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2428 Ch. 15 §19. §20. Particular Conduct As Contumacious the Contempt Statute, 2 USC §192, Penalizes Any Person

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2428 Ch. 15 §19. §20. Particular Conduct As Contumacious the Contempt Statute, 2 USC §192, Penalizes Any Person Ch. 15 § 19. DESCHLER’S PRECEDENTS who were never subpenaed, and never default’’ or who, having appeared, given an opportunity to appear and ‘‘refuses to answer any question. state whether or not they would or could comply with a subpena. Under . .’’ The word ‘‘default’’ means those circumstances, I maintain that failure to appear in response to a insofar as those individuals are con- summons (13) as well as failure to cerned this matter is not properly be- produce papers.(14) With respect to fore the House, in that neither the res- olution nor the report from the com- a witness summoned to give testi- mittee sets forth that these individuals mony, ‘‘default’’ includes not only were subpenaed, with the exception of failure to appear, but refusal to be Dr. Barsky. None of the others were sworn.(15) subpenaed; none of the others came be- (16) fore the committee and were accorded A district court held that the even an opportunity to say ‘‘yes’’ or contempt statute proscribes every ‘‘no’’ as to whether or not they had au- willful failure to comply with a thority or control over the records and summons, not merely the failure books and whether they could or would comply with the committee’s subpena. to appear pursuant to a summons, For that reason, as far as they are con- and interpreted the word ‘‘default’’ cerned, this resolution is not properly to mean failure to give testimony before this House. or produce papers as well as re- The SPEAKER: The Chair is ready to fusal to testify or appear. ‘‘De- rule. fault’’ also applies to a witness’ The report and the resolution are both before the House for its deter- withdrawal from a hearing with- mination, and not the determination of out consent of the committee.(17) the Chair. The Chair overrules the point of order.(11) 13. United States v Bryan, 339 U.S. 323, 327 (1950). See § § 20.1, 20.2, infra. 14. United States v Bryan, 339 U.S. 323, § 20. Particular Conduct as 327 (1950). See § § 20.9, 20.10, infra. Contumacious 15. Eisler v United States, 170 F2d 273 (D.C. Cir. 1948), cert. dismissed, 338 The contempt statute, 2 USC U.S. 883 (1949); United States v Jo- § 192, penalizes any person sum- sephson, 165 F2d 82 (2d Cir. 1947), moned as a witness by a com- cert. denied, 333 U.S. 838 (1948). mittee who ‘‘willfully (12) makes See § § 20.3, 20.4, infra. 16. United States v Hintz, 193 F Supp 11. See § 17.4, supra, in which the House 325 (N.D. Ill. 1961). agreed to an amendment deleting 17. United States v Costello, 198 F2d names of all persons who had not 200 (2d Cir. 1952), cert. denied, 344 been subpenaed. U.S. 874 (1952); Townsend v United 12. See § 7, supra, for a discussion of States, 95 F2d 352 (D.C. Cir. 1938), willfulness in relation to intent of cert. denied, 303 U.S. 664 (1938). witness. See § § 20.7, 20.8, infra. 2428 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20 The portion of the statute re- has been regarded as contuma- garding refusal to answer any cious. question is closely related to will- fulness, an element which has been read into the statute not- Refusal to Appear withstanding the fact that ‘‘will- ful’’ or ‘‘willfully’’ does not ex- § 20.1 A committee filed a priv- pressly modify refusal to answer. ileged report which included A court of appeals (18) explained. a contempt citation and facts The statute uses the word ‘‘willfully’’ relating to the refusal of a as a word of art to define the offense witness to appear before it. of failing to appear; ‘‘willfully’’ is not On Apr. 22, 1947,(20) the Com- used with respect to a person ‘‘who having appeared, refuses to answer. mittee on Un-American Activities . ’’ The act of refusing (as distin- offered a privileged report, House guished from failing) to answer is a Report No. 289, relating to a wit- positive, affirmative act; the result is ness’ refusal to appear in response conscious and intended. Congress rec- to a subpena ad testificandum. ognized that a failure to appear in re- sponse to a summons could well be due PROCEEDINGS AGAINST EUGENE DEN- to other causes than willfulness or de- NIS, ALSO KNOWN AS FRANCIS liberate purpose to disobey the sum- WALDRON mons or the statute. To decline or MR. [J. PARNELL] THOMAS of New refuse to answer a question, however, Jersey: Mr. Speaker, by direction of is by its own nature a deliberate and the Committee on Un-American Ac- willful act. tivities, I present a privileged report, which I send to the Clerk’s desk and A committee’s failure to give a ask to have read. witness a clear direction to an- The SPEAKER: (1) The Clerk will swer a question has constituted a read the report. The Clerk read as follows: ground on which to reverse con- (19) tempt convictions. 20. 93 Cong. Rec. 3813, 3814, 80th Cong. The precedents in this section 1st Sess. On the same day, the illustrate particular conduct that House adopted a resolution (H. Res. 193) certifying the contemptuous 18. Deutch v United States, 235 F2d 858 conduct to the appropriate U.S. at- (D.C. Cir. 1956). torney. See also United States v Den- 19. Emspak v United States, 349 U.S. nis, 171 F2d 986 (D.C. Cir. 1948), 190, 202 (1955); Quinn v United aff’d. 339 U.S. 162 (1950), wherein States, 349 U.S. 155, 165 (1955); defendant’s subsequent conviction Bart v United States, 349 U.S. 219, was affirmed. 221 (1955). 1. Joseph W. Martin, Jr. (Mass.). 2429 Ch. 15 § 20 DESCHLER’S PRECEDENTS REPORT CITING EUGENE DENNIS, investigator of the Committee on Un- ALSO KNOWN AS FRANCIS WALDRON American Activities, who was duly authorized to serve the said subpena The Committee on Un-American and who served the said subpena Activities as created and authorized upon instructions received from the by the House of Representatives chairman of the Committee on Un- through the enactment of Public Law American Activities. The return of No. 601, section 121, subsection Q the service by the said Robert E. (2), caused to be issued a subpena to Stripling being endorsed thereon, Eugene Dennis, also known as which is set forth in words and fig- Francis Waldron, who is general sec- retary of the Communist Party of the ures as follows: United States. The said subpena di- ‘‘Subpena for Eugene Dennis also rected Eugene Dennis, also known as known as Francis Waldron before Francis Waldron, to be and appear the Committee on Un-American Ac- before the said Committee on Un- tivities, United States House of Rep- American Activities on April 9, 1947, resentatives, served at 11:35 a.m., and then and there to testify touch- March 26, 1947, in the committee’s ing matters of inquiry committed to chambers in Washington, D.C. the said committee; the subpena ‘‘ROBERT E. STRIPLING, being set forth in words and figures ‘‘Chief Investigator, as follows: Committee on Un-American Activities.’’ ‘‘By authority of the House of Rep- resentatives of the Congress of the On April 7, 1947, a telegram was United States of America, to Robert sent to Mr. Eugene Dennis, general E. Stripling: You are hereby com- secretary of the Communist party of manded to summon Eugene Dennis, the United States, which is set forth also known as Francis Waldron, gen- herein in words and figures as fol- eral secretary, Communist Party of lows: the United States, to be and appear ‘‘April 7, 1947. before the Un-American Activities Committee of the House of Rep- Mr. Eugene Dennis, resentatives of the United States, of ‘‘General Secretary, which the Honorable J. Parnell ‘‘Headquarters, Communist Party, Thomas is chairman, in their cham- ‘‘50 East Thirteenth Street, ber in the city of Washington, on the ‘‘New York, N.Y. 9th day of April 1947, at the hour of ‘‘This is to notify you that in re- 10 a.m., then and there to testify sponse to the subpena which was touching matters of inquiry com- served upon you March 26, you are mitted to said committee; and he is to appear before the Committee on not to depart without leave of said Un-American Activities, at the com- committee. Herein fail not, and mittee’s chambers, 225 Old House make return of this summons. Office Building, at 10 a.m., April 9, ‘‘Witness my hand and the seal of 1947, to then and there give testi- the House of Representatives of the mony under oath concerning matters United States, at the city of Wash- pertinent to the committee’s inquiry. ington, this 26th day of March 1947. ‘‘ROBERT E. STRIPLING, ‘‘J. PARNELL THOMAS, Chairman. ‘‘Chief Investigator, ‘‘Attest: Committee on Un-American Activities.’’ ‘‘JOHN ANDREWS, Clerk.’’ The said subpena was duly served, The said Eugene Dennis, also as appears by the return made known as Francis Waldron, failed to thereon by Robert E. Stripling, chief appear before the said Committee on 2430 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20 Un-American Activities on April 9, nays approved a resolution direct- 1947, as directed by the subpena served upon him on March 26, 1947, ing the Speaker to certify a re- and the willful and deliberate refusal port. of the witness to appear before the Committee on Un-American Activi- MR. [JOHN S.] WOOD of Georgia: Mr. ties is a violation of the subpena Speaker, I offer a privileged resolution served upon him by the Committee (H.
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