individuals and elements in this country whose aim it is to subvert our constitutional form of
government, has established the House Committee on Un-American Activities. In
establishing this committee, the Congress has directed that we must investigate and hold
hearings, either by the full committee or by a subcommittee, to ascertain the extent and
success of subversive activities directed against these United States."

25 | P a g e
"On the basis of these investigations and hearings, the Committee on Un-American Activities
reports its findings to the Congress and makes recommendations from these investigations
and hearings for new legislation. As a result of this committee's investigations and hearings,
the Internal Security Act of 1950 was enacted."

"Over the past fifteen years this committee has been in existence, both as a special and
permanent committee, it has made forty-seven recommendations to the Congress to insure
proper security against subversion. I am proud to be able to state that, of these forty-seven
recommendations, all but eight have been acted upon in one way or another. Among these
recommendations which the Congress has not acted upon are those which provide that
witnesses appearing before congressional committees be granted immunity from prosecution
on the information they furnish."

"The committee has also recommended that evidence secured from confidential devices be
admissible in cases involving the national security. The executive branch of Government has
now also asked the Congress for such legislation. A study is now being made of various bills
dealing with this matter."

"The Congress has also referred to the House Committee on Un-American Activities a bill
which would amend the National Security Act of 1950. This bill, if enacted into law, would
provide that the Subversive Activities Control Board should, after suitable hearings and
procedures, be empowered to find if certain labor organizations are, in fact, Communist
controlled action groups. Following this action, such labor groups would not have available
the use of the National Labor Relations Board as they now have under the provisions of the
Labor-Management Relations Act of 1947."

"During the first session of this 83rd Congress, the House Un-American Activities
Committee has held hearings in Los Angeles and San Francisco, California; Albany and New
York City, New York; Philadelphia, Pennsylvania, and Columbus, Ohio. We are here in
Chicago, Illinois, realizing that this is the center of the great midwestern area of the United
States."

"It cannot be said that subversive infiltration has had a greater nor a lesser success in
infiltrating this important area. The hearings today are the culmination of an investigation that
has been conducted by the committee's competent staff and is a part of the committee's
intention for holding hearings in various parts of the country."

"The committee has found that, by conducting its investigations and holding hearings in
various parts of the country, it has been able to secure a fuller and more comprehensive
picture of subversive efforts throughout our nation. Every witness who has been subpoenaed
to appear before the committee here in Chicago, as in all hearings conducted by this
committee, are [sic] known to possess information which will assist the committee in
performing its directed function to the Congress of the United States."

(R. 43-44; Hearing, supra, note 2 Part 1, at 4165-4166.)

[Footnote 50]

The Committee convened in executive session on January 22, 1953, and adopted the
following resolution:

26 | P a g e
"BE IT RESOLVED, that the Chairman shall have authority from time to time to appoint
subcommittees composed of one or more members of the Committee on Un-American
Activities for the purpose of performing any and all acts which the Committee as a whole is
authorized to do."

(R. 91.)

[Footnote 51]

The original resolution authorizing subcommittees was amended on March 3, 1954, to require
any subcommittee to consist of at least three members, two of whom could constitute a
quorum. (R. 92.)

Petitioner appeared before a subcommittee composed at the outset of four members. After a
recess in the course of his testimony, only two committeemen were present. It was during this
latter phase of his testimony that petitioner refused to answer the questions involved in this
case.

[Footnote 52]

The bill pending at the time of the Chairman's remarks, March 15, 1954, and when petitioner
testified a month later was H.R. 7487, 100 Cong.Rec. 763. No action was ever taken on this
proposal. Introduced by Representative Velde, it would have withdrawn the rights, privileges
and benefits under the National Labor Relations Act of any labor organization which was
substantially directed, dominated or controlled by persons who were or ever had been
members of a "Communist action organization," as that phrase is used in the Internal Security
Act.

On July 6, 1954, after extensive hearings, the Senate Judiciary Committee reported favorably
on S. 3706, a bill drafted by that committee to amend the Internal Security Act. Two days
later, Representative Velde introduced H.R. 9838, which was identical to S. 3706. These bills
eventually became law. 68 Stat. 775. The Act created the concept of a "Communist infiltrated
organization," and part of its provisions declared that a labor union that came within that
definition should be barred from the rights, privileges and benefits of the National Labor
Relations Act. The same sanctions were applied to a labor group that was a "Communist
action" or "Communist front organization" under the original Internal Security Act.

[Footnote 53]

The first four witnesses testified principally about the Communist Party activities of an
employee of the National Cancer Institute of the United States Public Health Service. A
Chicago attorney related to the Subcommittee his experiences with Communist youth
organizations during his college days. The sixth witness told of her work as a district
organizer for the Communist Party in Montana, Wyoming, Idaho and the Dakotas during the
1930's.

[Footnote 54]

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"This committee is set up by the House of Representatives to investigate subversion and
subversive propaganda and to report to the House of Representatives for the purpose of
remedial legislation."

"The House of Representatives has, by a very clear majority, a very large majority, directed
us to engage in that type of work, and so we do, as a committee of the House of
Representatives, have the authority, the jurisdiction, to ask you concerning your activities in
the Communist Party, concerning your knowledge of any other persons who are members of
the Communist Party or who have been members of the Communist Party, and so, Mr.
Watkins, you are directed to answer the question propounded to you by counsel."

(R. 86; Hearings, supra, note 2 Part 3, at 4275-4276.)

[Footnote 55]

Cf. United States v. Kamin, 136 F.Supp. 791, 800.

MR. JUSTICE FRANKFURTER, concurring.

I deem it important to state what I understand to be the Court's holding. Agreeing with its
holding, I join its opinion.

The power of the Congress to punish for contempt of its authority is, as the Court points out,
rooted in history. It has been acknowledged by this Court since 1821. Anderson v. Dunn, 6
Wheat. 204. Until 1857, Congress was content to punish for contempt through its own
process. By the Act of January 24, 1857, 11 Stat. 155, as amended by the Act of January 24,
1862, 12 Stat. 333, Congress provided that, "in addition to the pains and penalties now
existing" (referring, of course, to the power of Congress itself to punish for contempt),

"contumacy in a witness called to testify in a matter properly under consideration by either

House, and deliberately refusing to answer questions pertinent thereto, shall be a
misdemeanor against the United States."

In re Chapman, 166 U. S. 661, 166 U. S. 672. This legislation is now 2 U.S.C. 192. By thus
making the federal judiciary the affirmative agency for enforcing the authority that underlies
the congressional power to punish for contempt, Congress necessarily brings into play the
specific provisions of the Constitution relating to the prosecution of offenses and those
implied restrictions under which courts function.

Page 354 U. S. 217

To turn to the immediate problem before us, the scope of inquiry that a committee is
authorized to pursue must be defined with sufficiently unambiguous clarity to safeguard a
witness from the hazards of vagueness in the enforcement of the criminal process against
which the Due Process Clause protects. The questions must be put with relevance and
definiteness sufficient to enable the witness to know whether his refusal to answer may lead
to conviction for criminal contempt and to enable both the trial and the appellate courts
readily to determine whether the particular circumstances justify a finding of guilt.

28 | P a g e
While implied authority for the questioning by the Committee, sweeping as was its inquiry,
may be squeezed out of the repeated acquiescence by Congress in the Committee's inquiries,
the basis for determining petitioner's guilt is not thereby laid. Prosecution for contempt of
Congress presupposes an adequate opportunity for the defendant to have awareness of the
pertinency of the information that he has denied to Congress. And the basis of such
awareness must be contemporaneous with the witness' refusal to answer and not at the trial
for it. Accordingly, the actual scope of the inquiry that the Committee was authorized to
conduct and the relevance of the questions to that inquiry must be shown to have been
luminous at the time when asked and not left, at best, in cloudiness. The circumstances of this
case were wanting in these essentials.

MR. JUSTICE CLARK, dissenting.

As I see it, the chief fault in the majority opinion is its mischievous curbing of the informing
function of the Congress. While I am not versed in its procedures, my experience in the
Executive Branch of the Government leads me to believe that the requirements laid down in
the opinion for the operation of the committee system of

Page 354 U. S. 218

inquiry are both unnecessary and unworkable. It is my purpose to first discuss this phase of
the opinion, and then record my views on the merits of Watkins' case.

It may be that, at times the House Committee on Un-American Activities has, as the Court
says, "conceived of its task in the grand view of its name." And, perhaps, as the Court
indicates, the rules of conduct placed upon the Committee by the House admit of individual
abuse and unfairness. But that is none of our affair. So long as the object of a legislative
inquiry is legitimate and the questions propounded are pertinent thereto, it is not for the
courts to interfere with the committee system of inquiry. To hold otherwise would be an
infringement on the power given the Congress to inform itself, and thus a trespass upon the
fundamental American principle of separation of powers. The majority has substituted the
judiciary as the grand inquisitor and supervisor of congressional investigations. It has never
been so.

II

Legislative committees to inquire into facts or conditions for assurance of the public welfare
or to determine the need for legislative action have grown in importance with the complexity
of government. The investigation that gave rise to this prosecution is of the latter type. Since
many matters requiring statutory action lie in the domain of the specialist or are unknown
without testimony from informed witnesses, the need for information has brought about
legislative inquiries that have used the compulsion of the subpoena to lay bare needed facts
and a statute, 2 U.S.C. § 192 here involved, to punish recalcitrant witnesses. The propriety of
investigations has long been recognized and rarely curbed by the courts, though

Page 354 U. S. 219

29 | P a g e
constitutional limitations on the investigatory powers are admitted. [Footnote 2/1] The use of
legislative committees to secure information follows the example of the people from whom
our legislative system is derived. The British method has variations from that of the United
States, but fundamentally serves the same purpose -- the enlightenment of Parliament for the
better performance of its duties. There are standing committees to carry on the routine work,
royal commissions to grapple with important social or economic problems, and special
tribunals of inquiry for some alleged offense in government. [Footnote 2/2] Our Congress
has, since its beginning, used the committee system to inform itself. It has been estimated that
over 600 investigations have been conducted since the First Congress. They are "a necessary
and appropriate attribute of the power to legislate. . . ." McGrain v. Daugherty, 273 U. S.
135, 273 U. S. 175 (1927).

The Court indicates that, in this case, the source of the trouble lies in the "tremendous
latitude" given the Un-American Activities Committee in the Legislative Reorganization Act.
[Footnote 2/3] It finds that the Committee "is

Page 354 U. S. 220

allowed, in essence, to define its own authority, [and] to choose the direction and focus of its
activities." This, of course, is largely true of all committees within their respective spheres.
And, while it is necessary that the "charter," as the opinion calls the enabling resolution,
"spell out [its] jurisdiction and purpose," that must necessarily be in more or less general
terms. An examination of the enabling resolutions of other committees reveals the extent to
which this is true.

Permanent or standing committees of both Houses have been given power in exceedingly
broad terms. For example, the Committees on the Armed Services have jurisdiction over
"Common defense generally"; [Footnote 2/4] the Committees on Interstate and Foreign
Commerce have

Page 354 U. S. 221

jurisdiction over "Interstate and foreign commerce generally"; [Footnote 2/5] and the
Committees on Appropriation have jurisdiction over "Appropriation of the revenue for the
support of the Government." [Footnote 2/6] Perhaps even more important for purposes of
comparison are the broad authorizations given to select or special committees established by
the Congress from time to time. Such committees have been "authorized and directed" to
make full and complete studies "of whether organized crime utilizes the facilities of interstate
commerce or otherwise operates in interstate commerce"; [Footnote 2/7] "of . . . all lobbying
activities intended to influence, encourage, promote, or retard legislation"; [Footnote 2/8]

"to determine the extent to which current

Page 354 U. S. 222

literature . . . containing immoral [or] obscene . . . matter, or placing improper emphasis on

crime . . . are being made available to the people of the United States . . . ; [Footnote 2/9]"

and

30 | P a g e
"of the extent to which criminal or other improper practices . . . are, or have been, engaged in
in the field of labor-management relations . . . to the detriment of the interests of the public. .
. . [Footnote 2/10]"

(Emphasis added in each example.) Surely these authorizations permit the committees even
more "tremendous latitude" than the "charter" of the Un-American Activities Committee. Yet
no one has suggested that the powers granted were too broad. To restrain and limit the
breadth of investigative power of this Committee necessitates the similar handling of all other
committees. The resulting restraint imposed on the committee system appears to cripple the
system beyond workability.

The Court finds fault with the use made of compulsory process, power for the use of which is
granted the Committee

Page 354 U. S. 223

in the Reorganization Act. While the Court finds that the Congress is free "to determine the
kinds of data" it wishes its committees to collect, this has led the Court says, to an
encroachment on individual rights through the abuse of process. To my mind, this indicates a
lack of understanding of the problems facing such committees. I am sure that the committees
would welcome voluntary disclosure. It would simplify and relieve their burden considerably
if the parties involved in investigations would come forward with a frank willingness to
cooperate. But everyday experience shows this just does not happen. One needs only to read
the newspapers to know that the Congress could gather little "data" unless its committees
had, unfettered, the power of subpoena. In fact, Watkins himself could not be found for
appearance at the first hearing, and it was only by subpoena that he attended the second. The
Court generalizes on this crucial problem, saying

"added care on the part of the House and the Senate in authorizing the use of compulsory
process and by their committees in exercising that power would suffice."

It does not say how this "added care" could be applied in practice; however, there are many
implications, since the opinion warns that "procedures which prevent the separation of power
from responsibility" would be necessary along with "constitutional requisites of fairness for
witnesses." The "power" and "responsibility" for the investigations are, of course, in the
House where the proceeding is initiated. But the investigating job itself can only be done
through the use of committees. They must have the "power" to force compliance with their
requirements. If the rule requires that this power be retained in the full House, then
investigations will be so cumbrous that their conduct will be a practical impossibility. As to
"fairness for witnesses," there is nothing in the record showing any abuse of Watkins. If
anything, the Committee was abused by his recalcitrance.

Page 354 U. S. 224

While ambiguity prevents exactness (and there is "vice in vagueness," the majority reminds),
the sweep of the opinion seems to be that "preliminary control" of the Committee must be
exercised. The Court says a witness' protected freedoms cannot "be placed in danger in the
absence of a clear determination by the House or the Senate that a particular inquiry is
justified by a specific legislative need." Frankly I do not see how any such procedure as
"preliminary control" can be effected in either House of the Congress. What will be

31 | P a g e
controlled preliminarily? The plans of the investigation, the necessity of calling certain
witnesses, the questions to be asked, the details of subpoenas duces tecum, etc.? As it is now,
Congress is hard-pressed to find sufficient time to fully debate and adopt all needed
legislation. The Court asserts that

"the Congress has practically abandoned its original practice of utilizing the coercive sanction
of contempt proceedings at the bar of the House."

This was to be expected. It may be that, back in the twenties and thirties, Congress could
spare the time to conduct contempt hearings, but that appears impossible now. The Court
places a greater burden in the conduct of contempt cases before the courts than it does before
"the bar of the House." It cites with approval cases of contempt tried before a House of the
Congress where no more safeguards were present than we find here. In contempt
prosecutions before a court, however, the majority places an investigative hearing on a par
with a criminal trial, requiring that

"knowledge of the subject to which the interrogation is deemed pertinent . . . must be

available [to the witness] with the same degree of explicitness and clarity that the Due
Process Clause requires in the expression of any element of a criminal offense."

I know of no such claim ever being made before. Such a requirement has never been thought
applicable to investigations, and is wholly out of place when related to the informing function

Page 354 U. S. 225

of the Congress. See Frankfurter, Hands Off The Investigations, 38 New Republic, May 21,
1924, p. 329, 65 Cong.Rec. 9080-9082. The Congress does not have the facts at the time of
the investigation, for it is the facts that are being sought. In a criminal trial, the investigation
has been completed, and all of the facts are at hand. The informing function of the Congress
is, in effect, "a study by the government of circumstances which seem to call for study in the
public interest." See Black, Inside a Senate Investigation, 172 Harper's Magazine, Feb.1936,
pp.275, 278. In the conduct of such a proceeding, it is impossible to be as explicit and exact
as in a criminal prosecution. If the Court is saying that its new rule does not apply to
contempt cases tried before the bar of the House affected, it may well lead to trial of all
contempt cases before the bar of the whole House in order to avoid the restrictions of the rule.
But this will not promote the result desired by the majority. Summary treatment, at best,
could be provided before the whole House because of the time factor, and such treatment
would necessarily deprive the witness of many of the safeguards in the present procedures.
On review here, the majority might then find fault with that procedure.

III

Coming to the merits of Watkins' case, the Court reverses the judgment because: (1) The
subject matter of the inquiry was not "made to appear with undisputable clarity" either
through its "charter" or by the Chairman at the time of the hearing and, therefore, Watkins
was deprived of a clear understanding of "the manner in which the propounded questions
[were] pertinent thereto", and (2) the present committee system of inquiry of the House, as
practiced by the Un-American Activities Committee, does not provide adequate safeguards
for the protection

32 | P a g e
Page 354 U. S. 226

of the constitutional right of free speech. I subscribe to neither conclusion.

Watkins had been an active leader in the labor movement for many years, and had been
identified by two previous witnesses at the Committee's hearing in Chicago as a member of
the Communist Party. There can be no question that he was fully informed of the subject
matter of the inquiry. His testimony reveals a complete knowledge and understanding of the
hearings at Chicago. There, the Chairman had announced that the Committee had been
directed

"to ascertain the extent and success of subversive activities directed against these United
States [and] on the basis of these investigations and hearings . . . [report] its findings to the
Congress and [make] recommendations . . . for new legislation."

He pointed to the various laws that had been enacted as a result of Committee
recommendations. He stated that

"The Congress has also referred to the House Committee on Un-American Activities a bill
which would amend the National Security Act of 1950"

which, if made law, would restrict the availability of the Labor Act to unions not "in fact
Communist controlled action groups." The Chairman went on to say that

"It cannot be said that subversive infiltration has had a greater nor a lesser success in
infiltrating this important area. The hearings today are the culmination of an investigation. . . .
Every witness who has been subpoenaed to appear before the committee here in Chicago . . .
[is] known to possess information which will assist the Committee in performing its directed
function to the Congress of the United States."

A subpoena had issued for Watkins to appear at the Chicago hearings, but he was not served.
After Watkins was served, the hearing in question was held in Washington, D.C. Reference at
this hearing was made to the one conducted in Chicago. Watkins came before the

Page 354 U. S. 227

Committee with a carefully prepared statement. He denied certain testimony of the previous
witnesses, and declared that he had never been a "card-carrying member" of the Party. He
admitted that, for the period 1942-1947, he

"cooperated with the Communist Party . . . participated in Communist activities . . . made

contributions . . . attended caucuses at [his union's] convention at which Communist Party
officials were present . . . [and] freely cooperated with the Communist Party. . . ."

This indicated that, for a five-year period he, a union official, was cooperating closely with
the Communist Party -- even permitting its officials to attend union caucuses. For the last two
years of this liaison, the Party had publicly thrown off its cloak of a political party. It was a
reconstituted, militant group known to be dedicated to the overthrow of our Government by
force and violence. In this setting, the Committee attempted to have Watkins identify 30
persons, most of whom were connected with labor unions in some way. While one "operated

33 | P a g e
a beauty parlor" and another was "a watchmaker," they may well have been "drops" or other
functionaries in the program of cooperation between the union and the Party. It is a non
sequitur for the Court to say that, since

"almost a quarter of the persons on the list are not labor people, the inference becomes strong
that the subject before the Subcommittee was not defined in terms of Communism in labor."

I submit that the opposite is true.

IV

I think the Committee here was acting entirely within its scope, and that the purpose of its
inquiry was set out with "undisputable clarity." In the first place, the authorizing language of
the Reorganization Act [Footnote 2/11] must be read as a whole, not dissected. It authorized
investigation

Page 354 U. S. 228

into subversive activity, its extent, character, objects, and diffusion. While the language
might have been more explicit than using such words as "un-American," or phrases like
"principle of the form of government," still, these are fairly well understood terms. We must
construe them to give them meaning if we can. Our cases indicate that, rather than finding
fault with the use of words or phrases, we are bound to presume that the action of the
legislative body in granting authority to the Committee was with a legitimate object "if [the
action] is capable of being so construed." (Emphasis added.) People ex rel. McDonald v.
Keeler, 99 N.Y. 463, 487, 2 N.E. 615, 627-628 (1885), as quoted and approved in McGrain v.
Daugherty, supra, at 273 U. S. 178. Before we can deny the authority, "it must be obvious
that" the Committee has "exceeded the bounds of legislative power." Tenney v.
Brandhove, 341 U. S. 367, 341 U. S. 378 (1951). The fact that the Committee has often been
attacked has caused close scrutiny of its acts by the House as a whole, and the House has
repeatedly given the Committee its approval. "Power" and "responsibility" have not been
separated. But the record in this case does not stop here. It shows that, at the hearings
involving Watkins, the Chairman made statements explaining the functions of the
Committee. [Footnote 2/12] And, furthermore, Watkins' action at the hearing

Page 354 U. S. 229

clearly reveals that he was well acquainted with the purpose of the hearing. It was to
investigate Communist infiltration into his union. This certainly falls within the grant of
authority from the Reorganization Act, and the House has had ample opportunity to limit the
investigative scope of the Committee if it feels that the Committee has exceeded its legitimate
bounds.

The Court makes much of petitioner's claim of "exposure for exposure's sake," and strikes at
the purposes of the Committee through this catch phrase. But we are bound to accept as the
purpose of the Committee that stated in the Reorganization Act, together with the statements
of the Chairman at the hearings involved here. Nothing was said of exposure. The statements
of a single Congressman cannot transform the real purpose of the Committee into something
not authorized by the parent resolution. See United States v. Rumely, 345 U. S.
41 (1953); Sinclair v. United States, 279 U. S. 263, 279 U. S. 290, 295 (1929). The Court

34 | P a g e
indicates that the questions propounded were asked for exposure's sake, and had no
pertinency to the inquiry. It appears to me that they were entirely pertinent to the announced
purpose of the Committee's inquiry. Undoubtedly Congress has the power to inquire into the
subjects of communism and the Communist Party. American Communications Assn. v.
Douds, 339 U. S. 382 (1950). As a corollary of the congressional power to inquire into such
subject matter, the Congress, through its committees, can legitimately seek to identify
individual members of the Party. Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d
241 (1948), cert. denied, 334 U.S. 843. See also Lawson v. United States, 85 U.S.App.D.C.
167, 17 171, 176 F.2d 49, 52-53

Page 354 U. S. 230

(1949), cert. denied, 339 U.S. 934; United States v. Josephson, 165 F.2d 82, 90-92
(1947), cert. denied, 333 U.S. 838.

The pertinency of the questions is highlighted by the need for the Congress to know the
extent of infiltration of communism in labor unions. This technique of infiltration was that
used in bringing the downfall of countries formerly free but now still remaining behind the
Iron Curtain. The Douds case illustrates that the Party is not an ordinary political party, and
has not been, at least since 1945. Association with its officials is not an ordinary association.
Nor does it matter that the questions related to the past. Influences of past associations often
linger on, as was clearly shown in the instance of the witness Matusow and others. The
techniques used in the infiltration which admittedly existed here might well be used again in
the future. If the parties about whom Watkins was interrogated were Communists and
collaborated with him, as a prior witness indicated, an entirely new area of investigation
might have been opened up. Watkins' silence prevented the Committee from learning this
information which could have been vital to its future investigation. The Committee was
likewise entitled to elicit testimony showing the truth or falsity of the prior testimony of the
witnesses who had involved Watkins and the union with collaboration with the Party. If the
testimony was untrue, a false picture of the relationship between the union and the Party
leaders would have resulted. For these reasons, there were ample indications of the
pertinency of the questions.

The Court condemns the long-established and long-recognized committee system of inquiry
of the House because it raises serious questions concerning the protection it affords to
constitutional rights. It concludes that compelling

Page 354 U. S. 231

a witness to reveal his "beliefs, expressions or associations" impinges upon First Amendment
rights. The system of inquiry, it says, must

"insure that the Congress does not unjustifiably encroach upon an individual's right to
privacy, nor abridge his liberty of speech, press, religion or assembly."

In effect, the Court honors Watkins' claim of a "right to silence" which brings all inquiries, as
we know, to a "dead end." I do not see how any First Amendment rights were endangered
here. There is nothing in the First Amendment that provides the guarantees Watkins claims.

35 | P a g e
That Amendment was designed to prevent attempts by law to curtail freedom of
speech. Whitney v. California, 274 U. S. 357, 274 U. S. 375 (1927). It forbids Congress from
making any law "abridging the freedom of speech, or of the press." It guarantees Watkins'
right to join any organization and make any speech that does not have an intent to incite to
crime. Dennis v. United States, 341 U. S. 494 (1951). But Watkins was asked whether he
knew named individuals and whether they were Communists. He refused to answer on the
ground that his rights were being abridged. What he was actually seeking to do was to protect
his former associates, not himself, from embarrassment. He had already admitted his own
involvement. He sought to vindicate the rights, if any, of his associates. It is settled that one
cannot invoke the constitutional rights of another. Tileston v. Ullman, 318 U. S. 44, 318 U. S.
46 (1943).

As already indicated, even if Watkins' associates were on the stand, they could not decline to
disclose their Communist connections on First Amendment grounds. While there may be no
restraint by the Government of one's beliefs, the right of free belief has never been extended
to include the withholding of knowledge of past events or transactions. There is no general
privilege of silence. The First Amendment does not make speech or silence permissible to a
person in such measure as he

Page 354 U. S. 232

chooses. Watkins has here exercised his own choice as to when he talks, what questions he
answers, and when he remains silent. A witness is not given such a choice by the
Amendment. Remote and indirect disadvantages such as "public stigma, scorn and obloquy"
may be related to the First Amendment, but they are not enough to block investigation. The
Congress has recognized this since 1862, when it first adopted the contempt section, R.S. §
103, as amended, 2 U.S.C. § 193, declaring that no witness before a congressional committee
may refuse to testify

"upon the ground that his testimony to such fact or his production of such paper may tend to
disgrace him or otherwise render him infamous."

See also McGrain v. Daugherty, supra, at 273 U. S. 179-180; United States v. Josephson, 165
F.2d 82, 89 (1947), cert. denied, 333 U.S. 838. See also Report on Congressional
Investigations, Assn. of the Bar of the City of New York, 3-4 (1948).

We do not have in this case unauthorized, arbitrary, or unreasonable inquiries and disclosures
with respect to a witness' personal and private affairs so ably and properly denounced in
the Sinclair case, supra, at 279 U. S. 291-292. This inquiry is far different from the cases
relied upon by the Court. There is no analogy to the case of Richard Thompson, [Footnote
2/13] involving the sermons of clergymen. It is not Floyd's [Footnote 2/14] case, involving
criticism of the royal family. There is no resemblance to John Wilkes' struggle for a seat in
Parliament. It is not Briggs, [Footnote 2/15] where the prosecutor sought to develop the
national origin of policemen. It is not Kilbourn, [Footnote 2/16] involving a private real
estate pool.

Page 354 U. S. 233

36 | P a g e
Nor is it Quinn, [Footnote 2/17] Emspak, [Footnote 2/18] or Bart, [Footnote 2/19] involving
the Fifth Amendment. It is not Rumely, [Footnote 2/20] involving the interpretation of a
lobbying statute. Nor is this

"a new kind of congressional inquiry unknown in prior periods of American history . . . [i.e.,]
a broad scale intrusion into the lives and affairs of private citizens."

As I see it, only the setting is different. It involves new faces and new issues brought about by
new situations which the Congress feels it is necessary to control in the public interest. The
difficulties of getting information are identical, if not greater. Like authority to that always
used by the Congress is employed here, and in the same manner so far as congressional
procedures are concerned. We should afford to Congress the presumption that it takes every
precaution possible to avoid unnecessary damage to reputations. Some committees have
codes of procedure, and others use the executive hearing technique to this end. The record in
this case shows no conduct on the part of the Un-American Activities Committee that
justifies condemnation. That there may have been such occasions is not for us to consider
here. Nor should we permit its past transgressions, if any, to lead to the rigid restraint of all
congressional committees. To carry on its heavy responsibility, the compulsion of truth that
does not incriminate is not only necessary to the Congress, but is permitted within the limits
of the Constitution.

[Footnote 2/1]

United States v. Rumely, 345 U. S. 41 (1953); Sinclair v. United States, 279 U. S.

263 (1929); Reed v. County Commissioners, 277 U. S. 376 (1928); McGrain v.
Daugherty, 273 U. S. 135 (1927); Landis, Constitutional Limitations on the Congressional
Power of Investigation, 40 Harv.L.Rev. 153 (1926).

[Footnote 2/2]

Symposium on Congressional Investigations, 18 U. of Chi.L.Rev. 421, Finer, The British

System, 521, 532, 554, 561 (1951).

[Footnote 2/3]

The Committee originated in 1938 under H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec.
7568, and was patterned after a resolution of 1934 authorizing the investigation of Nazi
propaganda. H.Res.198, 73d Cong., 2d Sess., 78 Cong.Rec. 4934. The resolution read much
the same as the present authority of the Committee which is quoted below. By a succession of
House Resolutions (H.Res. 26, 76th Cong., 1st Sess., 84 Cong.Rec. 1098; H.Res. 321, 76th
Cong., 3d Sess., 86 Cong.Rec. 572; H.Res. 90, 77th Cong., 1st Sess., 87 Cong.Rec. 886;
H.Res. 420, 77th Cong., 2d Sess., 88 Cong.Rec. 2282; H.Res. 65, 78th Cong., 1st Sess., 89
Cong.Rec. 795), the Committee continued in existence until in 1945, by amendment of the
House Rules, it was made a standing committee. 91 Cong.Rec. 10, 15. The Legislative
Reorganization Act of 1946 retained it as one of the standing committees and provided:

"All proposed legislation, messages, petitions, memorials, and other matters relating to the
subjects listed under the standing committees named below shall be referred to such
committees, respectively: . . ."

37 | P a g e
"(q) . . . (2) The Committee on Un-American Activities, as a whole or by subcommittee, is
authorized to make from time to time investigations of (i) the extent, character, and objects of
un-American propaganda activities in the United States, (ii) the diffusion within the United
States of subversive and un-American propaganda that is instigated from foreign countries or
of a domestic origin and attacks the principle of the form of government as guaranteed by our
Constitution, and (iii) all other questions in relation thereto that would aid Congress in any
necessary remedial legislation."

60 Stat. 823, 828.

The Committee is authorized to sit and act at any time, anywhere in the United States and to
require the attendance of witnesses and the production of books and papers. A resolution of
the Eighty-third Congress adopted the Rules of the previous Congresses as amended by the
Legislative Reorganization Act of 1946. H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 16,
18, 24.

[Footnote 2/4]

60 Stat. 815, 824.

[Footnote 2/5]

60 Stat. 817, 826.

[Footnote 2/6]

60 Stat. 815, 824.

[Footnote 2/7]

S.Res. 202, 81st Cong., 2d Sess., in pertinent part provides:

". . . authorized and directed to make a full and complete study and investigation of whether
organized crime utilizes the facilities of interstate commerce or otherwise operates in
interstate commerce in furtherance of any transactions which are in violation of the law of the
United States or of the State in which the transactions occur, and, if so, the manner and extent
to which, and the identity of the persons, firms, or corporations by which such utilization is
being made, what facilities are being used, and whether or not organized crime utilizes such
interstate facilities or otherwise operates in interstate commerce for the development of
corrupting influences in violation of law of the United States or of the laws of any
State: Provided however, That nothing contained herein shall authorize (1) the
recommendation of any change in the laws of the several States relative to gambling, or (2)
any possible interference with the rights of the several States to prohibit, legalize, or in any
way regulate gambling within their borders."

[Footnote 2/8]

H.Res. 298, 81st Cong., 1st Sess., in pertinent part provides:

38 | P a g e
". . . authorized and directed to conduct a study and investigation of (1) all lobbying activities
intended to influence, encourage, promote, or retard legislation, and (2) all activities of
agencies of the Federal Government intended to influence, encourage, promote, or retard
legislation."

[Footnote 2/9]

H.Res. 596, 82d Cong., 2d Sess., in pertinent part provides:

". . . authorized and directed to conduct a full and complete investigation and study (1) to
determine the extent to which current literature -- books, magazines, and comic books --
containing immoral, obscene, or otherwise offense matter, or placing improper emphasis on
crime, violence, and corruption, are being made available to the people of the United States
through the United States mails and otherwise, and (2) to determine the adequacy of existing
law to prevent the publication and distribution of books containing immoral, offensive, and
other undesirable matter."

[Footnote 2/10]

S.Res. 74, 85th Cong., 1st Sess., in pertinent part provides:

". . . authorized and directed to conduct an investigation and study of the extent to which
criminal or other improper practices or activities are, or have been, engaged in in the field of
labor-management relations or in groups or organizations of employees or employers to the
detriment of the interests of the public, employers or employees, and to determine whether
any changes are required in the laws of the United States in order to protect such interests
against the occurrence of such practices or activities."

[Footnote 2/11]

See note 3, supra.

[Footnote 2/12]

See supra, p. 354 U. S. 226. See also the statement by Congressman Velde, Chairman of the
Committee on Un-American Activities, April 9, 1954, at Washington, D.C., where Mr. Velde
stated, inter alia:

"This committee is set up by the House of Representatives to investigate subversion and

subversive propaganda and to report to the House of Representatives for the purpose of
remedial legislation."

"The House of Representatives has, by a very clear majority, a very large majority, directed
us to engage in that type of work, and so we do, as a committee of the House of
Representatives, have the authority, the jurisdiction, to ask you concerning your activities in
the Communist Party, concerning your knowledge of any other persons who are members of
the Communist Party or who have been members of the Communist Party, and so, Mr.
Watkins, you are directed to answer the question propounded to you by counsel."

[Footnote 2/13]

39 | P a g e
Proceedings against Richard Thompson, 8 How.St.Tr. 2 (1680).

[Footnote 2/14]

See 1 De Lolme, The Rise and Progress of the English Constitution (1838), at 347-348.

[Footnote 2/15]

Briggs v. Mackellar, 2 Abb.Pr. 30, 65 (N.Y. Common Pleas 1855)

[Footnote 2/16]

Kilbourn v. Thompson, 103 U. S. 168 (1881).

[Footnote 2/17]

Quinn v. United States, 349 U. S. 155 (1955).

[Footnote 2/18]

Emspak v. United States, 349 U. S. 190 (1955).

[Footnote 2/19]

Bart v. United States, 349 U. S. 219 (1955).

[Footnote 2/20]

United States v. Rumely, 345 U. S. 41 (1953).

40 | P a g e
 DIGEST

Facts of the case

In 1954, John Watkins, a labor organizer, was called upon to testify in hearings conducted by
the House Committee on Un-American Activities. Watkins agreed to describe his alleged
connections with the Communist Party and to identify current members of the Party. Watkins
refused to give information concerning individuals who had left the Communist Party.
Watkins argued that such questions were beyond the authority of the Committee.

Question

Did the activities of the Un-American Activities Committee constitute an unconstitutional

exercise of congressional power?

Conclusion

In a 6-to-1 decision, the Court held that the activities of the House Committee were beyond
the scope of congressional power. The Court held that both the authorizing resolution of the
Committee and the specific statements made by the Committee to Watkins failed to limit the
Committee's power. The Court found that because Watkins had not been given sufficient
information describing the pertinency of the questions to the subjects under inquiry, he had
not been accorded a fair opportunity to determine whether he was within his rights in refusing
to answer. The Due Process Clause of the Fifth Amendment thus invalidated Watkins'
conviction.

41 | P a g e
 140 F. Supp. 383 (1956)

UNITED STATES
v.
Aldo Lorenzo ICARDI.
Crim. No. 821-55.

United States District Court District of Columbia.

April 19, 1956.

*384 Oliver Gasch, U. S. Atty. for the District of Columbia, Victor C. Woerheide, Kevin
Maroney, Marvin Segal, Attys., Dept. of Justice, Washington, D. C., for U. S.

Edward Bennett Williams, Murdaugh Stuart Madden, Agnes A. Neill, Washington, D. C., for
defendant.

KEECH, District Judge.

This court now has for determination whether the Government has proved that the questions
which the indictment charges the defendant Icardi answered falsely were asked by "a
competent tribunal" and whether his answers related to a "material matter." These two facts
are essential elements of the offense with which the defendant is here charged. Hence,
although matters of law for determination by the court, they must be proved by the
Government like any other essential element of the crime; and the court must grant
defendant's motion to dismiss unless it finds the Government has proved them beyond a
reasonable doubt.

At the outset, the court is faced with two basic principles of law: the presumption of the
validity of governmental proceedings, and the presumption that the accused is innocent. Since
the second presumption outweighs the first, the presumption of validity must be supported by
proof of the validity of the legislative proceedings and materiality of the specific answers
which defendant is alleged to have falsely given. Sinclair v. United States, 279 U.S. 263, 296,
49 S. Ct. 268, 73 L. Ed. 692.

Considering in turn the questions of competency of the tribunal and materiality of the
questions asked and answers *385 thereto, what is the government's proof on each issue?

Under H.Res. 5, 83rd Congress, Rule XI, Sec. 3, the Committee on Armed Services was
given jurisdiction of "(a) The common defense generally," and "(b) The Department of
Defense generally, including the Departments of the Army, Navy, and Air Force generally,"
as well as other matters not here pertinent. Under this broad authority, as supplemented by
H.Res. 125, 83rd Congress, the Committee on Armed Services or a subcommittee thereof
could legitimately investigate whether existing law adequately covered crimes against
persons or property committed overseas by members of our armed forces, and whether the
Defense Department was being efficiently administered, and to that end to compel testimony
under oath.

42 | P a g e
The fact that legislation touching on the general subject had already been enacted would not
estop further investigation as to its adequacy or investigation as to the efficiency of the
administration of the military establishment.

Any conclusion which the committee or a subcommittee might reach on these questions
would necessarily be founded upon an investigation of the facts of specific cases. The
Chairman of the Armed Services Committee therefore had authority to appoint a special
subcommittee to investigate a particular alleged offense, a segment of the whole picture, as
an initial step toward reaching a valid legislative judgment.

The special subcommittee described in the indictment was appointed during the 83rd
Congress by the Chairman of the Armed Services Committee by letter of March 11, 1953,
addressed to Congressmen Cole and Kilday (Govt. Exhibit 9), the pertinent portions of which
read:

"* * * I constitute you a Subcommittee to investigate the circumstances surrounding the

disappearance and death of Maj. William V. Hollahan (sic), while a member of the Armed
Forces on assignment to the Office of Strategic Services in the Italian Campaign of 1944 * *
*. You are authorized to take such further action in the matter as, in your opinion, the facts
and legislative interest may require; and, if you shall be so advised, to render such report on
your further investigation and studies as will, in your opinion, be useful and informative to
the Congress."

This subcommittee, as shown by the letter and testimony before the court, was appointed to
continue the work of an 82nd Congress subcommittee appointed for the same purpose, of
which Congressmen Cole and Kilday had been members. The predecessor committee had
conducted hearings on December 19, 1951, and January 9 and 10, 1952, at which, according
to the transcript of proceedings, the oral testimony received was that of Michael Stern, an
employee of Fawcett Publications and foreign correspondent of True magazine, and Henry L.
Manfredi, a Treasury Department employee formerly connected with the Army as a Chief
Agent of the Criminal Investigation Division. The subcommittee had also received statements
of certain persons in Italy and of another member of Major Holohan's OSS team, Carl
LoDolce, which fixed responsibility for Major Holohan's death on Icardi and upon which the
hearsay testimony of Stern and Manfredi was apparently based in large part. As to the three
alleged eye-witnesses to what occurred at the Villa Castelnuovo on the night of December 6,
1944, each of them could have had good reason to cast responsibility for a brutal murder on
some one other than himself, and the Italian affidavits were all obtained in a political climate
such as the United States has never known. The committee also had other information from
the files of the OSS and CID, including Icardi's own statements during the investigation by
military authorities of Major Holohan's disappearance, as well as Icardi's statements before
the Pennsylvania Board of *386 Law Examiners, on the radio, and before other organizations
with respect to the charges against him.

No further hearings were held by the subcommittee between January 10, 1952, and March 26,
1953. Congressman Cole testified before this court that the delay was because the committee
was awaiting the outcome of other proceedings, namely, proceedings looking toward
prosecution in Italy of Icardi and LoDolce.

43 | P a g e
On March 19, 1953, the subcommittee addressed a letter to Icardi reading in part:

"The subcommittee desires to have from you any evidence competent, relevant, or material
relating to this subject [the circumstances surrounding the death, on or about December 6,
1944, of Maj. William V. Holohan, AUS] which you may have and may desire to offer. Your
evidence * * * will be received by the subcommittee on Thursday, March 26, 1953, at 2
o'clock in the afternoon, in the Armed Services Committee room, No. 313, Old House Office
Building, Washington, D. C.

"If you do not appear, the subcommittee must assume that it is in possession of all evidence
required to form its opinion and report, for the information of the Congress."

On March 26, 1953, Icardi appeared pursuant to the letter. Before Icardi was questioned, the
chairman of the subcommittee warned him that anything he said might be used against him in
a "future proceeding or tribunal." The subcommittee counsel informed Icardi that the
subcommittee was in possession of transcripts of his prior statements in connection with the
matter.

Despite the warning, Icardi freely answered the questions put to him, substantially reiterating
his former statements concerning the disappearance of Major Holohan. Icardi was the only
witness questioned at this hearing.

Thereafter, on May 19, 1953, the subcommittee heard the final witness, Col. Ralph W.
Pierce, former Chief, Criminal Branch, Provost Marshal's Office, who had conducted a
polygraph or "lie-detector" test of Icardi in 1947. His testimony concerned the conducting of
the test, which was for the purpose of ascertaining whether Icardi had any knowledge of
Major Holohan's disappearance, and as the result of which Colonel Pierce, according to his
recollection, had concluded that Icardi did not kill Holohan and probably did not know who
did, although he could not give a conclusive opinion on the basis of the tests made.

Under date of July 16, 1953, the special subcommittee rendered its report, which was
approved and adopted by the full Committee on Armed Services July 24, 1953. (Government
Exhibit 10.)

As counsel for the government has very properly pointed out to the court, the legislative
purpose of the subcommittee's investigation must be gleaned from the evidence before the
court, namely, the documents introduced in evidence, the resolutions relating to its
appointment and powers, the transcript of the hearings held by it, the subcommittee's letter to
Icardi, the report of the subcommittee, and the testimony at this trial of the Chairman of the
Armed Services Committee and the chairman of the special subcommittee.

Buttressed by the presumption of validity, the evidence warrants a finding that the special
subcommittee was validly constituted by the Chairman of the Armed Services Committee,
and that the subject matter confided to the subcommittee for investigation was relevant to a
twofold valid legislative purpose, namely, inquiry as to (1) whether existing laws were

44 | P a g e
adequate to provide for prosecution of crimes committed by former service personnel while
serving overseas, and (2) whether the Department of Defense was functioning efficiently. The
interpretation which the subcommittee placed upon its authority and the purpose for which
the hearings were actually conducted, particularly the *387 hearing at which the defendant
Icardi testified, present a different and more difficult question.

The transcript of testimony indicates that, at the outset, the inquiry was directed primarily to
the issue of the guilt or innocence of Icardi and the other members or aides of the OSS team
of the murder of Major Holohan and the robbery of his body, Icardi's alleged embezzlement
of government funds, and incidentally the investigation which had been made thereof. As
heretofore stated, the only witnesses who testified before the subcommittee were Stern,
Manfredi, Icardi, and Colonel Pierce. The affidavits of LoDolce and the persons in Italy
complete the transcript of the hearings before the subcommittee. The only real testimony with
respect to the conduct of the military investigation into Major Holohan's disappearance came
from Manfredi, no longer connected with the Defense Department, and from Colonel Pierce.
It is significant to the court, on the issue of the legislative purpose of the subcommittee's
investigation, that no other witnesses were interrogated as to the Defense Department's
conduct of its investigation before or after the discovery of the Major's body or the steps the
Department had taken to press charges after its investigation.

Turning to the report of the special subcommittee, it states in terms:

"The inquiry by the special subcommittee was concerned, primarily with whether or not a
crime had been committed; whether prosecution was possible; in what jurisdiction it would
lie whether military, civilian, or Italian authority; and whether the Federal statutes were
inadequate in any respect or had been improperly administered by the Army."

There follows a Statement of Facts, approximately four pages of which state as facts the
details of Icardi's animosity for Major Holohan, Icardi's threats against the Major, the murder
of Major Holohan by Icardi and LoDolce, and their concealment of the crime, as well as
Icardi's embezzlement of government funds, all as related in the hearsay evidence before the
subcommittee. The remainder of this statement of facts, which deals with investigations of
the disappearance, proceedings against Icardi and LoDolce, and publicity in the press, and
summarizes the testimony before the committee, both oral and documentary, is in the nature
of a valid committee report on a subject within its jurisdiction, although statements in this
portion are tainted by the subcommittee's own prior adjudication of Icardi's guilt. For
example, the report (p. 11) states "at the time of this hearing [before the Allegheny County
Board of Law Examiners], Icardi related the false version concerning Holohan's
disappearance," and again (p. 12), referring to Icardi's testimony before the subcommittee,
"His story in part was identical to the one given by witnesses in Italy and the United States
except for the true facts concerning Holohan's murder and disappearance."

There follows a Review of the Evidence, which refers to Icardi as "the accused" and reiterates
"the emphasis in this case has always been upon the most dramatic aspect, the murder,
jurisdiction as to which has been lost to Army courts martial by the severance of accused
from the service." This section reviews the probabilities of convicting Icardi or Lo-Dolce on
any charge under existing law.

45 | P a g e
There is a question as to the propriety of the report's Conclusions, which state there is
"probable cause" for charging Icardi and LoDolce with murder and embezzlement, but that
they are not subject to prosecution under existing civil law or under the Uniform Code of
Military Justice. The use of this language indicates the functioning of the subcommittee as a
committing magistrate. As to the report's final Recommendations, which suggest that
legislative amendments to the Federal Criminal Code be recommended to the Judiciary
Committee, the court finds this portion of the subcommittee's report was an exercise *388 of
a bona fide legislative function. The validity of this latter recommendation, however, cannot
cure the invalidity of the subcommittee's adjudication of crime contained in the report's
Statement of Facts.

Although the subcommittee's report was made after Icardi's testimony, its contents are
relevant to show that body's conception and exercise of its authority and functions.

Chairman Cole testified that the subcommittee already had in its possession sufficient
information on which to base its report to the Congress, including Icardi's prior statements on
many occasions, and that the purpose of asking Icardi's appearance before the subcommittee
was to give him an opportunity to tell his side of the story. Chairman Cole further testified
that, to the best of his recollection, before asking Icardi to testify, he discussed with his
colleague and counsel for the subcommittee the calling of Icardi, putting him under oath, and
the possibility of a perjury indictment as the result of Icardi's testimony. It is unnecessary for
the court to determine for which purpose Icardi's testimony was sought or obtained, since
neither affording an individual a forum in which to protest his innocence nor extracting
testimony with a view to a perjury prosecution, is a valid legislative purpose.

This court does not hold that the mere fact that a committee has in its possession a prior
statement of an individual is a bar to the committee's compelling his testimony on the same
subject, even though it be merely cumulative, provided such testimony is obtained by the
committee for a legislative purpose within its jurisdiction. The court does hold that if the
committee is not pursuing a bona fide legislative purpose when it secures the testimony of
any witness, it is not acting as a "competent tribunal", even though that very testimony be
relevant to a matter which could be the subject of a valid legislative investigation.

While a committee or subcommittee of the Congress has the right to inquire whether there is
a likelihood that a crime has been committed touching upon a field within its general
jurisdiction and also to ascertain whether an executive department charged with the
prosecution of such crime has acted properly, this authority cannot be extended to sanction a
legislative trial and conviction of the individual toward whom the evidence points the finger
of suspicion.

On the basis of all the evidence before it, the court therefore finds, as a matter of law, that at
the time the subcommittee questioned the defendant Icardi it was not functioning as a
competent tribunal.

Assuming, however, that the subcommittee was functioning as a competent tribunal when
Icardi gave the testimony upon which the indictment is based, the court holds, as a matter of
law, that the false answers defendant is charged with having given did not relate to a
"material matter."

46 | P a g e
As stated in Fraser v. United States, 6 Cir., 145 F.2d 145, 149, certiorari denied 324 U.S. 842,
65 S. Ct. 586, 89 L. Ed. 1403, the test of materiality is whether the false testimony was
capable of influencing the tribunal on the issue before it.

When a committee of Congress is engaged in a legitimate legislative inquiry and the

questions propounded are relevant and material to that inquiry, the courts will not question
the motives of the questioners. Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273,
278, 279. And the fact that a crime may be disclosed by the answer does not make a question
immaterial. McGrain v. Daugherty, 273 U.S. 135, 136, 47 S. Ct. 319, 71 L. Ed. 580. There
are, however, limitations upon the investigative power of the legislature which must be
considered in any determination of materiality. The investigation must be to aid in legislation.
McGrain v. Daugherty, supra, 273 U.S. at *389 page 178, 47 S. Ct. 319. "Similarly, the
power to investigate must not be confused with any of the powers of law enforcement; those
powers are assigned under our Constitution to the Executive and the Judiciary." Quinn v.
United States, 349 U.S. 155, 161, 75 S. Ct. 668, 672, 99 L. Ed. 964.

It is relevant to this issue also that when Icardi was questioned the hearings had been
reconvened after a lapse of fourteen months; that before Icardi was summoned the
subcommittee had all the information necessary on which to base its report, including Icardi's
version of the incident; and that although it has been testified that Icardi was invited to appear
in order to give him a forum in which to tell his side of the story of Major Holohan's
disappearance, before that invitation was sent the chairman had discussed with his colleague
and the subcommittee counsel the possibility of indicting Icardi for perjury, if under oath he
should adhere to his former statements. When Icardi received the subcommittee's letter
"inviting" him to testify before it, he was asked to appear on peril of the subcommittee's
finding him guilty of murder, robbery, and embezzlement, if he should fail to comply.

The subcommittee must have known that if Icardi appeared before it his testimony could fall
within one of three categories: (1) he could confess guilt; (2) he could stand on his
constitutional privilege against self-incrimination, which would have the same effect upon the
subcommittee's conclusions as if he had confessed guilt; and (3) he could repeat his denial of
guilt, as given in all the previous statements in the possession of the subcommittee.

The facts sought to be elicited by the questions which are the subject of this indictment all
dealt with the issue of Icardi's guilt of the crimes with which he had been charged. The court
has not overlooked the Government's argument that the matters sought to be elicited by these
six questions were material because, if Icardi had impressed the subcommittee with his
credibility and had produced substantial corroborative evidence, the subcommittee might
have concluded that he was innocent. In the face of the evidence that, as of the time he was
questioned, Icardi's answers could have no effect upon the subcommittee's conclusions in the
field of legitimate congressional investigation, this slim conjecture cannot support a finding
by this court, as a matter of law, that Icardi's answers related to a material matter. Whether
Icardi denied or confessed guilt by his answers, his testimony could not have influenced the
subcommittee's conclusion on subjects which might be legitimately under investigation,
namely, whether existing law adequately covered the prosecution of crimes committed under
the circumstances of the specific charge under investigation, and whether the Defense
Department had functioned adequately in its investigation of the Holohan disappearance.

47 | P a g e
Therefore, under the test set forth in the Fraser case, the court holds as a matter of law that
the alleged false answers by Icardi were not material to the subcommittee's authorized
investigation.

Counsel for the government has suggested that frequently individuals are adjudged guilty of
an offense by a congressional committee in the exercise of its functions. This court doubts the
accuracy of such statement; but, if it be true, such practice should not be condoned, as it
denies to the accused the constitutional safeguards of judicial trial.

For the foregoing reasons the defendant's motion to dismiss which I believe under the new
rules I must treat as a motion for judgment of acquittal must be granted.

I shall ask the Marshal to call in the jury and I shall direct a verdict of acquittal for the
defendant.

48 | P a g e
 15 F. Supp. 736 (1936)

UNITED STATES
v.
OWLETT et al.
No. 1238.

District Court, M. D. Pennsylvania.

July 7, 1936.

*737 John Dickinson, Asst. Atty. Gen., Frederick V. Follmer, U. S. Atty., of Scranton, Pa.,
and John S. L. Yost and Hugh B. Cox, Sp. Assts. to the Atty. Gen., for the United States.

George Wharton Pepper, William A. Schnader, James Alan Montgomery, Jr., and Bernard G.
Segal, all of Philadelphia, Pa., for respondents.

JOHNSON, District Judge.

This is a bill in equity instituted by the United States of America to enjoin the respondents, an
investigating committee created by resolution of the Senate of the commonwealth of
Pennsylvania, from conducting any investigation into the organization, administration, and
functioning of the Works Progress Administration in Pennsylvania.

The bill of complaint avers that the United States of America is a sovereign government
having jurisdiction and authority over all matters relating to the Works Progress
Administration, a federal agency; that the proposed and threatened actions of the respondents
in attempting to make an investigation of the organization, administration, and functioning of
the Works Progress Administration in Pennsylvania are contrary to and in obstruction of the
proper governmental functions of that agency and of the laws of the United States of
America; and that unless respondents are restrained the United States of America will suffer
irreparable injury for which there is no adequate remedy at law. The bill prays that the
respondents be enjoined from conducting any investigation into the organization,
administration, and functioning of the Works Progress Administration in Pennsylvania as
proposed by the resolution of the Senate of the commonwealth of Pennsylvania; that
respondents be restrained forthwith and without notice; *738 that writs of subpœna issue to
respondents, commanding them to appear and answer; and that thereupon a preliminary
injunction issue, pendente lite.

Upon motion the court forthwith granted an order restraining the respondents from carrying
on any investigation of the Works Progress Administration and requiring them to appear on
June 17, 1936, and show cause why the preliminary injunction should not issue according to
the prayer of the bill.

The respondents appeared on June 17, 1936, and filed their answer, admitting certain
allegations of the bill and denying others. Certain exhibits and affidavits were introduced on
behalf of the United States of America, without objection. Reply affidavits were offered on
behalf of the respondents, and upon objection the court reserved ruling on their admission.
Thereupon oral arguments were heard and written briefs filed.

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Upon due consideration of the bill, answer, exhibits, and affidavits, after hearing oral
arguments of counsel, and examination of the written briefs, the court arrives at the
following:

I. Findings of Fact.

1. That pursuant to the authority vested in the President of the United States of America
under the "Emergency Relief Appropriation Act of 1935," approved April 8, 1935, Public
Resolution No. 11, 74th Congress (15 U.S.C.A. § 728 note), the President of the United
States of America on May 6, 1935, established the Works Progress Administration by
Executive Order No. 7034.

2. That administrative units of the Works Progress Administration were created in each of the
states, including Pennsylvania.

3. That Edward N. Jones was duly appointed and has been acting as Administrator of the
Pennsylvania unit of the Works Progress Administration.

4. That moneys of the United States of America, formally appropriated, have been allocated
to the various units of the Works Progress Administration, including the Pennsylvania unit.

5. That Edward N. Jones has been authorized to disburse such funds in carrying out the
provisions of the Emergency Relief Appropriation Act of 1935, and that he has set up various
agencies through which the funds allocated to the Pennsylvania unit are being disbursed.

6. That accountings for said funds are made to certain agencies of the United States of
America.

7. That the Works Progress Administration unit in Pennsylvania is a governmental unit of the
United States of America.

8. That the United States of America is a sovereign government and has jurisdiction and
authority over all matters relating to the Works Progress Administration.

9. That the Senate of the commonwealth of Pennsylvania at an Extraordinary Session of

1936, passed Resolution No. 1 as follows:

"Whereas The Democratic Administration at Washington in establishing the Works Progress

Administration promised the State of Pennsylvania along with the other states that all
employables on the relief rolls at the time of the creation of said Administration would be
given work relief and

"Whereas the Works Progress Administration has been in operation in Pennsylvania for a
considerable period of time and

"Whereas There are still on the direct relief rolls in Pennsylvania upwards of one hundred and
seventy thousand cases a very large percentage of whom are employables and

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"Whereas the report of certain members of the Joint Legislative Committee Investigating
Public Relief has disclosed that the Works Progress Administration in Pennsylvania is
functioning as an arm of the Guffey-Earle-Lawrence Democratic State Administration and
being used for the purpose of building up a political machine rather than for the alleviation of
unemployment and

"Whereas The Governor of this Commonwealth has demanded that the Legislature impose an
additional burden of seventy million dollars on our people to provide relief largely for the
employables for the next nine months and

"Whereas It is believed that an investigation of the Works Progress Administration as it is

now functioning in Pennsylvania will disclose that the proper and economic administration
thereof would provide for the most if not all of those now on the direct relief rolls thru
relieving the taxpayers of Pennsylvania from this additional *739 burden which the Governor
proposes to impose upon them now therefore be it

"Resolved that the President Pro Tempore of the Senate is hereby authorized to appoint a
committee of five members of the Senate whose duty it shall forthwith be to make a
searching and impartial investigation of the organization administration and functioning of
the Works Progress Administration in Pennsylvania to ascertain (a) whether the same if
administered in a proper and economical manner would relieve this Commonwealth from
further taxation for unemployment relief or materially lessen the same (b) in what respect if
any the present administration is abusing the powers prerogatives and privileges imposed in it
and (c) to investigate such other facts and circumstances as may be deemed necessary in
order to enable the General Assembly to measure the extent of any revenue it should raise to
provide for those employables which could not be provided for through a proper
administration of the Works Progress Administration

"Resolved That the said committee shall have power to issue subpœnas under the hand and
seal of its chairman requesting and commanding any person or persons to appear before them
and to answer any such questions touching matters properly being inquired into by the
committee and to produce such books papers records and documents as the committee may
deem necessary. Such subpœnas may be served upon any person and shall have the force and
effect of subpœnas issued out of the courts of this Commonwealth. Each member of said
committee shall have the power to administer oaths and affirmations to witnesses appearing
before the committee. Any person who shall wilfully neglect or refuse to testify before said
committee or to produce any papers books records or documents shall be subject to the
penalties provided by the laws of the Commonwealth in such cases

"Resolved That said committee shall make a report to the Senate now in session as early as
possible."

10. That in accordance with the above Resolution the President pro tempore of the Senate of
the commonwealth of Pennsylvania appointed G. Mason Owlett, John R. K. Scott, George L.
Reed, and Charles Staudenmeier, respondents herein, as a committee to investigate the
organization, administration, and functioning of the Works Progress Administration in
Pennsylvania.

11. That the committee met and appointed G. Mason Owlett chairman thereof.

51 | P a g e
12. That until the issuance of the restraining order by this court on June 3, 1936, the
committee had been functioning, had issued certain subpœnas, and was intending to issue
further subpœnas in accordance with the purposes of the Senate Resolution requiring persons
to give testimony affecting the administration of the Pennsylvania Works Progress
Administration unit to ascertain the facts specified by the Senate Resolution.

13. That on the 27th day of May, 1936, the committee under the hand and seal of its chairman
subpœnaed John H. Rankin, director of districts 4 and 5, of Works Progress Administration in
Pennsylvania; E. Kaye Hunter, assistant director of districts 4 and 5 of Works Progress
Administration in Pennsylvania; Edward R. Yarnelle, supervisor of employment in districts 4
and 5, of Works Progress Administration in Pennsylvania; and Henry T. Siebert, personnel
officer for districts 4 and 5, of Works Progress Administration in Pennsylvania, to appear
"before the Senate committee investigating the W. P. A. in Pennsylvania" on May 29, 1936,
at Philadelphia to testify in the investigation by the committee under Senate Resolution No. 1,
and to bring with them "all W. P. A. payrolls in Districts 4 and 5 from January 1, 1935 to
date, including all employes taken from S. E. R. B. rolls, together with all addresses and all
applications signed by above employes and card or record of their previous work
qualifications, and all letters or writings or memoranda of endorsement for employment of
aforesaid employes."

14. That the said employees are on the pay roll of the United States of America; that their
salaries are paid by check on the Treasury of the United States of America, issued by a
disbursing office of the United States of America; and that they are not subject to the control
of any official other than their superior officers in the Federal Works Progress
Administration.

15. That Harry L. Hopkins, Administrator of Works Progress Administration, advised John
H. Rankin, director of districts 4 and 5 in Pennsylvania, of Works Progress Administration,
by telegram on May 29, 1936, that the policy of the Works *740 Progress Administration
forbids any of its employees to disclose information acquired in the course of their
employment to non-employees, and that these instructions specifically cover the documents
requested by the subpœnas served upon him and Messrs. Edward R. Yarnelle, E. K. Hunter,
and Henry T. Siebert, by the committee of the commonwealth of Pennsylvania investigating
the Works Progress Administration.

16. That on June 2, 1936, Harry L. Hopkins, Administrator of the Works Progress
Administration, issued general letter No. 36 advising all state works progress administrators
that no officer or employee of the Works Progress Administration shall furnish any
information or make available any official document or copy thereof to any person, except
persons having official business with the Works Progress Administration.

17. That in answer to the subpœnas of the committee, the employees refused to appear before
the Senate investigating committee and by letters addressed to the committee, assigned as
reasons therefor that the instructions of the Works Progress Administration forbid the
submission of any records of the Works Progress Administration to any one not employees
thereof; that it would not be in the public interest to absent themselves from their official
duties; that upon advice of counsel, the committee is without jurisdiction to compel them as
federal employees to appear before the committee in response to the subpœnas.

52 | P a g e
18. That these letters were transmitted to the committee by Charles D. McAvoy, United
States Attorney for the Eastern District of Pennsylvania, who informed the committee by
letter that the Works Progress Administration is prepared to cooperate with the States and to
supply legislative bodies thereof with such information as may be necessary to assist them
properly to design measures to meet their relief requirements.

19. That unless restrained respondents will perform the duties imposed upon them by the
Senate Resolution No. 1.

20. That exhibits and affidavits were introduced on behalf of the United States of America,
without objections, and were received by the court, and that reply affidavits were offered on
behalf of the respondents, and objection to their admission was made on the ground that the
affidavits were irrelevant.

From the foregoing facts, the court arrives at the following:

II. Conclusions of Law.

1. That the Works Progress Administration unit in Pennsylvania is a governmental unit of the
United States of America, and all matters relating to the Works Progress Administration are
under the jurisdiction and authority of the United States of America.

2. That the actions of the respondents in attempting to make an investigation into the
organization, administration, and functioning of the Works Progress Administration in
Pennsylvania, pursuant to Resolution No. 1 of the Senate of the commonwealth of
Pennsylvania, are contrary to and in obstruction of the proper governmental functions of the
United States of America.

3. That the respondents have no jurisdiction to investigate the organization, administration,

and functioning of the Works Progress Administration in Pennsylvania, pursuant to
Resolution No. 1 of the Senate of the commonwealth of Pennsylvania.

4. That the United States of America has no adequate remedy at law against said actions of
the respondents, and will suffer irreparable damage unless the respondents are restrained
from investigating the organization, administration, and functioning of the Works Progress
Administration in Pennsylvania pursuant to Resolution No. 1 of the Senate of the
commonwealth of Pennsylvania.

5. That the bill in equity for an injunction is the proper remedy here.

6. That a preliminary injunction should issue restraining the respondents, the committee
appointed pursuant to Resolution No. 1 of the Senate of the commonwealth of Pennsylvania,
from conducting any investigation into the organization, administration, and functioning of
the Works Progress Administration in Pennsylvania as proposed by the said Resolution No. 1
of the Senate of the commonwealth of Pennsylvania.

53 | P a g e
7. That the objection to the admission of the respondents' reply affidavits should be and is
sustained.

*741 III. Discussions.

The Works Progress Administration unit in Pennsylvania is a governmental unit of the United
States of America. The Works Progress Administration was created by Executive Order No.
7034 of the President of the United States of America pursuant to the Emergency Relief
Appropriation Act of 1935, being Public Resolution No. 11 of the 74th Congress of the
United States of America. It functions with funds from the federal treasury; its disbursements
are made by federal officers; its employees are federal employees under federal supervision,
paid from the federal treasury; accountings are made to the federal government; its projects
are under federal control and supervision. The Works Progress Administration is a federal
agency, and the United States of America is a sovereign government, having jurisdiction over
the matters relating to the Works Progress Administration. This principle is asserted in the
bill of complaint and admitted by the respondents in their answer.

The investigation by the respondents is an interference with the proper governmental function
of the United States of America. The complete immunity of a federal agency from state
interference is well established. Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648; Van
Brocklin v. State of Tennessee, 117 U.S. 151, 6 S. Ct. 670, 29 L. Ed. 845; see, also, Dobbins
v. Erie County, 16 Pet. 435, 10 L. Ed. 1022; Buchanan v. Alexander, 4 How. 20, 11 L. Ed.
857; Tarble's Case, 13 Wall. 397, 20 L. Ed. 597; Flaherty v. Hanson, 215 U.S. 515, 30 S. Ct.
179, 54 L. Ed. 307. This principle of immunity from state control or interference applies to
official papers and records of the United States of America, Boske v. Comingore, 177 U.S.
459, 20 S. Ct. 701, 44 L. Ed. 846; Ex parte Sackett (C.C.A.) 74 F.(2d) 922; 25 Op. Atty. Gen.
326; and prevents a state from obstructing or interfering with employees of the United States
of America in the discharge of their official duties, whether or not there is any expressed
statutory provision for immunity. Osborn v. Bank of U. S., 9 Wheat. 738, 6 L. Ed. 204. This
principle of immunity is well stated by the Supreme Court of the United States in Tennessee
v. Davis, supra, wherein, at page 262 of 100 U.S., 25 L. Ed. 648, it is said:

"As was said in Martin v. Hunter (1 Wheat. [304] 363 [4 L.Ed. 97]), `the general government
must cease to exist whenever it loses the power of protecting itself in the exercise of its
constitutional powers.' It can act only through its officers and agents, and they must act
within the States. If, when thus acting, and within the scope of their authority, those officers
can be arrested and brought to trial in a State court, for an alleged offence against the law of
the State, yet warranted by the Federal authority they possess, and if the general government
is powerless to interfere at once for their protection, if their protection must be left to the
action of the State court, the operations of the general government may at any time be
arrested at the will of one of its members. The legislation of a State may be unfriendly. It may
affix penalties to acts done under the immediate direction of the national government, and in
obedience to its laws. It may deny the authority conferred by those laws. The State court may
administer not only the laws of the State, but equally Federal law, in such a manner as to
paralyze the operations of the government. And even if, after trial and final judgment in the
State court, the case can be brought into the United States court for review, the officer is

54 | P a g e
withdrawn from the discharge of his duty during the pendency of the prosecution, and the
exercise of acknowledged Federal power arrested.

"We do not think such an element of weakness is to be found in the Constitution. The United
States is a government with authority extending over the whole territory of the Union, acting
upon the States and upon the people of the States. While it is limited in the number of its
powers, so far as its sovereignty extends it is supreme. No State government can exclude it
from the exercise of any authority conferred upon it by the Constitution, obstruct its
authorized officers against its will, or withhold from it, for a moment, the cognizance of any
subject which that instrument has committed to it."

Since the Works Progress Administration is admittedly a federal agency, that agency, its
employees and records, must have the same immunity which is enjoyed by all other agencies
and instrumentalities of the United States of America, such as the post office, the Army or the
Navy. The fact that the conduct of the Works Progress Administration might have some
indirect effect upon the fiscal problems of the commonwealth of Pennsylvania
affords *742 no basis for interference, control, or investigation by a committee appointed by
authority of the Senate of the commonwealth of Pennsylvania. Every federal agency must, by
the very system of our dual form of government, function within the various states and
necessarily affect matters therein. The fact that the federal government, through the Works
Progress Administration, is co-operating with the commonwealth of Pennsylvania in
alleviating unemployment within the state, or the fact that its officers have promised or
assured officials of the commonwealth of Pennsylvania that the Works Progress
Administration would relieve that state of caring for a certain number of its employables on
its relief rolls, does not give to the commonwealth of Pennsylvania any supervision,
authority, control, or investigatory powers over the Works Progress Administration.

Nor does the fact that the commonwealth of Pennsylvania has the right given to it to propose
a project or furnish materials to secure a project to be carried out by the Works Progress
Administration, give to it any control over the Works Progress Administration. The
contribution by the state is purely voluntary to secure federal aid, and the project is
nevertheless carried out completely by the federal agency without interference from the state.

The attempt by the respondents, a committee appointed by the Senate of a sovereign state, to
investigate a purely federal agency is an invasion of the sovereign powers of the United
States of America. If the committee has the power to investigate under the resolution, it has
the power to do additional acts in furtherance of the investigation; to issue subpœnas to
compel the attendance of witnesses and the production of documents, and to punish by fine
and imprisonment for disobedience. When this power is asserted by a state sovereignty over
the federal sovereignty, it is in contravention of our dual form of government and in
derogation of the powers of the federal sovereignty. The state having the power to subpœna
may abuse that power by constantly and for long periods requiring federal employees and
necessary federal records to be before an investigating committee. This power could
embarrass, impede, and obstruct the administration of a federal agency. This asserted
authority on the part of a state sovereignty is far different from the right of individuals or
groups of individuals to conduct an investigation. They are not armed with the process of a
sovereign state with power to invade the sovereign rights of either a state or the United States
of America; their individual rights are protected by constitutional guarantees of freedom of
speech, of assembly, and of petition.

55 | P a g e
The respondents have no jurisdiction to investigate pursuant to Resolution No. 1. The
investigatory power of a legislative body is limited to obtain information on matters which
fall within its proper field of legislative action. Commonwealth v. Costello, 21 Pa.Dist.R.
232; Shelby v. Second National Bank of Uniontown, 19 Pa.Dist. & Co.Ct.R. 202; McGrain v.
Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L.R. 1. Resolution No. 1 of the
Senate of the commonwealth of Pennsylvania limits the investigating committee to make an
"investigation of the organization, administration and functioning of the Works Progress
Administration in Pennsylvania." Under the resolution the committee has no authority to
investigate anything else. The respondents, constituting the investigating committee, clearly
have no jurisdiction to make the investigation proposed by Senate Resolution No. 1, since the
subject-matter of the investigation, the Works Progress Administration, a federal agency, is a
matter over which the Senate has no legislative power, and the information sought cannot
enable it to legislate on the subject of the investigation; the organization, administration, and
functioning of the Works Progress Administration in Pennsylvania.

The United States of America has no adequate remedy at law and will suffer irreparable
damage unless the respondents are restrained by injunction.

The preservation of the sovereign powers of the United States of America is a matter of vital
public interest, and though the United States of America may suffer no pecuniary damage, it
is not powerless to protect its sovereign powers. The Supreme Court of the United States in
the case of In re Debs, 158 U.S. 564, 584, 15 S. Ct. 900, 906, 39 L. Ed. 1092, said: "Every
government, intrusted by the very terms of its being with powers and duties to be exercised
and discharged for the general welfare, has a right to apply to its own courts for any proper
assistance in the exercise of the one and the discharge of the other, *743 and it is no sufficient
answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The
obligations which it is under to promote the interest of all and to prevent the wrongdoing of
one, resulting in injury to the general welfare, is often of itself sufficient to give it a standing
in court." See, also, Hopkins Savings Association v. Cleary, 296 U.S. 315, 56 S. Ct. 235, 80
L. Ed. 251, 100 A.L.R. 1403. The assertion by respondents of the right to investigate a purely
federal agency and the attempt of respondents to pursue that asserted right is sufficient to
show to this court that the sovereignty of the United States of America is being invaded, and
that the United States of America will suffer irreparable damage unless respondents are
restrained.

No federal agency can properly function if its employees are being constantly called from
their duties; if its records are constantly kept from official use; if its employees are subjected
to illegal fine and imprisonment. There is no adequate remedy at law to protect against such
damage.

The suggestion that federal employees could refuse to obey the subpœnas, or seek relief by
habeas corpus from imprisonment for disobedience, is no relief. Although these remedies
might in a measure protect the individuals, they do not in any degree protect the United States
of America from an invasion of its sovereignty or from vexatious interruptions of its
functions. If the United States of America were left to such remedies, it would be subjected to
confusion and a multiplicity of suits. The respondents, unless restrained, are free to resort to
different courts of co-ordinate jurisdiction within the commonwealth of Pennsylvania in
attempts to punish federal employees for disobedience to subpœnas, or to compel attendance
of witnesses and the production of documents. A court of equity will not subject the United
States of America to a multiplicity of suits or compel federal officers and employees to incur

56 | P a g e
the risk of fine and imprisonment to protect the United States of America from an illegal
invasion of its sovereignty. In Cleveland v. Cleveland City Ry. Co., 194 U.S. 517, at page
531, 24 S. Ct. 756, 761, 48 L. Ed. 1102, the Supreme Court of the United States said:
"Respecting the contention that the case presented by the record was not within the
jurisdiction of a court of equity, it suffices to say that, in view of the controversies, confusion,
risks, and multiplicity of suits which would necessarily have been occasioned by the
resistance of the complainant to the enforcement of the ordinance, and in view of the public
interests and the vast number of people to be affected, the case was one within the
jurisdiction of a court of equity." The bill in equity for an injunction is the proper remedy to
secure the relief sought.

Under the law of this case as stated in the above opinion, the objection to the admission of
respondents' reply affidavits on the ground of irrelevancy is sustained.

A decree granting a preliminary injunction, restraining the respondents, the committee

appointed pursuant to Resolution No. 1 of the Senate of the commonwealth of Pennsylvania,
from conducting any investigation into the organization, administration, and functioning of
the Works Progress Administration, in Pennsylvania, pursuant to said Resolution No. 1 of the
Senate of the commonwealth of Pennsylvania, may be submitted and will be made as prayed
for in accordance with the above opinion.

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United States v. Orman, 207 F.2d 148 (3d Cir. 1953)

U.S. Court of Appeals for the Third Circuit - 207 F.2d 148 (3d Cir. 1953)

Argued February 2, 1953

Decided September 18, 1953

COPYRIGHT MATERIAL OMITTED William E. Leahy, Washington, D. C. (Edward I.

Feinberg, Atlantic City, N. J., William J. Hughes, Jr., Washington, D. C., on the brief), for
appellant.

Grover C. Richman, Jr., U. S. Atty., Newark, N. J. (Alexander Feinberg, Asst. U. S. Atty.,

Camden, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.

BIGGS, Chief Judge.

This is an appeal from a conviction for contempt of a Subcommittee of the United States
Senate's Special Committee to Investigate Organized Crime in Interstate Commerce.1
It is desirable in this case to make a detailed statement of the circumstances so that the reader
may not only perceive the operative facts but also may be aware of the background of the
case. On July 3, 1951, the Subcommittee caused a subpoena to be issued commanding the
defendant Orman to "produce all your records, papers, statements and documents concerning
business, employment and financial transactions and a copy of your income tax returns for
the years 1947, 1948, 1949 and 1950." Orman appeared before the Subcommittee on July 6,
1951, with the required copies of the tax returns; he produced no other records prior to 1951
for he had destroyed them after making his tax returns. At the hearing on July 6 it developed
that Orman was keeping a book containing notes of his business transactions for 1951. Mr.
Lane, of counsel for the Subcommittee, expressed his desire to see this book, and Senator
Hunt formally stated: "The acting chairman of the subcommittee directs the witness, Mr.
Orman, to produce his book containing the records of his business transactions for the year
1951."
On the following day, July 7, 1951, Orman brought the book before the Subcommittee. He
apparently handed the book to Mr. Lane, but retrieved it almost immediately to assist in
explaining the entries. Orman then refused to read from the book anything except the gross
amounts of his 1951 income. He said: "I do not want this to be made public. I think this is my
own personal business. This record is going to be made public and a lot of statements will be
made like in yesterday's paper. Some of them do not mean anything."
Counsel asked: "Will you let me have the book?"

58 | P a g e
Orman replied: "No. I do not think I will let you have the book unless I know my business is
not going to be made public. I think I am entitled to that courtesy."
Senator Hunt then directed Orman to read the entries, warning him that he might be in
contempt of the Subcommittee if he refused. Orman said that the entries did not "mean a
thing" and he declined to read the entries or to deliver the book to the Subcommittee.
On July 10, 1951, a second subpoena was issued commanding Orman to appear before the
Subcommittee on July 17, 1951, and specifically directing him to produce his 1951 book of
financial transactions. Orman again brought the book to the hearing, but when Mr. Moser,
Chief Counsel to the Committee, asked him "Will you please produce that book?", he replied
"No; I will not." Mr. Moser asked: "And why do you refuse to show it to the committee?"
Orman replied: "Because I do not want it to become public property, to be given to the
newspapers. That is my personal business." Counsel then inquired: "Is it giving it to the
newspapers to give it to us?" and Orman replied: "I think so." Counsel for the Subcommittee
then asked: "You do?" Orman replied: "Yes." The Committee's counsel then inquired: "You
refuse to produce it before this closed session of the committee on that ground?" Orman
stated: "Unless I have an assurance that it will not be given to the newspapers. I must be
assured of that first. First of all, this is not pertinent to this investigation, as far as I could
determine, but I was very nice and gracious enough to sit through two and a half hours of my
income taxes, which I think have nothing to do with this investigation, as far as crime and
what this investigation is headed under. I had nothing to do with that. I sat here and tried to
be very helpful. * * *"
The colloquy went on. Counsel asked: "Will you please let me see the book?" Orman replied:
"I will let you see the book." Counsel said: "Then please do so." Orman asked: "Is it not
going to be read into the record?" Counsel said: "I am not going to decide now whether it will
go into the record. If it is material, it will certainly go into the record." Orman then said: "I
refuse to give you the book." Counsel asked: "You refuse to give me the book on the sole
ground of your not wanting to go into the record?", and Orman replied: "I don't care about it
going into the record." Counsel then said: "I want an exact statement of the ground for
refusing to show us the book." Orman replied: "I don't want the contents of this book to be
published in the newspapers and made public property as there have been some other
statements made before about myself. I do not know by whom. I am in business in this town."
On the same day, July 17, 1951, the following colloquy also took place:
Counsel for the Subcommittee asked: "You borrowed $25,000 [in December, 1950]?" Orman
said: "That is right." Counsel asked: "From whom did you borrow that?", and Orman replied:
"From a friend of mine." Mr. Moser inquired: "What is his name?" Orman said: "I cannot tell
you." Counsel asked: "You do not know?" Orman said: "I won't tell you; no." The inquiry
was then made: "Why?" Orman simply stated: "I don't want to tell you." Counsel said: "You
refuse to answer? On what ground?", and Orman replied: "It is my personal affairs." Counsel
then said: "You just refuse to answer?" Orman replied: "That is right. It is my personal
affairs." Counsel then asked: "Under that you are running the risk of a charge of contempt if
you refuse to answer that, do you know?" Orman said: "I do, sir." Counsel finally asked:
"You still refuse to answer?" Orman replied: "I do, sir."
On September 18, 1951, the Special Committee to Investigate Organized Crime in Interstate
Commerce submitted a report to the Senate describing the above proceedings and included a
resolution that the United States Attorney for the District of New Jersey should be required to
proceed against Orman in the manner prescribed by law. This resolution was adopted and
became Senate Resolution 211, dated October 1, 1951.2

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Orman was then indicted on four counts for violation of Section 192, Title 2,
U.S.C.A.3 Count 1 charged that Orman on July 7, 1951, "* * * wilfully made default in that
he refused to turn over his 1951 book of accounts pertaining to his income, which records
were pertinent to the matter under inquiry by the * * * Committee." Count 2 made an
identical charge relating to Orman's refusal to let the Subcommittee have the book on July 17,
1951. Count 3 further charged that Orman on July 17, 1951, "* * * refused to answer the
following question pursuant to the Committee seeking to ascertain from whom the defendant
Herman Orman had borrowed certain sums of money, which question was pertinent to the
question under inquiry by the * * * Committee: `What is his name?'" Count 4 made an
identical charge relating to the Subcommittee's similar directive on the same date: "Mr.
Orman, the acting chairman directs you to answer the question asked you by the counsel."
At the trial the jury returned a verdict of guilty on each count of the indictment. The court
below sentenced Orman to twelve months imprisonment on Counts 1 and 3, the terms to run
concurrently, and to a suspended sentence and one year's probation on Counts 2 and 4, the
probationary periods to run concurrently but commencing at the expiration of the sentences
imposed on Counts 1 and 3.
On this appeal Orman contends broadly that under all the circumstances his refusal to
disclose the items in his 1951 book of accounts did not constitute a willful default within the
indictment and the statute. He also argues that it was not pertinent to the investigation
undertaken by the Senate Crime Committee either to demand his 1951 book of accounts or to
ask the name of the person from whom he had borrowed the $25,000. We will discuss these
contentions.
Orman challenges the pertinency of the book and of the name of the person who loaned him
$25,000. Specifically, Orman claims error in the trial court's view of the law set out in the
following portion of the charge to the jury:
"In that particular respect, ladies and gentlemen, there has been argument here as to whether
or not it was pertinent to the committee where the defendant actually got the $25,000. And
there has likewise been argument here as to whether or not it was pertinent to the committee
what was in the book. That is not the question, in my estimation. The question is, could it
have been pertinent to this Senate inquiring committee in July of 1951; could it have been
pertinent to such inquiry where Mr. Orman got the $25,000. If it could have been pertinent,
they were entitled to an answer. If it could have been pertinent to such inquiry at that time
what information would be disclosed in the book, then they were entitled to have the book at
that time. And you and I are not to pass now upon the information disclosed in either the
book or the information disclosed in the court room of where he got the money. It's a
question could it have been pertinent at the time the question was propounded by the Senate
in their inquiry."
Acting consistently with this view, the trial court had excluded all evidence of the actual
contents of the book and of the name of the man who loaned Orman $25,000. Orman
contends that this exclusion was erroneous. Orman also argues that since the question of
pertinency was one of law, it was error for the trial court to submit this question to the jury.
His view is that as a matter of law, taking into consideration the contents of the book and the
name of the lender, the requirement of pertinency was not met.
Pertinency under Section 192 has been much discussed in the cases. "Pertinent," as used to
describe a requisite for valid congressional inquiry, means "pertinent to a subject matter
properly under inquiry, not generally pertinent to the person under interrogation." Rumely v.
United States, 1952, 90 U.S.App.D.C. 382, 197 F.2d 166, 177, affirmed, 1953, 345 U.S. 41,

60 | P a g e
73 S. Ct. 543. Because of the scope and purpose of congressional investigations, pertinency
in this context is necessarily broader than relevancy in the law of evidence. "A legislative
inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the
constitutional powers of Congress. * * * A judicial inquiry relates to a case, and the evidence
to be admissible must be measured by the narrow limits of the pleadings. A legislative
inquiry anticipates all possible cases which may arise thereunder and the evidence admissible
must be responsive to the scope of the inquiry, which generally is very broad." Townsend v.
United States, 68 App.D.C. 223, 95 F.2d 352, 361, certiorari denied, 1938, 303 U.S. 664, 58
S. Ct. 830, 82 L. Ed. 1121.
As indicated in these definitions, two separate elements must appear before pertinency is
established: (1) that the material sought or answers requested related to a legislative purpose
which Congress could constitutionally entertain; Kilbourn v. Thompson, 1880, 103 U.S. 168,
26 L. Ed. 377; McGrain v. Daugherty, 1927, 273 U.S. 135, 173, 47 S. Ct. 319, 71 L. Ed. 580;
Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 1948, 334
U.S. 843, 68 S. Ct. 1511, 92 L. Ed. 1767, rehearing denied, 1950, 339 U.S. 971, 70 S. Ct.
1001, 94 L. Ed. 1379; and (2) that such material or answers fell within the grant of authority
actually made by Congress to the investigating committee; Bowers v. United States, D.C.
Cir., 202 F.2d 447; Rumely v. United States, supra. Although Section 192 does not use the
word "pertinent" in referring to the production of papers, both of the elements referred to are
required in establishing contempt for refusal to produce papers as well as for refusal to
answer questions. Marshall v. United States, 1949, 85 U.S. App.D.C. 184, 176 F.2d 473,
certiorari denied, 339 U.S. 933, 70 S. Ct. 663, 94 L. Ed. 1352, rehearing denied, 1950, 339
U.S. 959, 70 S. Ct. 976, 94 L. Ed. 1369. The trial court's charge in the instant case reflects
this view.
It has also been said by the Supreme Court that a witness before a congressional committee is
bound to judge rightly as to pertinency. His honest mistake of law is no defense. Sinclair v.
United States, 1929, 279 U.S. 263, 299, 49 S. Ct. 268, 73 L. Ed. 692. But since a conviction
for contempt may be had only for refusal to respond to pertinent inquiries, pertinency is an
element of the offense to be proved, and the burden of proof is on the United States. Bowers
v. United States, supra; see Sinclair v. United States, supra, 279 U.S. at pages 296-297, 49 S.
Ct. at page 272-273. It is for this reason that a defendant cannot be held to have waived his
objection to the pertinency of an investigating committee's inquiries. In the instant case it is
therefore immaterial that Orman did not explicitly raise this objection at each hearing he
attended.
Orman does not contend here that the Senate Special Committee to Investigate Organized
Crime in Interstate Commerce was gathering material for unconstitutional legislative
purposes. Such a contention could not succeed. See U.S. Const. Art. 1, § 8; United States v.
Di Carol, D.C.N.D. Ohio 1952, 102 F. Supp. 597. Contrast Rumely v. United States, supra.
He does challenge the pertinency of the inquiries made of him to the Committee's grant of
authority. This authority is set forth in Senate Resolution 202, 81st Cong., 2nd Sess. (May 3,
1950), creating the Committee and directing it: "* * * to make a full and complete study and
investigation of whether organized crime utilizes the facilities of interstate commerce or
otherwise operates in interstate commerce in furtherance of any transactions which are in
violation of the law of the United States or of the State in which the transactions occur, and, if
so, the manner and extent to which, and the identity of the persons, firms or corporations by
which such utilization is being made, what facilities are being used, and whether or not
organized crime utilizes such interstate facilities or otherwise operates in interstate commerce
for the development of corrupting influences in violation of law of the United States or the
laws of any State * * *."

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Orman contends that the United States has not sustained the burden of proof required of it
that the contents of his 1951 book of accounts and the name of the person who loaned him
$25,000 were pertinent to this investigation of interstate crime.
We conclude first that the trial court's charge to the jury on the question of pertinency was a
correct statement of the law. As the trial court stated during the trial, "* * * the question is:
was the question and the possible answer pertinent at that time to the [Committee's] inquiry?"
(Emphasis added.) This of course applies equally to the request to disclose the entries in the
1951 book of accounts. Orman, however, prepared his defense on the assumption that the
actual contents of the book and the name of the person who loaned him $25,000 were
evidence to be considered in determining pertinency. This assumption was wrong. Under
Section 192 it is the question which must be pertinent. Marshall v. United States, supra; see
Sinclair v. United States, supra, 279 U.S. at pages 296-297, 49 S. Ct. at pages 272-273;
United States ex rel. Cunningham v. Barry, 3 Cir., 1928, 29 F.2d 817, reversed on other
grounds, 1929, 279 U.S. 597, 49 S. Ct. 452, 73 L. Ed. 867. An innocent, true answer does not
destroy the pertinency of the question. It was therefore not erroneous for the trial court to
keep Orman's evidence from the jury, even assuming that this evidence disclosed no criminal
conduct related to the inquiry into interstate crime.
This does not mean that a congressional committee possesses the power to examine private
citizens indiscriminately in the mere hope of stumbling upon valuable information and to cite
them for contempt if they refuse to answer. Where, as in the instant case, the questions asked
and the documents requested, are not clearly pertinent on their faces to the committee's
authorized investigation, the United States in a contempt proceeding must prove by other
evidence the relation of the questions, the documents and the particular witness to the
investigation. Bowers v. United States, supra. We think the United States introduced adequate
evidence to enable the jury to find that the inquiries made of Orman were pertinent. The
principal witness for the prosecution was Mr. Moser, who was, as we have said, Chief
Counsel to the Committee at the time of Orman's interrogation. He testified that Orman was
selected to appear because of information received by the Committee in the course of their
investigations in Atlantic City, Orman's place of residence. This in itself was insufficient to
prove pertinency but it is some evidence why it was reasonable for the Committee to summon
Orman. The United States also introduced in evidence the transcript of Orman's testimony
before the Committee on July 6, 7 and 17, 1951. At numerous places in that testimony Orman
himself admitted that he had received substantial portions of his income for recent years from
gambling.
Orman's counsel at the trial made no attempt to deny this, stating: "I don't say he is not a
gambler but, I say, that is not his principal business." The Court replied: "Well, aren't we
arguing about a distinction without a difference."
This, taken in conjunction with the Committee's knowledge of the methods of operation of
gamblers over state lines,4 made it pertinent for the Committee to inquire further into the
items and sources of Orman's income. Orman's objection to the relevancy of this testimony
was properly overruled. The trial court charged the jury that this evidence was received "so
that you * * * [can] determine from all of the information that the Committee had obtained
from Mr. Orman at that time whether or not the book might contain pertinent information to
the inquiry before the Senate, whether the answer to the question `Where did you get the
$25,000 and from whom did you get it' might be pertinent to the Senate in its inquiry under
question."
We approve this charge. It was certainly pertinent under the circumstances for the Committee
to seek facts which might show whether Orman was linked with unlawful interstate

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gambling. Although his responses might have proved that he was not, it was not his right to
deny this knowledge to the Committee.
In Bowers v. United States, supra, somewhat similar questions asked a witness by this same
Committee were held not pertinent to the Committee's investigation in a unanimous decision
by the United States Court of Appeals for the District of Columbia. The distinction from the
instant case, however, is that in the Bowers case the United States failed to produce sufficient
evidence to prove the pertinency of questions not prima facie pertinent. Cf. also United States
ex rel. Cunningham v. Barry, supra. Orman here might well have been justified in refusing to
answer many of the early questions asked him — for example, those relating to his
employment as a teenager — but once he admitted substantial income from gambling, the
more detailed inquiries now before us became pertinent.
Orman also contends that pertinency is a question of law and as such may not be submitted to
the jury. Courts have said that the question is one of law. Sinclair v. United States, supra, 279
U.S. at page 298, 49 S. Ct. at page 273; Morford v. United States, 1949, 85 U.S.App.D.C.
172, 176 F.2d 54, 57, reversed on other grounds, 1950, 339 U.S. 258, 70 S. Ct. 586, 94 L. Ed.
815. But in Sinclair the Supreme Court explained that the "question of pertinency * * * was
rightly decided by the court as one of law. It did not depend upon the probative value of
evidence." (Emphasis added.) In the instant case, however, evidence aliunde was introduced
to prove pertinency. The weight and probative value of this evidence was for the jury,
particularly since pertinency was an element of the criminal offense. We conclude that in this
situation the trial court, taking the evidence as true, retains the power to decide that
pertinency has not been established. But if the court concludes that pertinency has been
proven, it is proper for it so to rule and then to submit the question and the evidence to the
jury under appropriate instructions. This in substance is what the court below did.5
The court below interpreted rightly the law concerning pertinency. It could be urged that the
language of Counts 1 and 2 of the indictment alleging "which records were pertinent to the
matter under inquiry by the * * * Committee" (Emphasis added), was at variance from the
correct view that the single issue for determination at the trial was whether the demand made
for the production of records was pertinent to the matter under inquiry by the Committee. As
we have stated it is immaterial that the contents of the book might prove eventually to lack
pertinency to the matter under inquiry. The book was "pertinent" in the sense that it was the
kind of record which under all the circumstances could be and was properly called for by the
Committee. As we have said, its pertinency did not depend on its contents. Once it was
established by the evidence that the demand made for Orman's book was pertinent and that he
had refused compliance with this demand he could be found guilty of contempt.6
But another view properly may be taken of the allegations in Counts 1 and 2 that the "records
were pertinent." These allegations can well be treated as surplusage and for this reason the
United States did not have to prove them. See Hall v. United States, 1898, 168 U.S. 632, 18
S. Ct. 237, 42 L. Ed. 607, and Hagner v. United States, 1932, 285 U.S. 427, 431, 52 S. Ct.
417, 419, 76 L. Ed. 861. In the latter case the Supreme Court stated: "The rigor of old
common law rules of criminal pleading has yielded, in modern practice, to the general
principle that formal defects, not prejudicial, will be disregarded. The true test of the
sufficiency of an indictment is not whether it could have been made more definite and
certain, but whether it contains the elements of the offense intended to be charged, `and
sufficiently apprises the defendant of what he must be prepared to meet, and, in case any
other proceedings are taken against him for a similar offense, whether the record shows with
accuracy to what extent he may plead a former acquittal or conviction.'" The principles stated
were reaffirmed in Berger v. United States, 1935, 295 U.S. 78, 82, 55 S. Ct. 629, 79 L. Ed.

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1314. We applied them in United States v. Angelo, 3 Cir., 1946, 153 F.2d 247, 250. Cf.
United States v. Di Carlo, supra, 102 F. Supp. at page 601.
Finally on this aspect of the case, the record is devoid of any indication that Orman was
prejudiced by reason of the allegations referred to. He has asserted no error in respect to them
and made no objection to the indictment on this ground.
Orman also suggests that the Committee went beyond the scope of any contemplated
legislation and assumed the functions of a grand jury. Cf. Kilbourn v. Thompson, supra. But
when the general subject of investigation is one concerning which Congress can legislate, and
when the information sought might aid the congressional consideration, a legitimate
legislative purpose must be presumed. See Morford v. United States, supra, and McGrain v.
Daugherty, supra, 273 U.S. at page 178, 47 S. Ct. at page 330. The motives of the individual
members of the Committee may not be impugned. United States v. Josephson, 2 Cir. 1947,
165 F.2d 82, certiorari denied, 333 U.S. 838, 68 S. Ct. 609, 92 L. Ed. 1122 rehearing denied,
1948, 333 U.S. 858, 68 S. Ct. 731, 92 L. Ed. 1138; Eisler v. United States, 83 U.S.App.D.C.
315, 170 F.2d 273, certiorari granted, 1948, 335 U.S. 857, 69 S. Ct. 130, 93 L. Ed. 404,
certiorari dismissed, 1949, 338 U.S. 883, 70 S. Ct. 181, 94 L. Ed. 542.
We come now to Orman's contention that it was his right to refuse to respond to the inquiries
made by the Committee unless the Committee agreed not to publicize the information he
would give them. As the Supreme Court in Sinclair v. United States, supra, 279 U.S. at page
292, 49 S. Ct. at page 271, has so cogently said: "It has always been recognized in this
country, and it is well to remember, that few if any of the rights of the people guarded by
fundamental law are of greater importance to their happiness and safety than the right to be
exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect
of their personal and private affairs." Moreover, to "compel an individual to produce
evidence, under penalties if he refuses, is in effect a search and seizure, and, unless confined
to proper limits, violates his constitutional right to immunity in that regard. Boyd v. United
States, [1886], 116 U.S. 616, 621-622, 6 S. Ct. 524, 29 L. Ed. 746." Annenberg v. Roberts,
1938, 333 Pa. 203, 213, 2 A.2d 612, 617. See Zimmermann v. Wilson, 3 Cir., 1936, 81 F.2d
847, 849; Id., 3 Cir. 1939, 105 F.2d 583.
On the other hand, there can be no question of the power of Congress to undertake fact-
finding inquiries in aid of legislation. McGrain v. Daugherty, supra. This necessitates some
curtailment of the individual's right to be let alone, just as the efficient exercise of judicial
power imposes upon private citizens a duty to submit their conduct to its scrutiny. See
Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L.
Rev. 153, 219 (1926). Indeed, Section 193, Title 2, U.S.C.A., recognizes that "No witness is
privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall
be examined by either House of Congress, or by any committee of either House, upon the
ground that his testimony to such fact or his production of such paper may tend to disgrace
him or otherwise render him infamous." The individual must rely, for the protection of his
privacy, upon the requirements of pertinency discussed above. Where a congressional
investigation enters a field to which the First Amendment is applicable, courts will be
particularly careful to check unlawful lines of inquiry. Rumely v. United States, supra. But
even here it must be remembered that "the right of free speech is not absolute but must yield
to national interests justifiably thought to be of larger importance. The same is true of the
right to remain silent. When legislating to avert what it believes to be a threat of substantive
evil to national welfare, Congress may abridge either freedom."7 See Lawson v. United
States, 1949, 85 U.S.App.D.C. 167, 176 F.2d 49, 52, certiorari denied, 339 U.S. 934, 70 S.
Ct. 663, 94 L. Ed. 1352, rehearing denied, 1950, 339 U.S. 972, 70 S. Ct. 994, 94 L. Ed. 1379.

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Similarly under the Fourth Amendment: it is only "unreasonable" searches and seizures
which are prohibited. See Zimmermann v. Wilson, supra. It appears, therefore, that there is in
law no absolute right of privacy apart from these familiar protections. See Barsky v. United
States, supra.
As shown above, the Committee had reason to investigate Orman as it did. Cf. Marshall v.
United States, supra. There could be no doubt in Orman's mind as to what information the
Committee desired, or the general purpose for which the Committee had been appointed.
Therefore Orman is in error in claiming a violation of his right under the Fourth and Fifth
Amendments8 and of his "right of privacy" vis a vis the Committee.
There is, however, another aspect to Orman's refusals to cooperate with the Committee. As
we read his testimony, his refusals were not absolute claims of right to conceal information
from the Committee. He stated his willingness that the Committee should have his
information provided it was not given to the public. As he testified, he was in business in
Atlantic City and was therefore unwilling that the public should have access to his financial
records particularly since, in his view, there was nothing in these records which could help
the Committee. The condition which he sought to impose upon his responses to the
Committee's inquiries seemed reasonable to him. This raises a problem quite unlike that
raised by an outright refusal to give information to the Committee under any circumstances.
In general a witness before a congressional committee must abide by the committee's
procedures and has no right to vary them or to impose conditions upon his willingness to
testify. Eisler v. United States, supra; United States v. Costello, 2 Cir., 198 F.2d 200,
certiorari denied, 1952, 344 U.S. 874, 73 S. Ct. 166. It has been held, however, that witnesses
before the Senate Crime Committee properly refused to testify in a hearing room filled with
television and newsreel cameras, news photographers with flashbulbs, radio microphones and
a large crowd of spectators. United States v. Kleinman, D.D.C. 1952, 107 F. Supp. 407, 408.
Like Orman, the witnesses in Kleinman objected that their constitutional rights would be
violated by being compelled to testify under circumstances of such publicity. But the court in
Kleinman sustained their objection on the ground that the atmosphere of the hearing room
was calculated "necessarily so to disturb and distract any witness to the point that he might
say today something that next week he will realize was erroneous." The court further
reasoned: "The only reason for having a witness on the stand, either before a committee of
Congress or before a court, is to get a thoughtful, calm, considered and, it is to be hoped,
truthful disclosure of facts. That is not always accomplished, even under the best of
circumstances. But at least the atmosphere of the forum should lend itself to that end." The
court noted that its decision was without precedent.
We think the Kleinman case is not persuasive here. Orman's testimony was given at a closed
session of the Committee. There were no distracting circumstances alleged which might have
jeopardized the accuracy and truthfulness of his answers. Orman simply feared that following
the hearings of July 7 and 17, 1951, his testimony would be given to the newspapers, as it
apparently had been at the close of the session on July 6, 1951. We cannot see that this fear
would affect his ability to give the information requested. It would certainly have nothing to
do with his ability to produce his 1951 book of accounts.
Orman insists upon his right to make what was called a "closed" session of the Committee, a
closed session in fact. He urges the court to take judicial notice of the purpose of the
Committee to obtain maximum publicity for all its hearings, regardless of the nature of the
information received. This brings before us the question of the extent to which a court can
and should regulate the procedures of a lawful congressional committee making pertinent
inquiries. As we have said, the individual motives of the members of such a committee

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cannot be impugned. On the other hand, there is much to be said for a cooperating witness'
right to demand that information which cannot aid the committee in its legislative purpose be
withheld from the public. We conclude, however, that this is a matter for legislative rather
than judicial control. Unless a court were to receive the entire record of a committee's
hearings, it would be almost impossible to tell which items of testimony should properly be
included in the committee's report to Congress, or otherwise publicized, and which should
not. It might well be proper for the committee to report, over the objection of the witness to
this publicity, that certain persons, previously suspected, were not connected with the matters
investigated, and to give reasons for this conclusion. The Senate Crime Committee was
authorized to ascertain the identity of persons using the facilities of interstate commerce in
furtherance of criminal activities. Orman cannot be permitted to prevent the Committee from
reporting its investigation of him, and including his testimony in its report.
The Committee was entitled to refuse to accept Orman's condition before it knew what
information Orman had to give. As we have said, this is not a case where the inquiries
themselves were not pertinent. Perhaps it would be desirable for Congress to limit the
newspaper and television publicity given to the testimony of witnesses — we believe that in
some investigations this has been the practice — but in accord with the Eisler and Costello
cases, supra, we hold that a court will not enforce a condition imposed upon committee
procedure by a witness, at least where no circumstances appear which might affect the ability
of the witness to give clear and truthful testimony.
We conclude therefore that Orman's refusal to identify the source of the $25,000 loan was
deliberate and intentional.9 His claim of a right of privacy was no justification under the
circumstances at bar.
One problem remains, which we raise of our own accord, for it is not set out in Orman's
grounds for appeal. The court below imposed a twelve months sentence on Counts 1 and 3,
the terms to run concurrently, and suspending imposition of sentence on Counts 2 and 4,
placed Orman on probation for one year, the terms of probation to run concurrently, and to
commence at the expiration of the sentences imposed on Counts 1 and 3. The statute under
which Orman was tried and was found guilty is set out in note 3, supra. It provides for
punishment both by fine and imprisonment but specifies that the imprisonment shall not be
less than one month nor more than twelve months.
We must now consider whether there was not a multiplying of penalties by the sentences
imposed for what are not in substance more than two separate contempts. Where there are
separate refusals to produce documents or to answer separate questions it is proper for each
refusal to be set forth in a separate count of the indictment. United States v. Emspak, D.D.C.
1950, 95 F. Supp. 1012. But where the separate questions seek to establish but a single fact,
or relate to but a single subject of inquiry, only one penalty for contempt may be imposed.
See United States v. Yukio Abe, D.C.Hawaii 1951, 95 F. Supp. 991, 992. Cf. Trumbo v.
United States, 1949, 85 U.S.App.D.C. 167, 176 F.2d 49, certiorari denied, 339 U.S. 934, 70
S. Ct. 663, 94 L. Ed. 1353, rehearing denied, 1950, 339 U.S. 972, 70 S. Ct. 995, 94 L. Ed.
1379; Fawick Airflex Co. v. United Electrical Radio & Machine Workers of America, Ohio
App.1950, 92 N.E.2d 431; People ex rel. Amarante v. McDonnell, Sup.1950, 100 N.Y.S.2d
463. Where the witness has refused to give any testimony, a committee cannot multiply his
contempt by continuing to ask him questions each time eliciting the same answer. United
States v. Costello, supra. Counts 1 and 2 and Counts 3 and 4 concern different phrasings of
two questions. Orman's refusal to produce the book and to answer each form of the question
as to the source of the $25,000 does not amount to four contempts. It follows, therefore, that
Orman can legally receive but two sentences, each not in excess of the statutory maximum.

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The court, however, has imposed two penalties: one, a sentence of twelve months
imprisonment, and two, a year's probation commencing at the end of the twelve months
imprisonment.
As we have said, Counts 1 and 2 were based on refusals to produce the book. Counts 3 and 4
were based on refusals to respond to questions respecting the $25,000 loan. The court
selected Count 1 (book) and Count 3 (loan) for the imposition of the maximum prison
sentence prescribed by the statute. In doing so the court exhausted its sentencing power and
could not — at least under the form of its existing judgment — impose probation. The court
intended to impose a prison sentence of twelve months on Orman and to put him on probation
for one year following the expiration of his prison term. The sentence of probation imposed is
illegal for as we have said the court had no sentencing power left.
Accordingly, we will affirm the judgments of conviction on all four counts and will affirm
the judgments of sentence on Counts 1 and 3. To clear the record we will vacate the
judgments of sentence on Counts 2 and 4. These are nullities since the court was without the
power to impose them.
1

The contents of the Senate Resolutions constituting the Committee and containing its powers
are quoted in pertinent part at later points in this opinion. See "Part I". The Committee's
powers were extended to September 1, 1951, by Senate Resolution 129, 82nd Cong., 1st Sess.
(April 24, 1951)
2

The Resolution was as follows:

"S.Res. 211
"In the Senate of the United States,
"October 1, 1951.
"Resolved, That the President of the Senate certify the report of the Special Committee To
Investigate Organized Crime in Interstate Commerce of the United States Senate as to the
refusal of Herman Orman to disclose to the said special committee the contents of those
records and documents which he had been directed by subpoena to produce and to answer a
series of questions before the said special committee, together with all the facts in connection
therewith, under the seal of the United States Senate to the United States attorney for the
District of New Jersey, to the end that the said Herman Orman may be proceeded against in
the manner and form provided by law.
"Attest: "Leslie L. Biffle, Secretary."
3

"Every person who having been summoned as a witness by the authority of either House of
Congress, to give testimony or to produce papers upon any matter under inquiry before either
House, or any committee of either House of Congress, willfully makes default, or who,
having appeared, refuses to answer any question pertinent to the question under inquiry, shall
be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less
than $100, and imprisonment in a common jail for not less than one month nor more than
twelve months."
4

This was testified to at the trial by Mr. Moser

5

67 | P a g e
During argument on Orman's motion for a directed verdict, the court below found as a matter
of law the questions involved "could be" pertinent and that it was for the jury to find
"whether or not they were actually so." Transcript of testimony pp. 180-181
6

Orman's arguments respecting the scope of the subpoenas issued to him require brief
discussion. As to the subpoenas calling for the production of the book of accounts, Orman
argues that he was "not required to turn over the book", as charged in the indictment and did
not fail to "produce" it as required by the statute. Orman seeks to distinguish between these
two phrases arguing that the former goes beyond the language of the statute so as to make the
indictment invalid. He says that while he did not "turn over" the book he did "produce" it by
bringing it with him to the hearings and offering its contents with the proviso that they
receive no publicity. We cannot accept this argument. We think the phrases are
indistinguishable in this context and the resolution of authority granted to the Committee by
Congress. The statute empowered the Committee to compel the production of papers and
documents and to make them part of its record. This was what the Committee tried to do with
Orman's book. Perhaps the Committee could not have permanently expropriated the book but
no such purpose appears here
Orman's contention respecting the difference between the meaning of the phrases "produce"
and "turn over" is without merit. To carry a book into a hearing and to assert compliance with
a subpoena to produce by saying in effect: "I produce the book and here it is. But you may
not put it into the record.", is to render the statute nugatory. Orman's alleged right to make the
production of the book conditional upon a promise not to publicize its contents is discussed at
a later point in this opinion under the heading "II".
As to Orman's refusal to divulge the source of the $25,000 loan, the validity and scope of the
subpoenas served on him are immaterial since he appeared before the Subcommittee without
contesting the summons. See United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari
denied 333 U.S. 838, 68 S. Ct. 609, 92 L. Ed. 1122, rehearing denied, 1948, 333 U.S. 858, 68
S. Ct. 731, 92 L. Ed. 1138; Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273,
certiorari granted, 1948, 335 U.S. 857, 69 S. Ct. 130, 93 L. Ed. 404, certiorari dismissed,
1949, 338 U.S. 883, 70 S. Ct. 181, 94 L. Ed. 542.
7

Quoted by the United States Court of Appeals for the District of Columbia Circuit from
National Maritime Union v. Herzog, 78 F. Supp. 146, 165, affirmed, 1948, 334 U.S. 854, 68
S. Ct. 1529, 92 L. Ed. 1776
8

At no point did Orman claim his privilege against self-incrimination

9

Orman does not contend that the Committee did not inform him that his answers were
unsatisfactory and did not give him an opportunity to abandon his ground for refusal. Cf. Bart
v. United States, 1952, 91 U.S.App.D.C. 370, 203 F.2d 45

68 | P a g e
U.S. Supreme Court

Quinn v. United States, 349 U.S. 155 (1955)

Quinn v. United States

No. 8

Argued April 4-5, 1955

Decided May 23, 1955

349 U.S. 155

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Petitioner and two others were summoned to testify before a congressional investigating
committee. One of them refused to say whether he was or had been a member of the
Communist Party, basing his refusal on "the First and Fifth Amendments," as well as "the
First Amendment to the Constitution, supplemented by the Fifth Amendment." Petitioner
adopted the other's statement as his own, and refused to answer the same question. The
committee did not ask him to state more specifically the ground for his refusal to answer, and
did not specifically overrule his objection or direct him to answer.

Held: in his trial for contempt of Congress under 2 U.S.C. § 192, the District Court should
have entered a judgment of acquittal. Pp. 349 U. S. 156-170.

1. Petitioner's references to the Fifth Amendment sufficiently invoked his constitutional

privilege against self-incrimination. Pp. 349 U. S. 160-165.

(a) The constitutional guaranty against self-incrimination must be construed liberally in favor
of the right it was intended to secure -- especially in criminal trials for refusal to answer.
Pp. 349 U. S. 161-162.

(b) An answer to the question whether he was a member of the Communist Party might have
tended to incriminate petitioner. Blau v. United States, 340 U. S. 159. P. 349 U. S. 162.

(c) If an objection to a question is made in any language that a committee may reasonably be
expected to understand as an attempt to invoke the privilege, it must be respected both by the
committee and by a court in a prosecution under § 192. Pp. 349 U. S. 162-163.

(d) The mere fact that petitioner also relied on the First Amendment did not preclude his
reliance on the Fifth Amendment as well. P. 349 U. S. 163.

(e) Petitioner's references to the Fifth Amendment were sufficient to put the committee on
notice of an apparent claim of the privilege; and it then became incumbent on the committee

69 | P a g e
either to accept the claim or to ask petitioner whether he was, in fact, invoking the privilege.
Pp. 349 U. S. 163-165.

Page 349 U. S. 156

2. On the record in this case, there was not adequate proof of a deliberate intentional refusal
to answer, which is an essential element of a violation of 2 U.S.C. § 192. Pp. 349 U. S. 165-
170.

(a) This element of the offense, like any other, must be proved beyond a reasonable doubt.
P. 349 U. S. 115.

(b) Unless the witness is clearly apprised that the committee demands his answer
notwithstanding his objection, there can be no conviction under § 192 for his refusal to
answer. Pp. 349 U. S. 165-166.

(c) There is nothing in the record of the committee hearing from which petitioner could have
determined with a reasonable degree of certainty that the committee demanded his answer
despite his objection. Pp. 349 U. S. 166-167.

(d) By the enactment of 2 U.S.C. § 192, Congress did not intend to dispense with the
traditional requirement that the witness must be clearly apprised that an answer is demanded
notwithstanding his objection. Pp. 349 U. S. 167-170.

91 U.S.App.D.C. 344, 203 F.2d 20, reversed.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

Petitioner was convicted for contempt of Congress under 2 U.S.C. § 192 in the District Court
of the District of Columbia. Section 192 provides for the punishment of any witness before a
congressional committee "who . . . refuses to answer any question pertinent to the question
under inquiry. . . ." [Footnote 1] On appeal, the Court of Appeals

Page 349 U. S. 157

for the District of Columbia Circuit reversed the conviction and remanded the case for a new
trial. [Footnote 2] Claiming that the Court of Appeals should have directed an acquittal,
petitioner applied to this Court for certiorari. We granted the writ because of the fundamental
and recurrent character of the questions presented. [Footnote 3]

Pursuant to subpoena, petitioner appeared on August 10, 1949, before a subcommittee of the
Committee on Un-American Activities of the House of Representatives. Petitioner was then a
member and field representative of the United Electrical, Radio and Machine Workers of
America. Also subpoenaed to appear on that day were Thomas J. Fitzpatrick and Frank
Panzino, two officers of the same union. At the outset of the hearings, counsel for the
committee announced that the purpose of the investigation was to inquire into "the question
of Communist affiliation or association of certain members" of the union and "the
advisability of tightening present security requirements in industrial plants working on certain
Government contracts." [Footnote 4] All three witnesses were asked questions concerning
alleged membership in the Communist Party. All three declined to answer.

70 | P a g e
Fitzpatrick was the first to be called to testify. He based his refusal to answer on "the First
and Fifth Amendments," as well as "the First Amendment to the

Page 349 U. S. 158

Constitution, supplemented by the Fifth Amendment." [Footnote 5] Immediately following

Fitzpatrick's testimony, Panzino was called to the stand. In response to the identical questions
put to Fitzpatrick, Panzino specifically adopted as his own the grounds relied upon by
Fitzpatrick. [Footnote 6] In addition, at one point in his testimony, Panzino stated that, "I
think again, Mr. Chairman, under the Fifth Amendment, that is my own personal belief."
[Footnote 7] On the following day, petitioner, unaccompanied by counsel, was called to the
stand and was also asked whether he had ever been a member of the Communist Party. Like
Panzino before him, he declined to answer, specifically adopting as his own the grounds
relied upon by Fitzpatrick. [Footnote 8]

Page 349 U. S. 159

On November 20, 1950, all three witnesses were indicted under § 192 for their refusals to
answer. [Footnote 9] The three cases were tried before different judges, each sitting without a
jury. Fitzpatrick and Panzino were acquitted. In Fitzpatrick's case, it was held that his
references to "the First and Fifth Amendments" and "the First Amendment to the
Constitution, supplemented by the Fifth Amendment" constituted an adequate means of
invoking the Self-Incrimination Clause of the Fifth Amendment. [Footnote 10] Similarly, in
Panzino's case, it was held that his reference to "the Fifth Amendment" was sufficient to
plead the privilege. [Footnote 11] In petitioner's case, however, the District Court held that a
witness may not incorporate the position of another witness, and rejected petitioner's defense
based on the Self-Incrimination Clause. [Footnote 12] Petitioner was accordingly convicted
and sentenced to a term of six months in jail and a fine of $500.

Page 349 U. S. 160

In reversing this conviction, the Court of Appeals, sitting en banc, held that "[n]o formula or
specific term or expression is required" in order to plead the privilege, and that a witness may
adopt as his own a plea made by a previous witness. [Footnote 13] Thus, the Court of
Appeals viewed the principal issue in the case as "whether Fitzpatrick did or did not claim the
privilege." [Footnote 14] On this issue, a majority of the Court of Appeals expressed no view.
They agreed that a reversal, without more, would be in order if they "were of clear opinion
that Fitzpatrick, and therefore Quinn, did claim the privilege." But they were "not of that
clear opinion." [Footnote 15] The Court of Appeals therefore ordered a new trial for
determination of the issue by the District Court. [Footnote 16] The Court of Appeals also
directed the District Court on retrial to determine whether petitioner "was aware of the
intention of his inquirer that answers were required despite his objections." [Footnote 17] In
that regard, however, it rejected petitioner's contention that a witness cannot be convicted
under § 192 for a refusal to answer unless the committee overruled his objections and
specifically directed him to answer. [Footnote 18]

It is from that decision that this Court granted certiorari.

71 | P a g e
There can be no doubt as to the power of Congress, by itself or through its committees, to
investigate matters and conditions relating to contemplated legislation. This power, deeply
rooted in American and English institutions, is indeed coextensive with the power to
legislate. Without the power to investigate -- including, of course, the

Page 349 U. S. 161

authority to compel testimony, either through its own processes [Footnote 19] or through
judicial trial [Footnote 20] -- Congress could be seriously handicapped in its efforts to
exercise its constitutional function wisely and effectively. [Footnote 21]

But the power to investigate, broad as it may be, is also subject to recognized limitations. It
cannot be used to inquire into private affairs unrelated to a valid legislative purpose.
[Footnote 22] Nor does it extend to an area in which Congress is forbidden to legislate.
[Footnote 23] Similarly, the power to investigate must not be confused with any of the
powers of law enforcement; those powers are assigned under our Constitution to the
Executive and the Judiciary. [Footnote 24] Still further limitations on the power to investigate
are found in the specific individual guarantees of the Bill of Rights, such as the Fifth
Amendment's privilege against self-incrimination which is in issue here. [Footnote 25]

The privilege against self-incrimination is a right that was hard-earned by our forefathers.
The reasons for its inclusion in the Constitution -- and the necessities for its preservation --
are to be found in the lessons of history. [Footnote 26] As early as 1650, remembrance of the
horror of Star Chamber proceedings a decade before had firmly established the privilege in
the common law of England. Transplanted to this country as part of our legal heritage, it soon
made its way into various state constitutions, and ultimately, in 1791, into the federal Bill of
Rights. The privilege, this Court has stated,

"was generally regarded then, as now,

Page 349 U. S. 162

as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a
safeguard against heedless, unfounded, or tyrannical prosecutions. [Footnote 27]"

Coequally with our other constitutional guarantees, the Self-Incrimination Clause "must be
accorded liberal construction in favor of the right it was intended to secure." [Footnote 28]
Such liberal construction is particularly warranted in a prosecution of a witness for a refusal
to answer, since the respect normally accorded the privilege is then buttressed by the
presumption of innocence accorded a defendant in a criminal trial. To apply the privilege
narrowly or begrudgingly -- to treat it as an historical relic, at most merely to be tolerated -- is
to ignore its development and purpose.

In the instant case, petitioner was convicted for refusing to answer the committee's question
as to his alleged membership in the Communist Party. Clearly an answer to the question
might have tended to incriminate him. [Footnote 29] As a consequence, petitioner was
entitled to claim the privilege. The principal issue here is whether or not he did.

72 | P a g e
It is agreed by all that a claim of the privilege does not require any special combination of
words. [Footnote 30] Plainly, a witness need not have the skill of a lawyer to invoke the
protection of the Self-Incrimination Clause. If an objection

Page 349 U. S. 163

to a question is made in any language that a committee may reasonably be expected to

understand as an attempt to invoke the privilege, it must be respected both by the committee
and by a court in a prosecution under § 192.

Here petitioner, by adopting the grounds relied upon by Fitzpatrick, based his refusal to
answer on "the First and Fifth Amendments" and "the First Amendment to the Constitution,
supplemented by the Fifth Amendment." The Government concedes -- as we think it must --
that a witness may invoke the privilege by stating "I refuse to testify on the ground of the
Fifth Amendment." Surely, in popular parlance and even in legal literature, the term "Fifth
Amendment" in the context of our time is commonly regarded as being synonymous with the
privilege against self-incrimination. The Government argues, however, that the references to
the Fifth Amendment in the instant case were inadequate to invoke the privilege because
Fitzpatrick's statements are more reasonably understood as invoking rights under the First
Amendment. We find the Government's argument untenable. The mere fact that Fitzpatrick
and petitioner also relied on the First Amendment does not preclude their reliance on the
Fifth Amendment as well. [Footnote 31] If a witness urges two constitutional objections to a
committee's line of questioning, he is not bound at his peril to choose between them. By
pressing both objections, he does not lose a privilege which would have been valid if he had
only relied on one.

The Government, moreover, apparently concedes that petitioner intended to invoke the
privilege. In its brief the Government points out

"the probability that petitioner's ambiguous references to the Fifth Amendment

Page 349 U. S. 164

. . . were phrased deliberately in such vague terms so as to enable petitioner . . . to obtain the
benefit of the privilege without incurring the popular opprobrium which often attaches to its
exercise. [Footnote 32]"

But the fact that a witness expresses his intention in vague terms is immaterial so long as the
claim is sufficiently definite to apprise the committee of his intention. As everyone agrees, no
ritualistic formula is necessary in order to invoke the privilege. In the instant case, Quinn's
references to the Fifth Amendment were clearly sufficient to put the committee on notice of
an apparent claim of the privilege. It then became incumbent on the committee either to
accept the claim or to ask petitioner whether he was in fact invoking the privilege.
Particularly is this so if it is true, as the Government contends, that petitioner feared the
stigma that might result from a forthright claim of his constitutional right to refuse to testify.
It is precisely at such times -- when the privilege is under attack by those who wrongly
conceive of it as merely a shield for the guilty -- that governmental bodies must be most
scrupulous in protecting its exercise.

73 | P a g e
This ruling by no means leaves a congressional committee defenseless at the hands of a
scheming witness intent on deception. When a witness declines to answer a question because
of constitutional objections and the language used is not free from doubt, the way is always
open for the committee to inquire into the nature of the claim before making a ruling. If the
witness unequivocally and intelligently waives any objection based on the Self-Incrimination
Clause, or if the witness refuses a committee request to state whether he relies on the Self-
Incrimination Clause, he cannot later invoke its protection

Page 349 U. S. 165

in a prosecution for contempt for refusing to answer that question. Here, the committee made
no attempt to have petitioner particularize his objection. Under these circumstances, we must
hold that petitioner's references to the Fifth Amendment were sufficient to invoke the
privilege, and that the court below erred in failing to direct a judgment of acquittal.

II

There is yet a second ground for our decision.

Section 192, like the ordinary federal criminal statute, requires a criminal intent -- in this
instance, a deliberate, intentional refusal to answer. [Footnote 33] This element of the
offense, like any other, must be proved beyond a reasonable doubt. Petitioner contends that
such proof was not, and cannot be, made in this case.

Clearly not every refusal to answer a question propounded by a congressional committee

subjects a witness to prosecution under § 192. Thus, if he raises an objection to a certain
question -- for example, lack of pertinency or the privilege against self-incrimination -- the
committee may sustain the objection and abandon the question, even though the objection
might actually be without merit. In such an instance, the witness' refusal to answer is not
contumacious, for there is lacking the requisite criminal intent. Or the committee may
disallow the objection, and thus give the witness the choice of answering or not. Given such a
choice, the witness may recede from his position and answer the question. And if he does not
then answer, it may fairly be said that the foundation has been laid for a finding of criminal

Page 349 U. S. 166

intent to violate § 192. In short, unless the witness is clearly apprised that the committee
demands his answer notwithstanding his objections, there can be no conviction under § 192
for refusal to answer that question. [Footnote 34]

Was petitioner so apprised here? At no time did the committee specifically overrule his
objection based on the Fifth Amendment; nor did the committee indicate its overruling of the
objection by specifically directing petitioner to answer. In the absence of such committee
action, petitioner was never confronted with a clear-cut choice between compliance and
noncompliance, between answering the question and risking prosecution for contempt. At
best, he was left to guess whether or not the committee had accepted his objection.

This ambiguity in the committee's position is apparent from the transcript of the hearing.
[Footnote 35] Immediately after petitioner stated that he was adopting Fitzpatrick's objection,
the committee chairman asked petitioner:

74 | P a g e
". . . will you now answer the question whether you are now or ever have been a member of
the Communist Party, or do you decline to answer?"

In response to this, petitioner stated for the first time that he would not answer.

Page 349 U. S. 167

He said: "I decline to discuss with the committee questions of that nature." Committee
counsel thereupon stated that further questioning "relating to those matters" was "not
necessary," and proceeded upon a new line of inquiry. There is nothing in this colloquy from
which petitioner could have determined with a reasonable degree of certainty that the
committee demanded his answer despite his objection. Rather, the colloquy is wholly
consistent with the hypothesis that the committee had, in fact, acquiesced in his objection.

Our view that a clear disposition of the witness' objection is a prerequisite to prosecution for
contempt is supported by longstanding tradition here and in other English-speaking nations.
[Footnote 36] In this country, the tradition

Page 349 U. S. 168

has been uniformly recognized in the procedure of both state and federal courts. [Footnote
37] It is further reflected in the practice of congressional committees prior to the enactment of
§ 192 in 1857; a specific direction to answer was the means then used to apprise a witness of
the overruling of his objection. [Footnote 38] Against this background, § 192 became

Page 349 U. S. 169

law. [Footnote 39] No relaxation of the safeguards afforded a witness was contemplated by
its sponsors. In explaining the bill in the House, Congressman Davis expressly stated that
committee powers were not increased, that no added burden was placed upon the witness, and
that a "mere substitution" of a judicial proceeding for punishment at the bar of Congress was
intended. [Footnote 40] The reason for enacting § 192 went to the punishment, and not the
offense. It was recognized that the power of Congress to deal with a contemnor by its own
processes did not extend beyond the life of any session. [Footnote 41] By making contempt
of Congress a crime, a fixed term of imprisonment was substituted for variable periods of
congressional custody dependent upon the fortuity of whether the contemnor had been called
to testify near the beginning or the end of a session. [Footnote 42] But there is nothing to
indicate that this change in the mode of punishment affected in any way the well established
elements of contempt of Congress. Since the enactment of § 192, the practice of specifically
directing a recalcitrant witness to answer has continued to prevail. [Footnote 43] In fact, the
very committee involved here, the

Page 349 U. S. 170

House Un-American Activities Committee, originally followed this practice, [Footnote 44]
and recently resumed it. [Footnote 45]

Giving a witness a fair apprisal of the committee's ruling on an objection recognizes the
legitimate interests of both the witness and the committee. Just as the witness need not use
any particular form of words to present his objection, so also the committee is not required to

75 | P a g e
resort to any fixed verbal formula to indicate its disposition of the objection. So long as the
witness is not forced to guess the committee's ruling, he has no cause to complain. And
adherence to this traditional practice can neither inflict hardship upon the committee nor
abridge the proper scope of legislative investigation.

III

Petitioner also attacks his conviction on grounds involving novel constitutional issues. He
contends that the House Resolution authorizing the committee's operations is invalid under
the First Amendment. In addition, petitioner contends that the trial court erred in denying a
hearing on the alleged bias of the indicting grand jury. Our disposition of the case makes it
unnecessary to pass on these issues.

The judgment below is reversed, and the case remanded to the District Court with directions
to enter a judgment of acquittal.

Reversed.

Page 349 U. S. 171

[Footnote 1]

The section provides in full:

"Every person who having been summoned as a witness by the authority of either House of
Congress to give testimony or to produce papers upon any matter under inquiry before either
House, or any joint committee established by a joint or concurrent resolution of the two
Houses of Congress, or any committee of either House of Congress, willfully makes default,
or who, having appeared, refuses to answer any question pertinent to the question under
inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than
$1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor
more than twelve months."

[Footnote 2]

91 U.S.App.D.C. 344, 203 F.2d 20.

[Footnote 3]

347 U.S. 1008.

[Footnote 4]

Hearings before House Committee on Un-American Activities Regarding Communist

Infiltration of Labor Unions, 81st Cong., 1st Sess. Part 1, 541-542.

[Footnote 5]

Id. at 602, 604.

76 | P a g e
[Footnote 6]

Id. at 608.

[Footnote 7]

Id. at 609.

[Footnote 8]

Id. at 634-635:

"Mr. QUINN. I would like to make a statement along the lines that Mr. Fitzpatrick made
yesterday in regard to a question of that nature. I feel that the political beliefs, opinions, and
associations of the American people can be held secret if they so desire."

"Mr. WOOD. And, for those reasons, do you decline to answer that question?"

"Mr. QUINN. I didn't say I was declining to answer the question. Before I do answer the
question, I should like to say that I support the position taken by Brother Fitzpatrick
yesterday."

"Mr. WOOD. Did you hear his statement yesterday?"

"Mr. QUINN. Yes; I did."

"Mr. WOOD. Do you support it in its entirety?"

"Mr. QUINN. In its entirety."

"Mr. WOOD. Is there anything else you want to add to it?"

"Mr. QUINN. No, I don't."

"Mr. WOOD. Will you accept it as the expression of your views, then?"

"Mr. QUINN. You may. I may add I feel I have no other choice in this matter, because the
defense of the Constitution I hold sacred. I don't feel I am hiding behind the Constitution, but
in this case I am standing before it, defending it, as small as I am."

"Mr. WOOD. Having made that statement and subscribed to the sentiments expressed by the
witness yesterday to whom you referred, will you now answer the question whether you are
now or have ever been a member of the Communist Party?"

"Mr. QUINN. I hold that the Constitution holds sacred the rights of people --"

"Mr. WOOD. You have stated your position. Having enunciated your sentiments and your
position, will you now answer the question whether you are now or ever have been a member
of the Communist Party, or do you decline to answer?"

77 | P a g e
"Mr. QUINN. I decline to discuss with the committee questions of that nature."

"Mr. WOOD. Proceed, Mr. Tavenner."

"Mr. TAVENNER. I believe, in the light of that answer, it is not necessary to ask you any
further questions relating to those matters, so I will ask you this: do you know Mr. James J.
Matles?"

"Mr. QUINN. Yes."

[Footnote 9]

Petitioner's motions to dismiss the indictment were denied sub nom. United States v.
Emspak, 95 F.Supp. 1010, 1012.

[Footnote 10]

United States v. Fitzpatrick, 96 F.Supp. 491, 493.

[Footnote 11]

United States v. Panzino, unreported, Criminal No. 1747-50 (D.D.C.).

[Footnote 12]

United States v. Quinn, unreported, Criminal No. 1744-50 (D.D.C.).

[Footnote 13]

91 U.S.App.D.C. 344, 347, 203 F.2d 20, 23.

[Footnote 14]

Id., 91 U.S.App.D.C. at 347, 203 F.2d at 23.

[Footnote 15]

Id., 91 U.S.App.D.C. at 348, 203 F.2d at 24.

[Footnote 16]

Ibid.

[Footnote 17]

Id., 91 U.S.App.D.C. at 349, 203 F.2d at 25.

[Footnote 18]

Ibid.

78 | P a g e
[Footnote 19]

Cf. 19 U. S. Dunn, 6 Wheat. 204.

[Footnote 20]

In re Chapman, 166 U. S. 661.

[Footnote 21]

See McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 175.

[Footnote 22]

Id. at 273 U. S. 173-174; Kilbourn v. Thompson, 103 U. S. 168, 103 U. S. 190.

[Footnote 23]

Compare United States v. Rumely, 345 U. S. 41, 345 U. S. 46.

[Footnote 24]

Kilbourn v. Thompson, 103 U. S. 168, 103 U. S. 192-193.

[Footnote 25]

The Amendment provides in pertinent part that "No person . . . shall be compelled in any
criminal case to be a witness against himself. . . ."

[Footnote 26]

See Griswold, The Fifth Amendment Today, 2-7.

[Footnote 27]

Twining v. State of New Jersey, 211 U. S. 78, 211 U. S. 91. See also Boyd v. United
States, 116 U. S. 616, 116 U. S. 631-632.

[Footnote 28]

Hoffman v. United States, 341 U. S. 479, 341 U. S. 486. Cf. Counselman v. Hitchcock, 142 U.
S. 547, 142 U. S. 562.

[Footnote 29]

Blau v. United States, 340 U. S. 159, specifically holding that such a question is protected by
the privilege; Brunner v. United States, 343 U.S. 918, reversing 190 F.2d 167. See also
Hoffman v. United States, 341 U. S. 479.

[Footnote 30]

79 | P a g e
Compare Smith v. United States, 337 U. S. 137, where the Court characterized a witness'
statement "I want to claim privilege as to anything that I say", 337 U.S. at 337 U. S. 142, as a
"definite claim of general privilege against self-incrimination." 337 U.S. at 337 U. S. 151.

[Footnote 31]

As to the close relationship between the First Amendment and the privilege against self-
incrimination, see Griswold, supra,note 26 at 8-9

[Footnote 32]

Brief for United States, p. 33. The Government makes the same contention as to the petitioner
in Emspak v. United States,349 U. S. 190.

[Footnote 33]

Sinclair v. United States, 279 U. S. 263, 279 U. S. 299. See also In re Chapman, 166 U. S.
661, 166 U. S. 672, in which the Court, while upholding the constitutionality of the statute,
recognized deliberateness as an element of the offense.

[Footnote 34]

See United States v. Kamp, 102 F.Supp. 757, 759:

"Committees of Congress must conduct examinations in such a manner that it is clear to the
witness that the Committee recognizes him as being in default, and anything short of a clear
cut default on the part of the witness will not sustain a conviction for contempt of Congress.
The transcript of the defendant Kamp's testimony fails to disclose such a clear cut default.
The witness is not required to enter into a guessing game when called upon to appear before a
committee. The burden is upon the presiding member to make clear the directions of the
committee, to consider any reasonable explanations given by the witness, and then to rule on
the witness' response."

The defendant was accordingly acquitted.

On similar grounds, an acquittal was directed in United States v. Browder, unreported,

Criminal No. 1784-50 (D.D.C.).

[Footnote 35]

See note 8 supra.

[Footnote 36]

While of course not binding on Congress or its committees, the practice in the States and
other English-speaking jurisdictions is at least worthy of note.

For examples relating to recalcitrant witnesses before state legislative committees, see Ex
parte McCarthy, 29 Cal. 395, 398; People v. Keeler, 99 N.Y. 463, 471, 2 N.E. 615,
617; Lowe v. Summers, 69 Mo.App. 637, 645.

80 | P a g e
Recalcitrant witnesses before investigating committees of the British House of Commons
have traditionally been apprised of the disposition of their objections and given subsequent
opportunity to respond before being subjected to the contempt power of the legislature. The
practice has been as follows: the committee reports the failure to answer to the House. The
witness is questioned about the cause of the refusal to answer before the Bar of the House.
The House then votes on the validity of the objection. If the claim is rejected, the witness is
specifically directed to answer. Only after a subsequent refusal is punishment
imposed. See 88 Journals of the House of Commons 212, 218 (Case of Elizabeth Robinson
before Select Committee on Liverpool Bribery, 1833); 90 Journals of the House of
Commons 501, 504, and 29 Hans.Deb., 3d Ser. 1249, 1279-1288 (Case of William Prentice
before Select Committee on Great Yarmouth Bribery, 1835); 90 Journals of the House of
Commons 564, 571, 575 (Case of Lieutenant Colonel Fairman before Select Committee on
the Orange Lodges, 1835); 152 Journals of the House of Commons 661, 365 (Case of John
Kirkwood before Select Committee on Money Lending, 1897).

For Canadian practice, see the case of W. T. R. Preston before the Committee on Public
Accounts, the Committee on Agriculture and Colonization, and the House of Commons.
41 Journals of the House of Commons, Canada, 298, 316, 323; 41 id., Appendix No. 2, 324-
327; 41 id., Appendix No. 3, 250-251; 76 Debates, House of Commons, Canada, Session
1906, Vol. III, 4451-4535.

[Footnote 37]

See Hoffman v. United States, 341 U. S. 479, 341 U. S. 486:

"It is for the court to say whether his silence is justified . . . and to require him to answer if 'it
clearly appears to the court that he is mistaken.'"

See also Chief Justice Marshall in United States v. Burr, 25 Fed.Cas. 38, at 40, No. 14,692e:

"When a question is propounded, it belongs to the court to consider and to decide whether
any direct answer to it can implicate the witness."

The cases, both federal and state, are collected in Wigmore, Evidence, § 2271. See, e.g.,
Carlson v. United States, 209 F.2d 209, 214, and Gendron v. Burnham, 146 Me. 387, 405-
406, 82 A.2d 773, 784-785.

[Footnote 38]

See, e.g., the resolution introduced by Congressman Orr proposing that one J. W. Simonton
be haled before the bar of the House of Representatives for refusing to answer a question put
to him by a duly authorized committee of that body. Cong.Globe, 34th Cong., 3d Sess. 403-
404 (1857). The resolution states in part:

"The committee were impressed with the materiality of the testimony withheld by the
witness, as it embraced the letter and spirit of the inquiry directed by the House to be made,
but were anxious to avoid any controversy with the witness. They consequently waived the
interrogatory that day, to give the witness time for reflection on the consequences of his
refusal, and to afford him an opportunity to look into the law and the practice of the House in
such cases, notifying him that he would, on some subsequent day, be recalled. This was the

81 | P a g e
15th of January instant. On Tuesday, the 20th instant, the said J. W. Simonton was recalled,
and the identical question first referred to was again propounded, after due notice to him that,
if he declined, the committee would feel constrained to report his declination to the House
and ask that body to enforce all its powers in the premises to compel a full and complete
response."

Id. at 403. See also id., 31st Cong., 1st Sess. 1716 (1850).

[Footnote 39]

Act of Jan. 24, 1857, c. 19, § 1, 11 Stat. 155.

[Footnote 40]

Cong.Globe, 34th Cong., 3d Sess. 427.

[Footnote 41]

Anderson v. Dunn, 6 Wheat. 204, 19 U. S. 230-231.

[Footnote 42]

[Footnote 43]

[Footnote 44]

See, e.g., the contempt citation of George Powers at 86 Cong.Rec. 3856-3857. See also the
citation of James H. Dolsen, id. at 3694-3695.

[Footnote 45]

See contempt citation of Saul Grossman, 98 Cong.Rec. 8634-8637.

MR. JUSTICE HARLAN, concurring.

I agree with the result reached by the Court in this case. But I must dissent from the holding
made in 349 U. S. The reasons for my position are stated in Part II of my dissenting opinion
in the Emspak case, decided herewith, post, p. 349 U. S. 203, at p. 349 U. S. 213. I consider
those reasons equally applicable to what is shown by the record in this case.

MR. JUSTICE REED, dissenting. *

The Court in these two cases refuses to punish petitioners, witnesses before the Committee on
Un-American Activities of the House of Representatives, for refusal to answer certain
pertinent questions. Such refusal is declared to be a misdemeanor by 2 U.S.C. § 192.

The separate opinions are based on the conclusion that the petitioners each properly claimed
for himself the privilege against self-incrimination guaranteed by the Fifth Amendment. The
Court holds that questions concerning association with known communists or membership in
the Party asked witnesses holding prominent positions in a local union, under investigation

82 | P a g e
for communist infiltration directed at national security, might reasonably be feared as
incriminatory by the witnesses. [Footnote 2/1] For these cases, I make that assumption, too.
In both the cases, the Court directs remand to the trial court with directions to acquit. This
disposition of the charges excludes any factual issues for decision by the trial court as to
whether the witnesses did or did not claim their

Page 349 U. S. 172

privilege. It decides that, as a matter of law, the petitioners claimed their privilege by the
words used by them in answer to the questions propounded by the Committee. Since the
indictments contained numerous counts covering many questions asked and the evidence
showed varying reasons for not answering, the conclusion that privilege was claimed blankets
all questions. Since the sentences were less than the maximum penalty for one count, if the
Court's determination is wrong as to any one question, its present judgments are wrong.
[Footnote 2/2] Normally the issue as to whether a claim of privilege was made would be a
matter of fact for the trial court if reasonable men might reach either conclusion. See the
discussion below in the opinion of Judge Prettyman in Quinn v. United States, 91
U.S.App.D.C. 344, 203 F.2d 20, 24, and of Judge Bazelon at 26 and 38. None of the judges
of the Court of Appeals suggested approval of such action as this Court now takes in
directing acquittal. See also Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54,
dissent 60. This Court at least should have followed that course here.

These sweeping decisions affect the conduct of all congressional inquiries and all courts, for
from the opinions there emerges a legally enforceable rule for handling hearings or
prosecutions when questions raise for the witness a problem of self-incrimination. The
Court, Quinn opinion, p. 349 U. S. 164, requires the interrogator, once the witness' claim,
though "vague . . . , is sufficiently definite to apprise the committee of his intention," to claim
his privilege, "either to accept the claim or to ask petitioner whether he was in fact invoking
the privilege." Although this phrasing, particularly the last clause, carries for me probabilities
of uncertainties in future applications that former decisions

Page 349 U. S. 173

avoided, [Footnote 2/3] it is accepted for this case as the governing rule. My conclusion is
that neither petitioner here apprised the Committee that he was claiming his privilege. As
shown by the cases just cited, the privilege is personal to the witness. The reach of questions
into matters that might lead to his prosecution for crime may be known only to him.
Therefore, the witness has the burden of doing something more than suggesting a question
might incriminate him. At least, in the words of the Court, he must "apprise the committee of
his intention" to claim his privilege.

The purpose of having witnesses is to furnish to proper interrogators, subject to objections for
materiality or the use of coercion, the actual facts they seek. Legislation can best be drafted
and cases tried most fairly only when all pertinent facts are made available to those charged
with legislation or maintenance of the peace. However, the Congress, in the first series of
Amendments to the Constitution, wrote an exception to this duty in the instance where an
answer would compel a person to be a witness against himself in a criminal case. In that
situation, on a valid claim of privilege against self-incrimination, the witness may be excused
from answering. [Footnote 2/4] That exception should neither be shriveled nor bloated. It is
designed to excuse the guilty and the innocent alike from testifying when prosecution may

83 | P a g e
reasonably be feared from compelled disclosures. The importance of preserving the right to
require evidence, except when a witness definitely apprises the interrogating body of a valid
claim of privilege, leads us to dissent.

Page 349 U. S. 174

. CLAIM OF PRIVILEGE

The Court finds from the record before the Committee an apprisal by petitioners which the
Committee should have understood as a claim of privilege against self-incrimination. In
examining the record for this purpose, all the pertinent testimony must be considered and
evaluated in the light of the purpose and abilities of the petitioners.

During an active period of national rearmament, this Committee was investigating subversive
and security situations in the sensitive electronic industry with a view to possible legislation.
[Footnote 2/5] The recalcitrant witnesses held important positions in the field. Mr. Quinn was
a field organizer of the International Union of the United Electrical, Radio, and Machine
Workers. Mr. Emspak was its General Secretary. The third witness, who is not a petitioner
but whose testimony is hereafter referred to, was Mr. Fitzpatrick, chief steward of the
Westinghouse Corporation local. There is nothing to indicate that the witnesses had
mentalities of a quality less than one would expect from experienced officials holding such
responsible positions.

It will be observed from their testimony, however, that, in avoiding direct answers to specific
questions, each one engaged in exercises in dialectics that always fell short of advising the
Committee of any intention to claim his privilege. In view of the ease with which a claim can
be made by any layman, the availability of personal lawyers for these witnesses, and the
careful avoidance of any such statement as, "I decline to answer on the ground of possible
self-incrimination," I cannot hold that these

Page 349 U. S. 175

witnesses evidenced by their testimony an intention to claim privilege. The fact that a claim
of privilege would subject the witnesses to criticism in some quarters, of course, has no
bearing upon the necessity to assert one's rights. This is emphasized by the fact that, long ago,
this Court declared that no moral turpitude is involved in refusing to answer under the
protection of the privilege. [Footnote 2/6]

While the trial and appellate courts each had only a printed record of the testimony, one
group, the subcommittees themselves, had the best opportunity to appraise disinterestedly the
fact of whether Messrs. Quinn and Emspak claimed the privilege. The questions and answers
were both asked by the counsel and answered by the witnesses in the hearing of the
Committee. In citations of Quinn and Emspak to the House for contempt, the Committee
certified that the refusal of each "to answer the aforesaid questions deprived your committee
of necessary and pertinent testimony. . . ." [Footnote 2/7] It can hardly be contended that the
Committee did not know a claim of privilege against answering incriminating questions
would have excused the witnesses from answering.

84 | P a g e
In view of the basis of the Court's decision made on its own examination and appraisal of the
record, we must necessarily set out for discussion much of the testimony to determine
whether the witnesses claimed the privilege. [Footnote 2/8] The pertinent evidence follows.

After testifying at some length, the petitioner was asked: "Mr. Emspak, are you acquainted
with Joseph

Page 349 U. S. 176

Persily?" Petitioner did not answer the question, but made the following statement:

"Mr. Emspak. Mr. Chairman, I would like to say something at this point."

"Mr. Moulder. You mean in response to the question?"

"Mr. Emspak. I will answer the question; yes, in response to the question and as a statement
of position."

"What I say revolves around two points, one organizationally and another as an individual.
Organizationally, my job as an officer of this union is to represent the interest of the
membership as they determine it at the annual conventions and at other means they have of
getting together and expressing themselves. My job is to administer that aspect to the best of
my ability, using one very simple measuring stick, and that is: does a given policy or action
contribute to the wellbeing of the membership, individually and collectively?"

"As an individual, I would like to say one thing, and that is this: the line of questioning that
counsel is developing now is a line that has been used on numerous occasions by this
committee and other congressional committees in an attempt to harass the union, its
leadership, and its members. It is a line of questioning that goes against my grain as an
American. I was born in this country. Everything I am --"

"Mr. Moulder. How long will this statement take, Mr. Emspak?"

"Mr. Emspak. About two or three more minutes."

"Mr. Moulder. Proceed."

"Mr. Emspak. Everything I am, I owe to the rich heritage and tradition of this country. I do
not

Page 349 U. S. 177

believe that a committee of this kind, especially in view of the recent record of this
committee where it stooped to interfere in the partisan affairs of a local union, or any
congressional committee, because of the rich tradition of this country which, if not perverted,
will lead to a greater and better country -- I don't think a committee like this or any
subcommittee has a right to go into any question of my beliefs, my associations, or anything
else. I have a couple of kids. They have a stake in this country, too."

85 | P a g e
"Mr. Moulder. I want to give you full opportunity to express yourself in answer to the
question, but you are making an oration now."

"Mr. Emspak. It is not an oration. It happens to be a very profound personal feeling."

"Mr. Moulder. What is the question?"

"Mr. Tavenner. The question is: are you acquainted with Joseph Persily."

"Mr. Moulder. How do you spell that?"

"Mr. Tavenner. P-e-r-s-i-l-y."

"Mr. Emspak. Because I have a stake in this country --"

"Mr. Moulder. You are not answering the question. He asked you if you are acquainted with
this man."

"Mr. Emspak. I will answer it."

"Mr. Moulder. Are you or not?"

"Mr. Emspak. I was on the verge of answering it."

"Mr. Moulder. If you have any explanation to make, you will be permitted to do so after you
answer the question."

"Mr. Emspak. Because of my interest in what is going on these days, because of the activities
of this committee --"

"Mr. Moulder. Are you going to answer the question? "

Page 349 U. S. 178

"Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights
guaranteed under the Constitution, primarily the First Amendment, supplemented by the
Fifth. This committee will corrupt those rights."

"Mr. Moulder. Do you think it corrupts you to answer the question?"

"Mr. Emspak. I certainly do."

"Mr. Moulder. Why does it corrupt you?"

"Mr. Emspak. Your activities are designed to harm the working people of this country. Every
action this committee has ever taken has done that. You interfered last summer in the election
of a local union at the request of a priest. You know that. You dragged down the prestige of
this country."

"Mr. Moulder. You are not going to take over this committee."

86 | P a g e
"Mr. Emspak. I don't want to."

"Mr. Moulder. And your statements are preposterous. The purpose of this committee is to
expose communism as it exists in this country. What is the question?"

"Mr. Tavenner. Are you acquainted with Joseph Persily?"

"Mr. Emspak. For the reasons I stated before, I answered it."

"Mr. Moulder. Then you refuse to answer the question?"

"Mr. Emspak. No. I answered it."

"Mr. Tavenner. Are you or are you not acquainted with Joseph Persily?"

"Mr. Emspak. I answered the question."

"Mr. Tavenner. Your replies are a refusal to comply with the request to answer it?"

"(Witness confers with his counsel.) "

Page 349 U. S. 179

"Mr. Moulder. The record will reveal that you have not answered the question."

"Mr. Emspak. I have answered it to the best of my ability under the circumstances."

In answer to subsequent questions, the petitioner simply referred to his prior answer. Later
on, the following statements were made:

"Mr. Emspak. Mr. Chairman, on these questions, which are all essentially the same, of
course, when this hearing was announced, according to the press reports, at least, it was
announced because this committee presumably was interested in finding out things with
reference to individuals in our organization by using whatever means it has at its disposal,
and for the purpose of trying to perhaps frame people for possible criminal prosecution."

"I don't see how or why any individual should be subjected to that kind of questioning here if
he is going to maintain, you know, his feelings on these questions, and I tried to express the
feeling before when you interrupted me. I just don't intend, as I said then, to be a party to any
kangaroo court proceedings of this committee or any other congressional committee. I think I
have the right to reserve whatever rights I have in that respect to whatever appropriate bodies
may be set up to deal with questions that come up."

"Mr. Moulder. Do you mean to say you have people in your organization who have
information that would subject you to criminal prosecution?"

"Mr. Emspak. No; I don't, Mr. Chairman. As a basic proposition -- and it has worked over the
years and over the last few months as far as this committee is concerned -- a slick job -- "

Page 349 U. S. 180

87 | P a g e
"Mr. Moulder. Do you know them, or not?"

"Mr. Emspak. That does not concern this committee at all."

"Mr. Moulder. Is it your feeling that to reveal your knowledge of them would subject you to
criminal prosecution?"

"Mr. Emspak. No. I don't think this committee has a right to pry into my associations. That is
my own position."

No more of the record is printed, as the excerpt shows the exchange between the Committee
and petitioner upon which Count I of the indictment and the constitutional issues arising
thereunder are based. This related to his acquaintanceship with Joseph Persily, a man who
had been listed, according to a stipulation, as a person named as an official "of the
UERMWA with Communist or Communist Front Affiliations." Nothing more favorable to
petitioner's position appears on the questions examined or any other question.

As the Emspak case offers for me a clear example of failure to claim his privilege, I think it
better not to encumber this opinion unnecessarily with quotations from the Quinn case.

In the Quinn case, the witness adopted in its entirety the testimony of a former witness, Mr.
Thomas J. Fitzpatrick, chief steward of Local No. 601, United Electrical, Radio and Machine
Workers of America. Mr. Quinn's testimony establishing his reliance on Mr. Fitzpatrick's
evidence will be found in this Court's opinion in the Quinn case, supra, note 8 ante, p. 158.
The hearing opened with a declaration by Mr. Fitzpatrick of minority rights to secrecy as
follows:

"The Constitution of this country provides certain protection for minorities and gives the
privilege for people to speak and think as they feel that they

Page 349 U. S. 181

should and want to. It also gives the privilege that people can have opinions or beliefs that
may be unpopular. In my opinion, it gives them the right to hold those opinions secret if they
so desire. This is a protection of the First Amendment to the Constitution, supplemented by
the Fifth Amendment."

"Mr. Wood. What is?"

"Mr. Fitzpatrick. The right of the people guaranteed by the Constitution."

This certainly indicated no claim of the privilege against self-incrimination. Mr. Fitzpatrick
was then asked: "Are you now or have you ever been a member of the Communist Party?"
After fencing with the Committee about prying into his mind, he said:

"Mr. Fitzpatrick. I will answer the question. The Constitution guarantees the right to me and
every other citizen to have beliefs, whether they are popular or unpopular, and to keep them
to themselves if they see fit, and I have no intention of being a party to weakening or
destroying that protection in the Constitution. I feel when I take this position that I am one of
the real Americans, and not like some of the phonies who appear here."

88 | P a g e
Later on, he was asked whether he had asked a Mr. Copeland to sign an application for
membership in a Communist organization. In answer to that question, this occurred.

"Mr. Fitzpatrick. Mr. Chairman, do I have to give you my answer again?"

"Mr. Wood. I just want to know whether you did that one thing."

"Mr. Fitzpatrick. I say if I did or if I did not, regardless of what I did, it is not the affair of this
committee to pry into this kind of action. "

Page 349 U. S. 182

"Mr. Wood. And, for that reason, do you decline to answer the question?"

"Mr. Fitzpatrick. I stand on the protection of the Constitution, the First and Fifth
Amendments."

"Mr. Wood. And, for those reasons, decline to answer the question further?"

"Mr. Fitzpatrick. I have answered the question."

"Mr. Wood. I say, do you decline to answer it further?"

"Mr. Fitzpatrick. I have no further comment on it."

The two references to the First and Fifth Amendments are the only phrases in the whole
examination that could be thought to refer to a claim of immunity against self-incrimination.

From these vague statements of Messrs. Quinn and Emspak, the Court draws the conclusion
that they were sufficient to apprise the Committee of the witnesses' intention to claim the
privilege against self-incrimination. The Court finds support for its theory of "intention" to
claim privilege from a statement in the Government's brief in the Quinn case set out below.
[Footnote 2/9] With all respect,

Page 349 U. S. 183

I fail to see any concession by the Government of evidence that should apprise the
Committee of a claim of privilege against self-incrimination. The first sentence of the
quotation from the brief emphatically denies the Court's assumption.

What the records show to me is a calculated effort by Messrs. Quinn, Emspak and Fitzpatrick
to hinder and delay a congressional committee in its effort to bring out facts in order to
determine whether or not to undertake legislation. Such quibbling evades the basis for an
understanding of the attitude of the witness as to privilege. It does not apprise the Committee
of the claim of privilege, and should not be held permissible. Factual testimony is the means
for the ascertainment of truth in legally organized inquiries. Silence brings the proceedings to
a dead end. The burden is on the witness to advise his interrogators of a claim to privilege in
understandable terms. [Footnote 2/10] In the context of this testimony, the adoption by Mr.
Quinn of Mr. Fitzpatrick's reference to the First and Fifth Amendments smacks strongly of a
"due process" Fifth Amendment claim. Mr. Fitzpatrick had been speaking of his right of

89 | P a g e
privacy, speech and association, not of the privilege against self-incrimination. He then
added:

"Mr. Chairman, if you want to ask me questions about my actions of loyalty, question my
loyalty, you have a right to do so, and I will answer them. So far as my political opinions, I
have stated my position on that. You are asking the same question in a different way. But, if
my memory is right, there was no such thing as a Communist Party when that affidavit is
supposed to have been. "

Page 349 U. S. 184

The same attitude shows through Mr. Emspak's testimony. In addition, there was a direct
refusal by Mr. Emspak to claim privilege. See pp. 349 U. S. 179-180, supra.

The Court suggests that this should not be construed as a waiver of the claim, and cites Smith
v. United States, 337 U. S. 137, 337 U. S. 151. I do not think the Smith case apposite. In that
case, there had been a clear claim of privilege for immunity. We held that required a definite,
unambiguous waiver. Here, there was, in my view, no claim of privilege.

The opinion of the trial court, printed only in the record, pp. 224-227, holds "The defendant
failed to assert [the privilege]." Six of the nine members of the Court of Appeals held
that Emspak had not claimed. Three did not reach that issue.

I concur with the Court in its assertions of the value of the self-incrimination clause -- that it
may be used as a shield by guilty and innocent alike -- and that it should be construed
liberally, as it has been, to cover more than the literal reading of the phrase "No person . . .
shall be compelled in any criminal case to be a witness against himself" would suggest.
[Footnote 2/11] This sympathetic attitude toward the clause should not lead us to intrude our
ideas of propriety into the conduct of congressional hearings.

Page 349 U. S. 185

The rule laid down by the Court today merely adds another means for interference and delay
in investigations and trials, without adding to the protection of the constitutional right of
freedom from self-incrimination. This is contrary to the policy of Congress to get information
from witnesses even with a claim of immunity, through the Compulsory Testimony Act of
August 20, 1954, 68 Stat. 745 and note preceding § 3481.

II

. DIRECTION TO ANSWER

The Court advances a second ground in the Quinn and Emspak cases for its direction that the
District Court enter a judgment of acquittal. This is that a deliberate intent to refuse to answer
the Committee's questions is required for the judgment of contempt. The Court
explains, Quinn case, p. 349 U. S. 166, that intent may be implied only when the witness is
"clearly apprised that the Committee demands his answer notwithstanding his objections,"
and, Emspak case, p. 349 U. S. 202, "without such apprisal, there is lacking the element of
deliberateness necessary for a conviction under § 192 for a refusal to answer." The Court

90 | P a g e
concludes that the witness was not "specifically" directed to answer, or otherwise informed as
to the disposition of his objections.

The Court must admit, as it does, Quinn opinion, p. 349 U. S. 162, that no particular form of
words is required. On the other hand, I must admit that a witness must be clearly apprised
that his claim of the freedom from an obligation to answer is not accepted by the interrogator.
[Footnote 2/12] I agree that the offense punishable under the statute is a deliberate,
intentional refusal -- not an inadvertence, accident or

Page 349 U. S. 186

misunderstanding. [Footnote 2/13] Good faith in refusing to answer, however, is no defense

so long as the refusal is intentional, deliberate. Sinclair v. United States, 279 U. S. 263, 279
U. S. 299, points out that:

"The gist of the offense is refusal to answer pertinent questions. . . . Intentional violation is
sufficient to constitute guilt."

United States v. Murdock, 284 U. S. 141, involved a statute very similar to the one here
involved. In that case, Murdock had been called to testify before an Internal Revenue Agent,
and refused to answer certain questions on the ground that he might be incriminated under
state law. We said in that case:

"While undoubtedly the right of a witness to refuse to answer lest he incriminate himself may
be tested in proceedings to compel answer, there is no support for the contention that there
must be such a determination of that question before prosecution for the willful failure so
denounced. By the very terms of the definition, the offense is complete at the time of such
failure."

284 U.S. at 284 U. S. 148.

There was no direction to answer in either case. While the point was not raised, their holding
as to what establishes the offense does not include a specific direction to answer as one of the
elements.

While the Court held in Sinclair that deliberate refusal was all that was required to
consummate the offense under 2 U.S.C. § 192, at the same time we were at pains to point out
"There was no misapprehension" on the part of the witness "as to what was called for." 279
U.S. at 279 U. S. 299. It is because the refusal must be intentional that the witness

Page 349 U. S. 187

must know that his excuses for not answering have not been accepted by the Committee.
When a witness interposes objections to testifying which are not frivolous, it is difficult to
say he intentionally refused to answer when the interrogation continues without pause to
some other question. I agree that the Committee cannot, in fairness to the witness, lull him
into thinking that his refusal to answer is acceptable and then cite him for contempt. Refusal
under such circumstances would not be deliberate. However, specific direction to answer is
not necessary; only intentional refusal is.

91 | P a g e
The Court suggests, note 36 Quinn case, that congressional committees follow the practice of
other legislative bodies and determine first the validity of the witness' reason for failure to
answer and then direct him to answer. The defect in that analogy is that the Court seems to
assume in its note a formal vote and a specific direction to answer. I think such a specific
direction is inconsistent with its page 349 U. S. 170 admission that no ritualistic formula is
required. No provision of the statute, nor of any rule of Congress, is cited by the Court to
support a requirement of specific direction. The Court of Appeals held direction to answer
unnecessary so long as the witness knew that the Committee had not acceded to his refusal.
[Footnote 2/14] As I stated above, in my view, it is sufficient if the witness knows his
excuses are not acceptable to the Committee and that he is required to answer. Whether or not
the witnesses knew this in these two cases is the question on this second point.

The Court holds that the witnesses did plead the privilege, and were not advised that the
Committee refused to accept their pleas. I disagree. After Mr. Quinn had adopted Mr.
Fitzpatrick's words as his own method of

Page 349 U. S. 188

refusing to answer the question as heretofore discussed, it will be seen that Mr. Wood, a
Committee member, said to Mr. Quinn:

"Mr. Wood. You have stated your position. Having enunciated your sentiments and your
position, will you now answer the question whether you are now or ever have been a member
of the Communist Party, or do you decline to answer?"

"Mr. Quinn. I decline to discuss with the committee questions of that nature."

This, I think advised Mr. Quinn that the Committee refused to accept his reply as a
satisfactory excuse, and required him to proceed.

I think, too, that Mr. Emspak was advised his answer was not accepted, and that he was
required to proceed. When he was asked repeatedly as to whether he was acquainted with
Joseph Persily, he said again:

"Mr. Emspak. For the reasons I stated before, I answered it."

"Mr. Moulder. Then you refuse to answer the question?"

"Mr. Emspak. No. I answered it."

"Mr. Tavenner. Are you or are you not acquainted with Joseph Persily?"

"Mr. Emspak. I answered the question."

"Mr. Tavenner. Your replies are a refusal to comply with the request to answer it?"

"(Witness confers with his counsel.)"

"Mr. Moulder. The record will reveal that you have not answered the question."

92 | P a g e
"Mr. Emspak. I have answered it to the best of my ability under the circumstances."

On continued questioning as to Mr. Persily, he continued, "I will give the same answer." I
cannot but conclude, as did the lower courts, that the witness Emspak was adequately

Page 349 U. S. 189

informed that his objections were refused and that he must answer.

The Court directs acquittal of both petitioners on the grounds of claim of privilege and failure
to specifically overrule their objections or direct them to answer. I disagree with both
grounds. Confining expression of my views to those issues, I dissent.

MR. JUSTICE MINTON joins in so much of this opinion as applies to Emspak v. United
States.

* [This dissenting opinion applies also to Emspak v. United States, post, p. 349 U. S. 190.]

[Footnote 2/1]

Blau v. United States, 340 U. S. 159; Emspak v. United States, post, p. 349 U. S. 190, at
p. 349 U. S. 199; see the Court's opinion in Quinn v. United States, supra, at p. 349 U. S. 162.

[Footnote 2/2]

Sinclair v. United States, 279 U. S. 263, 279 U. S. 299(7).

[Footnote 2/3]

United States ex rel. Vajtauer v. Commissioner, 273 U. S. 103, 273 U. S. 113; United States
v. Monia, 317 U. S. 424, 317 U. S. 427, dissent 317 U. S. 439; Rogers v. United States, 340
U. S. 367, 340 U. S. 371; cf. Adams v. Maryland, 347 U. S. 179.

[Footnote 2/4]

See McCarthy v. Arndstein, 266 U. S. 34; Counselman v. Hitchcock, 142 U. S. 547.

[Footnote 2/5]

Hearings before House Committee on Un-American Activities Regarding Communist

Infiltration of Labor Unions, Part 1, 81st Cong., 1st Sess. 541.

[Footnote 2/6]

Sinclair v. United States, 279 U. S. 263, 279 U. S. 299.

[Footnote 2/7]

Proceedings against Julius Emspak, H.R.Rep.No.2847, 81st Cong., 2d Sess., p. 10; same
against Thomas Quinn, H.R.Rep.No.2857, p. 3.

93 | P a g e
[Footnote 2/8]

Any person who desires to see the complete essential testimony may consult the Proceedings,
cited in the preceding note. See also H.R.Rep.No.2856.

[Footnote 2/9]

"Under these circumstances, we contend that petitioner did not adequately inform the
Committee that he was claiming the protection of the privilege."

"Moreover, we feel bound to point out the probability that petitioner's ambiguous references
to the Fifth Amendment (and those of the petitioner Emspak in No. 9), which he now
contends constituted a claim of privilege, were phrased deliberately in such vague terms so as
to enable petitioner (and Emspak) to obtain the benefit of the privilege without incurring the
popular opprobrium which often attaches to its exercise. This suggestion is not based merely
upon the obvious fact that it would have been extremely easy for petitioner to have informed
the Committee that answers to its questions might incriminate or endanger him. It is also
based upon facts of record, and matters appropriate for judicial notice, which reveal that
petitioner (and Fitzpatrick and Emspak) had compelling and immediate reasons to refrain
from making any public statements from which it might be inferred, properly or not, that they
were Communists or Communist sympathizers."

Govt. br., 33-34.

[Footnote 2/10]

See note 3, supra.

[Footnote 2/11]

See, for example, Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 562; Blau v. United
States (two cases), 340 U. S. 159 and340 U. S. 340 U.S. 332 (privilege available at grand jury
proceedings); McCarthy v. Arndstein, 266 U. S. 34, 266 U. S. 40,

"The privilege is not ordinarily dependent upon the nature of the proceeding in which the
testimony is sought or is to be used. It applies alike to civil and criminal proceedings,
wherever the answer might tend to subject to criminal responsibility him who gives it. The
privilege protects a mere witness as fully as it does one who is also a party defendant"

(proceedings in bankruptcy); Brown v. Walker, 161 U. S. 591, and see also Graham v. United
States, 99 F.2d 746 (administrative proceedings); see also Wood v. United States, 75
U.S.App.D.C. 274, 128 F.2d 265 (preliminary hearings).

[Footnote 2/12]

Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d 97, 100; Bart v. United States, 91
U.S.App.D.C. 370, 203 F.2d 45, 48; Emspak v. United States, 91 U.S.App.D.C. 378, 203
F.2d 54, 56.

[Footnote 2/13]

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Townsend v. United States, 68 App.D.C. 223, 229, 95 F.2d 352, 358; Fields v. United
States, 82 U.S.App.D.C. 354, 357, 164 F.2d 97, 100.

[Footnote 2/14]

The instant case and the Emspak and Bart cases all deal at length with his question. Emspak
v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, 56; Bart v. United States, 91
U.S.App.D.C. 370, 203 F.2d 45, 50. See also comments, 40 Geo.L.J. 137; 41 Geo.L.J. 433.

95 | P a g e
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 170338 December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC
INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND
SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and
SUFFRAGE AND ELECTORAL REFORMS, respondents.

x----------------------x

G.R. No. 179275 December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY
THE SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.

x----------------------x

MAJ. LINDSAY REX SAGGE, petitioner-in-intervention

x----------------------x

AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G.

BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S.
MADRIGAL, and ANTONIO F. TRILLANES, respondents-intervenors

DECISION

NACHURA, J.:

More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly
between the President of the Philippines and a high-ranking official of the Commission on
Elections (COMELEC) surfaced. They captured unprecedented public attention and thrust the
country into a controversy that placed the legitimacy of the present administration on the line,
and resulted in the near-collapse of the Arroyo government. The tapes, notoriously referred to
as the "Hello Garci" tapes, allegedly contained the President’s instructions to COMELEC
Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential
elections. These recordings were to become the subject of heated legislative hearings
conducted separately by committees of both Houses of Congress.1

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader
Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a

96 | P a g e
congressional investigation jointly conducted by the Committees on Public Information,
Public Order and Safety, National Defense and Security, Information and Communications
Technology, and Suffrage and Electoral Reforms (respondent House Committees). During
the inquiry, several versions of the wiretapped conversation emerged. But on July 5, 2005,
National Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and
the lawyer of former NBI Deputy Director Samuel Ong submitted to the respondent House
Committees seven alleged "original" tape recordings of the supposed three-hour taped
conversation. After prolonged and impassioned debate by the committee members on the
admissibility and authenticity of the recordings, the tapes were eventually played in the
chambers of the House.2

On August 3, 2005, the respondent House Committees decided to suspend the hearings
indefinitely. Nevertheless, they decided to prepare committee reports based on the said
recordings and the testimonies of the resource persons.3

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this
Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order
and/or Writ of Preliminary Injunction4docketed as G.R. No. 170338. He prayed that the
respondent House Committees be restrained from using these tape recordings of the "illegally
obtained" wiretapped conversations in their committee reports and for any other purpose. He
further implored that the said recordings and any reference thereto be ordered stricken off the
records of the inquiry, and the respondent House Committees directed to desist from further
using the recordings in any of the House proceedings.5

Without reaching its denouement, the House discussion and debates on the "Garci tapes"
abruptly stopped.

After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue
with a privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator
Lacson promised to provide the public "the whole unvarnished truth – the what’s, when’s,
where’s, who’s and why’s" of the alleged wiretap, and sought an inquiry into the perceived
willingness of telecommunications providers to participate in nefarious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacson’s speech was referred to the Senate
Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had
previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping
equipment and to prohibit the Armed Forces of the Philippines (AFP) from performing
electoral duties.7

In the Senate’s plenary session the following day, a lengthy debate ensued when Senator
Richard Gordon aired his concern on the possible transgression of Republic Act (R.A.) No.
42008 if the body were to conduct a legislative inquiry on the matter. On August 28, 2007,
Senator Miriam Defensor-Santiago delivered a privilege speech, articulating her considered
view that the Constitution absolutely bans the use, possession, replay or communication of
the contents of the "Hello Garci" tapes. However, she recommended a legislative
investigation into the role of the Intelligence Service of the AFP (ISAFP), the Philippine
National Police or other government entities in the alleged illegal wiretapping of public
officials.9

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On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of
the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the
Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction,10 docketed
as G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative
inquiry. They argued in the main that the intended legislative inquiry violates R.A. No. 4200
and Section 3, Article III of the Constitution.11

As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on
the "Hello Garci" tapes on September 7,12 1713 and October 1,14 2007.

Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C.

Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S.
Madrigal and Antonio F. Trillanes filed their Comment16 on the petition on September 25,
2007.

The Court subsequently heard the case on oral argument.17

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the
resource persons summoned by the Senate to appear and testify at its hearings, moved to
intervene as petitioner in G.R. No. 179275.18

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275.19

It may be noted that while both petitions involve the "Hello Garci" recordings, they have
different objectives–the first is poised at preventing the playing of the tapes in the House and
their subsequent inclusion in the committee reports, and the second seeks to prohibit and stop
the conduct of the Senate inquiry on the wiretapped conversation.

The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No.
179275.

-I-

Before delving into the merits of the case, the Court shall first resolve the issue on the parties’
standing, argued at length in their pleadings.

In Tolentino v. COMELEC,20 we explained that "‘[l]egal standing’ or locus standi refers to a

personal and substantial interest in a case such that the party has sustained or will sustain
direct injury because of the challenged governmental act x x x," thus,

generally, a party will be allowed to litigate only when (1) he can show that he has
personally suffered some actual or threatened injury because of the allegedly illegal
conduct of the government; (2) the injury is fairly traceable to the challenged action;
and (3) the injury is likely to be redressed by a favorable action.21

The gist of the question of standing is whether a party has "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."22

98 | P a g e
However, considering that locus standi is a mere procedural technicality, the Court, in recent
cases, has relaxed the stringent direct injury test. David v. Macapagal-Arroyo23 articulates
that a "liberal policy has been observed, allowing ordinary citizens, members of Congress,
and civic organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings."24 The fairly recent Chavez v. Gonzales25 even permitted a non-
member of the broadcast media, who failed to allege a personal stake in the outcome of the
controversy, to challenge the acts of the Secretary of Justice and the National
Telecommunications Commission. The majority, in the said case, echoed the current policy
that "this Court has repeatedly and consistently refused to wield procedural barriers as
impediments to its addressing and resolving serious legal questions that greatly impact on
public interest, in keeping with the Court’s duty under the 1987 Constitution to determine
whether or not other branches of government have kept themselves within the limits of the
Constitution and the laws, and that they have not abused the discretion given to them."26

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by
alleging that he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly
identified by the members of the respondent committees as one of the voices in the
recordings.27 Obviously, therefore, petitioner Garcillano stands to be directly injured by the
House committees’ actions and charges of electoral fraud. The Court recognizes his standing
to institute the petition for prohibition.

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that
they are concerned citizens, taxpayers, and members of the IBP. They are of the firm
conviction that any attempt to use the "Hello Garci" tapes will further divide the country.
They wish to see the legal and proper use of public funds that will necessarily be defrayed in
the ensuing public hearings. They are worried by the continuous violation of the laws and
individual rights, and the blatant attempt to abuse constitutional processes through the
conduct of legislative inquiries purportedly in aid of legislation.28

Intervenor Sagge alleges violation of his right to due process considering that he is
summoned to attend the Senate hearings without being apprised not only of his rights therein
through the publication of the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation, but also of the intended legislation which underpins the investigation. He further
intervenes as a taxpayer bewailing the useless and wasteful expenditure of public funds
involved in the conduct of the questioned hearings.29

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and
that intervenor Sagge asserts his constitutional right to due process,30 they satisfy the requisite
personal stake in the outcome of the controversy by merely being citizens of the Republic.

Following the Court’s ruling in Francisco, Jr. v. The House of Representatives,31 we find
sufficient petitioners Ranada’s and Agcaoili’s and intervenor Sagge’s allegation that the
continuous conduct by the Senate of the questioned legislative inquiry will necessarily
involve the expenditure of public funds.32 It should be noted that in Francisco, rights personal
to then Chief Justice Hilario G. Davide, Jr. had been injured by the alleged unconstitutional
acts of the House of Representatives, yet the Court granted standing to the petitioners therein
for, as in this case, they invariably invoked the vindication of their own rights–as taxpayers,
members of Congress, citizens, individually or in a class suit, and members of the bar and of
the legal profession–which were also supposedly violated by the therein assailed
unconstitutional acts.33

99 | P a g e
Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and
intervenor Sagge advance constitutional issues which deserve the attention of this Court in
view of their seriousness, novelty and weight as precedents. The issues are of transcendental
and paramount importance not only to the public but also to the Bench and the Bar, and
should be resolved for the guidance of all.34

Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior
cases climaxing in the more recent case of Chavez, the Court recognizes the legal standing of
petitioners Ranada and Agcaoili and intervenor Sagge.

- II -

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly
stressed in our prior decisions is the principle that the exercise by this Court of judicial power
is limited to the determination and resolution of actual cases and controversies.35 By actual
cases, we mean existing conflicts appropriate or ripe for judicial determination, not
conjectural or anticipatory, for otherwise the decision of the Court will amount to an advisory
opinion. The power of judicial inquiry does not extend to hypothetical questions because any
attempt at abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities.36 Neither will the Court determine a moot question in a
case in which no practical relief can be granted. A case becomes moot when its purpose has
become stale.37 It is unnecessary to indulge in academic discussion of a case presenting a
moot question as a judgment thereon cannot have any practical legal effect or, in the nature of
things, cannot be enforced.38

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the
issuance of an injunctive writ to prohibit the respondent House Committees from playing the
tape recordings and from including the same in their committee report. He likewise prays that
the said tapes be stricken off the records of the House proceedings. But the Court notes that
the recordings were already played in the House and heard by its members.39 There is also the
widely publicized fact that the committee reports on the "Hello Garci" inquiry were
completed and submitted to the House in plenary by the respondent committees.40 Having
been overtaken by these events, the Garcillano petition has to be dismissed for being moot
and academic. After all, prohibition is a preventive remedy to restrain the doing of an act
about to be done, and not intended to provide a remedy for an act already accomplished.41

- III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be
allowed to continue with the conduct of the questioned legislative inquiry without duly
published rules of procedure, in clear derogation of the constitutional requirement.

Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the
House of Representatives, or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure." The requisite of
publication of the rules is intended to satisfy the basic requirements of due
process.42 Publication is indeed imperative, for it will be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law or rule of which he had no notice
whatsoever, not even a constructive one.43 What constitutes publication is set forth in Article
2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days following the

100 | P a g e
completion of their publication either in the Official Gazette, or in a newspaper of general
circulation in the Philippines."44

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that
the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published
in newspapers of general circulation only in 1995 and in 2006.45 With respect to the present
Senate of the 14th Congress, however, of which the term of half of its members commenced
on June 30, 2007, no effort was undertaken for the publication of these rules when they first
opened their session.

Recently, the Court had occasion to rule on this very same question. In Neri v. Senate
Committee on Accountability of Public Officers and Investigations,46 we said:

Fourth, we find merit in the argument of the OSG that respondent Committees
likewise violated Section 21 of Article VI of the Constitution, requiring that the
inquiry be in accordance with the "duly published rules of procedure." We quote
the OSG’s explanation:

The phrase "duly published rules of procedure" requires the Senate of every
Congress to publish its rules of procedure governing inquiries in aid of
legislation because every Senate is distinct from the one before it or after it.
Since Senatorial elections are held every three (3) years for one-half of the
Senate’s membership, the composition of the Senate also changes by the end
of each term. Each Senate may thus enact a different set of rules as it may
deem fit. Not having published its Rules of Procedure, the subject hearings
in aid of legislation conducted by the 14th Senate, are therefore,
procedurally infirm.

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling
with the following rationalization:

The present Senate under the 1987 Constitution is no longer a continuing legislative
body. The present Senate has twenty-four members, twelve of whom are elected every
three years for a term of six years each. Thus, the term of twelve Senators expires
every three years, leaving less than a majority of Senators to continue into the next
Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of
Senators to "constitute a quorum to do business." Applying the same reasoning
in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing
body because less than majority of the Senators continue into the next Congress. The
consequence is that the Rules of Procedure must be republished by the Senate after
every expiry of the term of twelve Senators.47

The subject was explained with greater lucidity in our Resolution48 (On the Motion for
Reconsideration) in the same case, viz.:

On the nature of the Senate as a "continuing body," this Court sees fit to issue a
clarification. Certainly, there is no debate that the Senate as an institution is
"continuing," as it is not dissolved as an entity with each national election or change
in the composition of its members. However, in the conduct of its day-to-day business

101 | P a g e
the Senate of each Congress acts separately and independently of the Senate of the
Congress before it. The Rules of the Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at
the next session in the same status.

All pending matters and proceedings shall terminate upon the expiration
of one (1) Congress, but may be taken by the succeeding Congress as if
present for the first time.

Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed
bills and even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional
on the Senate of the succeeding Congress to take up such unfinished matters, not in
the same status, but as if presented for the first time. The logic and practicality of
such a rule is readily apparent considering that the Senate of the succeeding Congress
(which will typically have a different composition as that of the previous Congress)
should not be bound by the acts and deliberations of the Senate of which they had no
part. If the Senate is a continuing body even with respect to the conduct of its
business, then pending matters will not be deemed terminated with the expiration of
one Congress but will, as a matter of course, continue into the next Congress with the
same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite
nature of the conduct of its business is reflected in its Rules. The Rules of the Senate
(i.e. the Senate’s main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the
preceding elections shall begin their term of office, the President may endorse
the Rules to the appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be

presented at least one day before its consideration, and the vote of the majority
of the Senators present in the session shall be required for its approval.

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall
remain in force until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into account the new composition
of the Senate after an election and the possibility of the amendment or revision of the

102 | P a g e
 Rules at the start of each session in which the newly elected Senators shall begin their
term.

However, it is evident that the Senate has determined that its main rules are intended
to be valid from the date of their adoption until they are amended or repealed. Such
language is conspicuously absent from the Rules. The Rules simply state "(t)hese
Rules shall take effect seven (7) days after publication in two (2) newspapers of
general circulation." The latter does not explicitly provide for the continued
effectivity of such rules until they are amended or repealed. In view of the difference
in the language of the two sets of Senate rules, it cannot be presumed that the Rules
(on legislative inquiries) would continue into the next Congress. The Senate of the
next Congress may easily adopt different rules for its legislative inquiries which come
within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry
be conducted in accordance with the duly published rules of procedure is categorical.
It is incumbent upon the Senate to publish the rules for its legislative inquiries in each
Congress or otherwise make the published rules clearly state that the same shall be
effective in subsequent Congresses or until they are amended or repealed to
sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be
effective even in the next Congress, it could have easily adopted the same language it
had used in its main rules regarding effectivity.

Respondents justify their non-observance of the constitutionally mandated publication by

arguing that the rules have never been amended since 1995 and, despite that, they are
published in booklet form available to anyone for free, and accessible to the public at the
Senate’s internet web page.49

The Court does not agree. The absence of any amendment to the rules cannot justify the
Senate’s defiance of the clear and unambiguous language of Section 21, Article VI of the
Constitution. The organic law instructs, without more, that the Senate or its committees may
conduct inquiries in aid of legislation only in accordance with duly published rules of
procedure, and does not make any distinction whether or not these rules have undergone
amendments or revision. The constitutional mandate to publish the said rules prevails over
any custom, practice or tradition followed by the Senate.

Justice Carpio’s response to the same argument raised by the respondents is illuminating:

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet
form available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which
requires publication either in the Official Gazette or in a newspaper of general
circulation. The Rules of Procedure even provide that the rules "shall take effect
seven (7) days after publication in two (2) newspapers of general circulation,"
precluding any other form of publication. Publication in accordance with Tañada is
mandatory to comply with the due process requirement because the Rules of
Procedure put a person’s liberty at risk. A person who violates the Rules of
Procedure could be arrested and detained by the Senate.

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The invocation by the respondents of the provisions of R.A. No. 8792,50 otherwise known as
the Electronic Commerce Act of 2000, to support their claim of valid publication through the
internet is all the more incorrect. R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a written document only for evidentiary
purposes.51 In other words, the law merely recognizes the admissibility in evidence (for their
being the original) of electronic data messages and/or electronic documents.52 It does not
make the internet a medium for publishing laws, rules and regulations.

Given this discussion, the respondent Senate Committees, therefore, could not, in violation of
the Constitution, use its unpublished rules in the legislative inquiry subject of these
consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be
deferred until it shall have caused the publication of the rules, because it can do so only "in
accordance with its duly published rules of procedure."

Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya.
While we take judicial notice of this fact, the recent publication does not cure the infirmity of
the inquiry sought to be prohibited by the instant petitions. Insofar as the consolidated cases
are concerned, the legislative investigation subject thereof still could not be undertaken by the
respondent Senate Committees, because no published rules governed it, in clear
contravention of the Constitution.

With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues
raised in the consolidated petitions.

WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No.
179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the
Republic of the Philippines and/or any of its committees from conducting any inquiry in aid
of legislation centered on the "Hello Garci" tapes.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice
*
RENATO C. CORONA CONCHITA CARPIO MORALES

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 Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

DIGEST

Facts:

Tapes ostensibly containing a wiretapped conversation purportedly between the President of

the Philippines and a high-ranking official of the Commission on Elections (COMELEC)
surfaced. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly contained
the President’s instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in
her favor results of the 2004 presidential elections. These recordings were to become the
subject of heated legislative hearings conducted separately by committees of both Houses of
Congress.

Intervenor Sagge alleges violation of his right to due process considering that he is
summoned to attend the Senate hearings without being apprised not only of his rights therein
through the publication of the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation, but also of the intended legislation which underpins the investigation. He further
intervenes as a taxpayer bewailing the useless and wasteful expenditure of public funds
involved in the conduct of the questioned hearings.

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The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that
the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published
in newspapers of general circulation only in 1995 and in 2006. With respect to the present
Senate of the 14th Congress, however, of which the term of half of its members commenced
on June 30, 2007, no effort was undertaken for the publication of these rules when they first
opened their session.

Respondents justify their non-observance of the constitutionally mandated publication by

arguing that the rules have never been amended since 1995 and, despite that, they are
published in booklet form available to anyone for free, and accessible to the public at the
Senate’s internet web page.

Issue:

Whether or not publication of the Rules of Procedures Governing Inquiries in Aid of

Legislation through the Senate’s website, satisfies the due process requirement of law.

Held:

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of general circulation. The Rules
of Procedure even provide that the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation," precluding any other form of publication.
Publication in accordance with Tañada is mandatory to comply with the due process
requirement because the Rules of Procedure put a person’s liberty at risk. A person who
violates the Rules of Procedure could be arrested and detained by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792, otherwise known as
the Electronic Commerce Act of 2000, to support their claim of valid publication through the
internet is all the more incorrect. R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a written document only for evidentiary
purposes. In other words, the law merely recognizes the admissibility in evidence (for their
being the original) of electronic data messages and/or electronic documents. It does not make
the internet a medium for publishing laws, rules and regulations.

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Given this discussion, the respondent Senate Committees, therefore, could not, in violation of
the Constitution, use its unpublished rules in the legislative inquiry subject of these
consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be
deferred until it shall have caused the publication of the rules, because it can do so only "in
accordance with its duly published rules of procedure."

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