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 resolution 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 willfulness, an element which has been read into the statute not- Refusal to Appear withstanding the fact that ‘‘willful’’ 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 response 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 secretary 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. Res. 517) and ask for its immediate on Un-American Activities and consideration. places the said Eugene Dennis, also The Clerk read the resolution, as fol- known as Francis Waldron, in con- lows: tempt of the House of Representa- tives of the United States. Resolved, That the Speaker of the House of Representatives certify the § 20.2 The House agreed to a report of the Committee on Un- American Activities of the House of privileged resolution direct- Representatives as to the willful de- ing the Speaker to certify to fault of Sidney Buchman in failing to appear before the Committee on Un- the appropriate U.S. Attor- American Activities in response to a ney a report citing a witness subpena duly served upon him, to- in contempt for refusing to gether with all the facts in connection therewith, under seal of the appear at an investigative House of Representatives, to the hearing to which he had United States Attorney for the Dis- trict of Columbia, to the end that the been subpenaed. said Sidney Buchman may be pro- On Feb. 5, 1952,(2) the House on ceeded against in the manner and a roll call vote of 316 yeas to 0 form provided by law.. . . THE SPEAKER: (3) The question is on 2. 98 CONG. REC. 829, 832, 82d Cong. the resolution. 2d Sess. See also, as a further exam- Mr. WOOD of Georgia: On that, Mr. ple, 93 CONG. REC. 3806, 3811, 80th Speaker, I demand the yeas and nays. Cong. 1st Sess., Apr. 22, 1947, for The yeas and nays were ordered. the approval, on a vote of 357 yeas The question was taken; and there to 2 nays, of H. Res. 190, directing were—yeas 316, nays 0, not voting the Speaker to certify to the U.S. At- 115, as follows: . . . torney for the District of Columbia, So the resolution was agreed to. H. REPT. NO. 281, citing Leon Jo- sephson in contempt for refusing to Refusal to Be Sworn appear before the Committee on Un- American Activities; and 93 CONG. § 20.3 A committee files a priv- REC. 3814, 3820, 80th Cong. 1st ileged report which includes Sess., Apr. 22, 1947, for the approval, on a vote of 196 yeas to 1 nis, also known as Francis Waldron, nay, of H. Res. 193, directing the in contempt for refusing to appear Speaker to certify to the U.S. Attor- before the Committee on Un-Amer- ney for the District of Columbia H. ican Activities. REPT. NO. 289, citing Eugene Den- 3. Sam Rayburn (Tex.).

2431 Ch. 15 § 20 DESCHLER’S PRECEDENTS

a contempt citation and facts under procedures which could ulti- mately result in Mr. Liddy being relating to the refusal of a cited for contempt of Congress. [See witness to be sworn. Appendix 1.] On July 26, 1973 the ( ) House Committee on Armed Services On Sept. 10, 1973, 4 the Com- met to receive the report of the Spe- mittee on Armed Services filed a cial Subcommittee on Intelligence with regard to the refusal of Mr. privileged report relating to the Liddy to be sworn. On July 31, 1973, refusal of G. Gordon Liddy to be the full committee, a quorum being sworn. present, on a record vote of 33–0, recommended the adoption of a reso- PROCEEDINGS AGAINST GEORGE lution as follows: GORDON LIDDY ‘‘RESOLUTION MR. [LUCIEN N.] NEDZI [of Michi- ‘‘Resolved, That the Speaker of the gan]: Mr. Speaker, I rise to a question House of Representatives, certify the of the privilege of the House, and, by report of the Committee on Armed direction of the Committee on Armed Services of the House of Representa- Services, I submit a privileged report tives as to the refusal of George Gor- (H. Rept. No. 93–453). don Liddy to be sworn or to take affirmation to testify before a duly au- The Clerk read as follows: thorized subcommittee of the said Committee on Armed Services on REPORT CITING GEORGE GORDON July 20, 1973, together with all the LIDDY facts in connection therewith, under the seal of the House of Representa- INTRODUCTION tives, to the United States Attorney On Friday, July 20, 1973, during for the District of Columbia, to the an executive session of the Special end that the said George Gordon Subcommittee on Intelligence of the Liddy may be proceeded against in House Committee on Armed Serv- the manner and form provided by ices, Mr. George Gordon Liddy, who law.’’ was called as a witness, pursuant to [See Appendix 2.] a Writ of Habeas Corpus, refused to be sworn prior to offering any testi- BACKGROUND mony or claiming his privilege under the Fifth Amendment. A quorum At the time of the subcommittee being present, the subcommittee hearings, Mr. Liddy was in confine- voted to report the matter to the full ment in the District of Columbia Jail House Committee on Armed Services as the result of his conviction on the with a recommendation for reference Watergate breakin. Accordingly, the to the House of Representatives subcommittee petitioned Chief Judge John J. Sirica of the United States District Court for the District of Co- 4. 119 CONG. REC. 28951, 28952, 93d lumbia for a Writ of Habeas Corpus Cong. 1st Sess. On the same date, Ad Testificandum as the only means the House considered the report and of obtaining Mr. Liddy’s presence be- adopted a resolution certifying the fore the subcommittee. In his discre- tion Judge Sirica signed that petition matter to the appropriate U.S. attor- and an order was delivered to the ney. See also U.S. v Liddy, Crim. United States Marshal for Mr. No. 74–117 (D.D.C. 1974). Liddy’s appearance before the sub-

2432 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20 committee on July 20, 1973. [See Ap- torney on June 20, 1973. [See Ap- pendix 1, pp. 16–17.] Mr. Liddy appendix 1, pp. 17–18]. As indicated peared as ordered. above, Mr. Liddy was properly before In his appearance Mr. Liddy was the subcommittee on a valid, duly asked to rise and take the oath. He executed Writ of Habeas Corpus Ad refused to take the oath as a wit- Testificandum [See Appendix 1, p. ness. Subsequently, his counsel pre- 16.] sented an extensive brief after which Mr. Liddy again refused to take the CONCLUSION oath. The witness claimed he had The position of the committee is the absolute right under the Fifth that all substantive and procedural Amendment to remain completely si- legal prerequisites have been satis- lent with regard to any offering be- fied to date and that the House of fore the subcommittee. He sought to Representatives should adopt the establish that contention based upon resolution to refer the matter to the his current conviction on the Water- appropriate U.S. Attorney. Title 2, gate breakin which is under appeal, United States Code, Sections 192 and the possibility of future indict- and 194 provide the necessary vehi- ments being brought against him. cles for taking this action. Section He further argued a Sixth Amend- 192 provides the basis for indictment ment right to avoid what he claims should a witness before either House to be prejudicial publicity in the of Congress refuse to answer any media should he claim his Fifth question pertinent to the inquiry. Amendment rights. Mr. Liddy agreed Section 194 provides the vehicle for that his refusal to be sworn was not certifying such a result to the appro- based on any religious grounds. priate U.S. Attorney. The central question is whether failure to take AUTHORITY the oath constitutes a refusal to give The Special Subcommittee on In- testimony. We believe it does. telligence is a duly constituted sub- Accordingly, it is the position of committee of the House Committee the committee that the proceedings on Armed Services pursuant to to date are in order and we rec- House Resolution 185, 93d Congress, ommend that the House adopt the and the appointment made during resolution to report the fact of the the organization meeting of the Com- refusal of George Gordon Liddy to be mittee on Armed Services on Feb- sworn to testify at a meeting of the ruary 27, 1973. [See Appendix 1, pp. Special Subcommittee on Intelligence 11–16.] In addition, the chairman of on July 20, 1973 together with all the subcommittee was given an the facts in connection therewith to order directing an inquiry into any the end that he may be proceeded CIA involvement in Watergate- against as provided by law. A memorandum of law is con- Ellsberg matters. The subcommittee ( ) recommended those hearings on May tained in Appendix 3. 5 11, 1973, and in sixteen sessions since that date has had before it § 20.4 The House agreed to a some twenty-four witnesses bearing privileged resolution direct- on the subject of the inquiry. Prior to his appearance on July 20, 1973, Mr. Liddy, through his attorney, was ad- 5. Appendices 1, 2, and 3, the hearings vised by telephone of the purpose of of the subcommittee, meetings of the the investigation and was asked to committee, and a legal memo- acknowledge that information by let- randum, respectively, on pp. 28952– ter. That was done by Mr. Liddy’s at- 59, are omitted.

2433 Ch. 15 § 20 DESCHLER’S PRECEDENTS

ing the Speaker to certify to House Committee on Internal Security, the appropriate U.S. Attor- I offer a privileged resolution (H. Res. 1220) and ask for its immediate consid- ney a report citing a witness eration. in contempt for refusing to The Clerk read the resolution as fol- be sworn or make affirma- lows: tion to testify at an investiga- H. RES. 1220 tive hearing. ( ) Resolved, That the Speaker of the On Sept. 23, 1970, 6 the House House of Representatives certify the by a vote of 337 yeas to 14 nays report of the Committee on Internal approved House Resolution 1220, Security of the House of Representa- tives as to the refusal of Arnold S. authorizing the Speaker to certify Johnson to be sworn or to make af- a report on a witness’ refusal to firmation to testify before a duly au- testify to a U.S. Attorney. thorized subcommittee of the said Committee on Internal Security, to- MR. [RICHARD H.] ICHORD [of Mis- gether with all the facts in connec- souri]: Mr. Speaker, by direction of the tion therewith, under the seal of the House of Representatives, to the 6. 116 CONG. REC. 33269, 33278, 91st United States Attorney for the Dis- Cong. 2d Sess. See also, as examples, trict of Columbia, to the end that the 119 CONG. REC. 28960, 28962, said Arnold S. Johnson may be pro- 28963, 93d Cong. 1st Sess., Sept. 10, ceeded against in the manner and 1973, for the approval, by a vote of form provided by law. . . . 334 yeas to 11 nays, of H. Res. 536, MR CHORD directing the Speaker to certify to . I : Mr. Speaker, I move the U.S. Attorney for the District of the previous question on the resolu- Columbia, H. REPT. No. 93–453, tion. from the Committee on Armed Serv- The previous question was ordered. ices, citing G. Gordon Liddy for con- THE SPEAKER PRO TEMPORE:(7) The tempt for his refusal to be sworn or question is on the resolution. take affirmation to testify before the The question was taken; and the Special Subcommittee on Intel- Speaker pro tempore announced that ligence; and 93 CONG. REC. 1128, the ayes appeared to have it. 1129, 1137, 80th Cong. 1st Sess., Feb. 18, 1947, for the approval by MR. [JOHN M.] ASHBROOK [of Ohio]: 370 yeas to 1 nay of H. Res. 104, di- Mr. Speaker, I object to the vote on the recting the Speaker to certify to the ground that a quorum is not present U.S. Attorney for the District of Co- and make the point of order that a lumbia the report [H. REPT. No. 43] quorum is not present. citing Gerhart Eisler for contempt THE SPEAKER PRO TEMPORE: Evi- for his refusal to be sworn and tes- dently a quorum is not present. tify before the Committee on Un- American Activities. Counsel for Mr. The Doorkeeper will close the doors, Liddy filed a memorandum outlining the Sergeant at Arms will notify ab- the English common law background sent Members, and the Clerk will call of the fifth amendment. See 119 the roll. CONG. REC. 28952, 28953, 93d Cong. 1st Sess., Sept. 10, 1973. 7. Neal Smith (Iowa).

2434 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20

The question was taken; and there through the enactment of Public Law were—yeas 337, nays 14, not voting 601, section 121, subsection (q)(2) of 78, as follows: . . . the 79th Congress, and under House Resolution 5 of the 83d Congress, So the resolution was agreed to. caused to be issued a subpena to The result of the vote was an- Francis X. T. Crowley, 226 Second nounced as above recorded. Avenue, Apartment 15, New York, The doors were opened. N.Y. The said subpena directed Francis X. T. Crowley to be and ap- A motion to reconsider was laid on pear before said Committee on Un- the table. American Activities on May 4, 1953, at the hour of 10:30 a.m., then and there to testify touching matters of Refusal to Answer Questions inquiry committed to said committee, and not to depart without leave of § 20.5 A committee filed a priv- said committee. The subpena served ileged report which included upon said Francis X. T. Crowley is set forth in words and figures, as fol- a contempt citation and facts lows: relating to the refusal of a ‘‘By authority of the House of Rep- witness to answer questions. resentatives of the Congress of the United States of America, to George On May 11, 1954,(8) the Com- C. Williams: You are hereby com- manded to summon Francis X. T. mittee on Un-American Activities Crowley to be and appear before the offered a privileged report relating Committee on Un-American Activi- to the refusal of Francis X. T. ties, or a duly authorized sub- (9) committee thereof, of the House of Crowley to testify. Representatives of the United States, of which the Honorable Har- PROCEEDINGS AGAINST FRANCIS X. T. old H. Velde is chairman, in their CROWLEY chamber in the city of New York, room 110, Federal Building, on Mon- MR. [HAROLD H.] VELDE [of Illinois]: day, Mav 4, 1953, at the hour of Mr. Speaker, by direction of the Com- 10:30 a.m., then and there to testify mittee on Un-American Activities, I touching matters of inquiry com- present a privileged report (H. Rept. mitted to said committee; and he is No. 1586). not to depart without leave of said committee. The Clerk read the report, as fol- ‘‘Herein fail not, and make return lows: of this summons. The Committee on Un-American ‘‘Witness my hand and the seal of Activities, as created and authorized the House of Representatives of the by the House of Representatives, United States, at the city of Wash- ington, this 9th day of April, 1953. ‘‘HAROLD H. VELDE, 8. 100 CONG. REC. 6400, 6401, 83d ‘‘Chairman. Cong. 2d Sess. ‘‘Attest: LYLE O. SNADER, 9. This citation was rescinded after Mr. ‘‘Clerk.’’ Crowley answered questions before The said subpena was duly served the committee. See § 21.1, infra, for as appears by the return made the report of his purgation. thereon by George C. Williams, in-

2435 Ch. 15 § 20 DESCHLER’S PRECEDENTS

vestigator, who was duly authorized which questions were pertinent to to serve the said subpena. The re- the subject under inquiry, refused to turn of the service by the said answer such questions; and as a re- George C. Williams, being endorsed sult of Francis X. T. Crowley’s re- thereon, is set forth in words and fig- fusal to answer the aforesaid ques- ures, as follows: tions, your committee was prevented ‘‘Subpena for Francis X. T. Crow- from receiving testimony and infor- ley, before the Committee on Un- mation concerning a matter com- American [Activities]. Served at mitted to said committee in accord- home, 226 2d Avenue, Apt. 15, ance with the terms of the subpena N.Y.C. on 4–24–53 at 6:32 p.m. served upon the said Francis X. T. ‘‘GEORGE. C. WILLIAMS, Crowley. ‘‘Investigator, House of The record of the proceedings be- Representatives.’’ fore the committee on June 8, 1953, On May 4, 1953, a telegram was during which Francis X. T. Crowley sent to Francis X. T. Crowley by refused to answer the aforesaid Harold H. Velde, chairman of the questions pertinent to the subject House Committee on Un-American under inquiry is set forth in fact as Activities, which is set forth in words follows: and figures, as follows: ‘‘UNITED STATES HOUSE OF REPRESENTATIVES, ‘‘NEW YORK, N.Y., May 4, 1953. ‘‘SUBCOMMITTEE OF ‘‘FRANCIS X. CROWLEY, 226 Second THE COMMITTEE Ave., New York City: ON UN-AMERICAN ACTIVITIES, ‘‘Your appearance before Com- mittee on Un-American Activities is ‘‘Washington, D.C., hereby postponed to Monday, June 8, Monday, June 8,1965. 1953, 10:30 a.m., 226 House Office Building, Washington, D.C. ‘‘EXECUTIVE SESSION ‘‘HAROLD H. VELDE, The subcommittee of the Com- ‘‘Chairman.’’ mittee on Un-American Activities The said Francis X. T. Crowley, met, pursuant to call, at 10:43 a.m. pursuant to said subpena and in in room 226 of the Old House Office compliance therewith, appeared be- Building, Hon. Bernard W. Kearney, fore the said committee on June 8, presiding. 1953, to give such testimony as re- Committee member present: Rep- quired under and by virtue of Public resentative Bernard W. Kearney Law 601, section 121, subsection (presiding). (q)(2) of the 79th Congress, and under House Resolution 5 of the 83d ***** Congress. The said Francis X. T. ‘‘MR. KEARNEY. The committee will Crowley, having appeared as a wit- be in order. ness and having been asked ques- ‘‘Let the record show that, for the tions, namely: purpose of the hearing this morning, ‘‘When you were in Boston, Mass. a subcommittee has been set up com- . . . were you a member of the West posed of Mr. Kearney from New End Club of the Communist Party? York. The hearing will be conducted ‘‘Have you ever been associated under the authority granted for sub- with any members of the West End committee by the chairman of the Club of Boston? committee, Mr. Velde. ‘‘Have you ever at any time been a member of the Communist Party?’’ *****

2436 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20

‘‘Will you stand and be sworn? ‘‘MR. CROWLEY. It goes against my ‘‘Do you solemnly swear the testi- conscience to speak about it. I don’t mony you shall give before this sub- believe I should be in a position committee will be the truth, the where I have to speak about anyone whole truth, and nothing but the except my priest, and I have spoken truth, so help you God? to him about it.... ‘‘MR. CROWLEY. I do. ‘‘MR. KEARNEY.... Have you ever been associated with any mem- ‘‘TESTIMONY OF FRANCIS XAVIER bers of the West End Club of Bos- THOMAS CROWLEY ton? ‘‘MR. CROWLEY. That comes to the ‘‘MR. KUNZIG. Mr. Crowley, are same thing. I won’t answer that ei- you accompanied by counsel here ther. this morning? ‘‘MR. KEARNEY. You won’t answer ‘‘MR. CROWLEY. No; I am by my- it? self. ‘‘MR. KUNZIG. You understand, of ***** course, your right to be accompanied by counsel if you so desire? ‘‘MR. CROWLEY. No. ‘‘MR. CROWLEY. I do. ‘‘MR. KEARNEY. As I understand ‘‘MR. KUNZIG. And it is your wish your testimony, you just refuse to to be here present at this hearing answer any questions concerning today without counsel? your activities with communism? R ROWLEY ‘‘MR. CROWLEY. Yes. ‘‘M . C . Yes, sir. R EARNEY ‘‘MR. KUNZIG. Would you give your ‘‘M . K . Are you now a full name, please? member of the Communist Party? R ROWLEY ‘‘MR. CROWLEY. Francis Xavier ‘‘M . C . No. Thomas Crowley. The Thomas was a ‘‘MR. KEARNEY. Do you have any confirmation. other questions? ‘‘MR. KUNZIG. And your present ‘‘MR. KUNZIG. I think we better fol- address, Mr. Crowley? low it up by asking: Have you ever ‘‘MR. CROWLEY. 226 Second Ave- at any time been a member of the nue, New York. Communist Party? R ROWLEY ‘‘MR. KUNZIG. And what is your ‘‘M . C . I refuse to answer age at the present time? that.’’ ‘‘MR. CROWLEY. Twenty-seven. ***** ***** Because of the foregoing, the said Committee on Un-American Activi- ‘‘MR. KUNZIG. Mr. Crowley, when ties was deprived of answers to per- you were in Boston, Mass., that pe- tinent questions propounded to said riod of time prior to going to the Francis X. T. Crowley relative to the University of Michigan that you subject matter which, under Public have just told us about, were you a Law 601, section 121, subsection member of the West End Club of the (q)(2) of the 79th Congress, and Communist Party? under House Resolution 5 of the 83d ‘‘MR. CROWLEY. Well, I can’t an- Congress, the said committee was in- swer that. structed to investigate, and the re- ‘‘MR. KEARNEY. What do you fusal of the witness to answer ques- mean—you can’t answer it? tions, namely: ‘‘MR. CROWLEY. I won’t answer it. ‘‘When you were in Boston, ‘‘MR. KEARNEY. On what grounds? Mass.... were you a member of

2437 Ch. 15 § 20 DESCHLER’S PRECEDENTS

the West End Club of the Com- tion directing the Speaker to cer- munist Party? ‘‘Have you ever been associated tify a report citing a witness in with any members of the West End contempt. Club of Boston? ‘‘Have you ever at any time been a PROCEEDINGS AGAINST MARTIN POPPER member of the Communist Party?’’ which questions were pertinent to MR. [FRANCIS E.] WALTER [of Penn- the subject under inquiry, is a viola- sylvania]: Mr. Speaker, I offer a privi- tion of the subpena under which the leged resolution (H. Res. 374) and ask witness had previously appeared, for its immediate consideration. and his refusal to answer the aforesaid questions deprived your com- The Clerk read the resolution, as fol- mittee of necessary and pertinent lows: testimony, and places the said wit- Resolved, That the Speaker of the ness in contempt of the House of House of Representatives certify the Representatives of the United report of the Committee on Un- States. American Activities of the House of § 20.6 The House agreed to a Columbia H. REPT. No. 2457, citing privileged resolution direct- Lloyd Barenblatt in contempt for re- ing the Speaker to certify to fusing to testify before the Com- the U.S. Attorney a report mittee on Un-American Activities. citing a witness in contempt For related court proceedings, see for refusing to answer ques- Gojack v United States, 280 F2d 678 (D.C. Cir. 1960), rev’d sub nom., tions at an investigative United States v Russell, 369 U.S. 749 hearing. (1962), wherein the court, in revers- On Sept. 3, 1959,(10) the House ing defendant’s conviction, held that by voice vote approved a resolu- a grand jury indictment under the contempt statute, 2 USC § 192, must 10. 105 CONG. REC. 17934, 17935, 86th state the subject matter under in- Cong. 1st Sess. See also, for exam- quiry at the time of defendant’s re- ple, 101 CONG. REC. 11521, 84th fusal to answer the committee’s Cong. 1st Sess., July 26, 1955, for questions, so as to enable courts to the voice vote approval of H. Res. determine the pertinency of the 315, directing the Speaker to certify questions. See also Popper v United to the U.S. Attorney for the District States, 306 F2d 290 (D.C. Cir. 1962), of Columbia H. REPT. No. 1406, cit- wherein the defendant’s conviction ing John T. Gojack, in contempt for was reversed because the indictment refusing to testify before the Com- had insufficiently set forth the ques- mittee on Un-American Activities; tion under inquiry. And see and 100 CONG. REC. 11613, 83d Barenblatt v United States, 240 F2d Cong. 2d Sess., July 23, 1954, for the 875 (D.C. Cir. 1957), vacated and voice vote approval of H. Res. 666, rem’d, 354 U.S. 930, 252 F2d 129 directing the Speaker to certify to (1958), aff’d., 360 U.S. 109 (defend- the U.S. Attorney for the District of ant’s conviction upheld).

2438 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20

Representatives as to the refusal of tion of the privilege of the House and Martin Popper to answer questions by direction of the Committee on Un- before a duly constituted sub- American Activities I submit a privi- committee of the Committee on Un- leged report (Rept. No. 2306). American Activities, together with all of the facts in connection there- The Clerk read as follows: with, under the seal of the House of PROCEEDINGS AGAINST JEREMIAH Representatives, to the United STAMLER States attorney for the District of Columbia, to the end that the said [Pursuant to Title 2, United States Martin Popper may be proceeded Code, Sections 192 and 194] against in the manner and form provided by law.... The Committee on Un-American Activities, as created and authorized THE SPEAKER: (11) The question is on by the House of Representatives, the resolution. through the enactment of Public Law The resolution was agreed to. 601 of the 79th Congress, section A motion to reconsider was laid on 121, subsection (q)(2), and under the table. House Resolution 8 of the 89th Con- gress, duly authorized and issued a subpena to Jeremiah Stamler. The Refusal to Answer Questions subpena directed Jeremiah Stamler and Departure Without Leave to be and appear before the said Committee on Un-American Activi- § 20.7 A committee filed a priv- ties, of which the Honorable Edwin E. Willis is chairman, or a duly ap- ileged report citing a witness pointed subcommittee thereof.... in contempt for his failure to This subpena was duly served as answer questions and his de- appears by the return thereon made by Neil E. Wetterman, who was duly parture without leave. authorized to serve it. The return of On Oct. 18, 1966,(12) the Com- service of said subpena is set forth in words and figures as follows: . . . mittee on Un-American Activities The said Jeremiah Stamler, sum- offered a privileged report citing moned as aforesaid, appeared and Dr. Jeremiah Stamler in contempt was called as a witness on May 27, for his refusal to answer questions 1965, to give testimony, as required by the said subpena, at a meeting of and his departure without leave. a duly authorized subcommittee of MR. [EDWIN E.] WILLIS [of Lou- the Committee on Un-American Ac- isiana]: Mr. Speaker, I rise to a ques- tivities at the Old U.S. Court of Ap- peals Building in Chicago, Ill. He 11. Sam Rayburn (Tex.). was accompanied by his counsel, Al- bert E. Jenner, Jr., and co-counsel, 12. 112 CONG. REC. 27500, 27501, 89th Thomas P. Sullivan, Esquires. Cong. 2d Sess. The House adopted a Having been sworn as a witness, resolution (H. Res. 1062) certifying he was asked to state his full name the contempt on the following day. and residence for the record, to Id. at pp. 27641, 27642. See also which he responded, giving same. Thereafter, the witness was asked Stamler v Willis, 415 F2d 1365 (7th the question, namely: ‘‘Would you Cir. 1969), cert. denied, 399 U.S. 929 state the place and date of your (1970). birth, Dr. Stamler?’’ which question

2439 Ch. 15 § 20 DESCHLER’S PRECEDENTS

was pertinent to the subject under report citing a witness in inquiry. He refused to answer said question and, in addition, stated that contempt for refusal to tes- he would not answer any further tify and his departure with- questions that might be put to him out leave. touching matters of inquiry committed to said subcommittee. On Oct. 18, 1966,(14) the House The witness then departed the by voice vote approved a resolu- hearing room without leave of said tion directing the Speaker to cer- subcommittee. tify a report citing a witness in The foregoing refusals by Jere- ( ) miah Stamler to answer the afore- contempt. 15 said question and to answer any further questions, and his willful depar- PROCEEDINGS AGAINST MILTON ture without leave, deprived the MITCHELL COHEN Committee on Un-American Activi- MR. [EDWIN E.] WILLIS [of Lou- ties of pertinent testimony regarding isiana]: Mr. Speaker, I offer a privi- matters which the said committee was instructed by law and House leged resolution (H. Res. 1060) from resolution to investigate, and place the Committee on Un-American Activi- the said Jeremiah Stamler in con- ties and ask for its immediate consid- tempt of the House of Representa- eration. tives of the United States. The Clerk read the resolution, as fol- Pursuant to resolution of the Com- lows: mittee on Un-American Activities duly adopted at a meeting held Jan- H. RES. 1060 uary 13, 1966, the facts relating to Resolved, That the Speaker of the the aforesaid failures of Jeremiah House of Representatives certify the Stamler are hereby reported to the House of Representatives, to the end 14. 112 CONG. REC. 27448, 27484, that the said Jeremiah Stamler may be proceeded against for contempt of 27485, 89th Cong. 2d Sess. See also, the House of Representatives in the for example, 112 CONG. REC. 27495, manner and form provided by law. 27500, 89th Cong. 2d Sess., for the The record of the proceedings be- voice vote approval of H. Res. 1061, fore the said subcommittee, so far as directing the Speaker to certify to it relates to the appearance of Jere- the U.S. Attorney for the Northern miah Stamler, including the state- District of Illinois H. REPT. No. 2305, ment by the chairman of the subject citing Yolanda Hall in contempt for and matter under inquiry, is set her refusal to testify and her depar- forth in Appendix I, attached hereto ture without leave before the Com- and made a part hereof. mittee on Un-American Activities. Other pertinent committee proceedings are set forth in Appendix II, 15. Prior to approving the resolution, the and made a part hereof.(13) House by a vote of 90 yeas to 181 nays rejected the motion of Mr. § 20.8 The House agreed to a Silvio O. Conte (Mass.), to recommit this resolution to a select committee privileged resolution direct- of seven members to examine the ing the Speaker to certify a sufficiency of the citations. See § 17.2, supra, for the text of this mo- 13. The appendices have been omitted. tion to recommit.

2440 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20

report of the Committee on Un- a privileged report (Reps. No. 2120) American Activities of the House of from the Committee on the Judiciary Representatives as to the refusals of in relation to the conduct of S. Sloan Milton Mitchell Cohen to answer Colt. questions pertinent to the subject ( ) under inquiry before a duly author- THE SPEAKER: 18 The Clerk will ized subcommittee of the said Com- read the report. mittee on Un-American Activities, The Clerk read as follows: and his departure without leave, together with all the facts in connec- PROCEEDINGS AGAINST S. SLOAN tion therewith, under the seal of the COLT House of Representatives, to the United States attorney for the north- Subcommittee No. 5 of the Com- ern district of Illinois, to the end mittee on the Judiciary, as created that the said Milton Mitchell Cohen and authorized by the House of Rep- may be proceeded against in the resentatives through the enactment manner and form provided of Public Law 601, section 121, of the bylaw.... 79th Congress, and under House Resolution 27 and House Resolution THE SPEAKER: (16) The question is on 530, both of the 86th Congress, the adoption of the resolution. caused to be issued a subpena duces The question was taken, and the tecum to S. Sloan Colt, chairman, Speaker announced that the ayes ap- board of commissioners of the Port of peared to have it. New York Authority, 111 Eighth Av- enue, New York, N.Y. The subpena directed S. Sloan Colt to be and ap- Refusal to Produce Materials pear before Subcommittee No. 5 of the Committee on the Judiciary, at § 20.9 A committee filed a priv- 10 a.m. on June 29, 1960, in their ileged report which included chamber in the city of Washington, and to bring with him from the files a contempt citation and facts of the Port of New York Authority relating to the refusal of a certain specified documents, and to testify touching matters of inquiry witness to produce subpe- committed to the subcommittee. naed materials. The subpena was duly served as (17) appears by the return made thereon On Aug. 23, 1960, the Com- by counsel for the committee who mittee on the Judiciary filed a was duly authorized to serve the privileged report relating to the subpena. refusal of a witness to produce S. Sloan Colt, pursuant to the sub- subpenaed materials. pena duly served upon him, appeared before Subcommittee No. 5 of MR. [EMANUEL] CELLER [of New the Committee on the Judiciary on York]: Mr. Speaker, I send to the desk June 29, 1960, to give testimony as required by Public Law 601, section 16. John W. McCormack (Mass.). 121, of the 79th Congress, and by House Resolutions 27 and 530 of the 17. 106 CONG. REC. 17313–15, 86th 86th Congress. However, S. Sloan Cong. 2d Sess. A resolution certi- Colt, having appeared as a witness fying the contemptuous conduct was and having complied in part with the acted on immediately after the report was filed and considered. 18. Sam Rayburn (Tex.).

2441 Ch. 15 § 20 DESCHLER’S PRECEDENTS

subpena duces tecum served upon gotiation, execution, and perform- him by bringing with him part of the ance of the public relations con- documents demanded therein, (1) tracts, policies, and arrangements; failed and refused to produce certain (b) The acquisition, transfer, and other documents in compliance with leasing of real estate; the subpena duces tecum, which doc- (c) The negotiation and issuance of uments are pertinent to the subject revenue bonds; matter under inquiry, and (2) failed and refused to produce certain docu- (d) The policies of the authority ments as ordered by the sub- with respect to the development of committee, which documents are per- rail transportation. tinent to the subject matter under The subcommittee was thereby de- inquiry. prived by S. Sloan Colt of informa- At those proceedings the sub- tion and evidence pertinent to mat- committee chairman explained in de- ters of inquiry committed to it under tail the authority for the subcommit- House Resolutions 27 and 530, 86th tee’s inquiry, the purpose of the in- Congress. His persistent and illegal quiry, and its scope. The sub- refusal to supply the documents as committee also gave to the witness a ordered deprived the subcommittee lengthy and detailed explanation of of necessary and pertinent evidence the pertinence to its inquiry of each and places him in contempt of the category of documents demanded in House of Representatives. the subpena served upon the wit- Incorporated herein as appendix I ness. Notwithstanding these expla- is the record of the proceedings be- nations and notwithstanding a direc- fore Subcommittee No. 5 of the Com- tion by the subcommittee to produce mittee on the Judiciary on the re- the documents required by the sub- turn of the subpenas duces tecum pena, S. Sloan Colt contumaciously served upon S. Sloan Colt and oth- refused to produce the following cat- ers. The record of proceedings con- egories of documents under his con- tains, with respect to Mr. Colt: trol and custody: (1) The full text of the subpena (1) Internal financial reports, in- duces tecum (appendix, pp. 21–22); cluding budgetary analyses, (2) The return of service of the postclosing trial balances, and inter- subpena by counsel for the com- nal audits; and management and financial reports prepared by outside mittee, set forth in words and figures consultants; (appendix, p. 26); (2) All agenda of meetings of the (3) The failure and refusal of the board of commissioners and of its witness to produce documents re- committees; all reports to the com- quired by the subpena issued to and missioners by members of the execu- served upon him (appendix, pp. 23– tive staff; and 25); (3) All communications in the files (4) The explanation given to the of the Port of New York Authority witness as to the authority for, pur- and in the files of any of its officers pose and scope of, the subcommit- and employees including correspond- tee’s inquiry (appendix, pp. 1–20); ence, interoffice and other memoran- (5) The explanation given the wit- dums, and reports relating to: ness of the pertinence of each cat- (a) The negotiation, execution, and egory of requested documents (ap- performance of construction con- pendix, pp. 48–52); tracts; negotiation, execution, and (6) The subcommittee’s direction to performance of insurance contracts, the witness to produce the required policies, and arrangements; and ne- documents (appendix, pp. 52–53);

2442 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20

(7) The failure and refusal of the (4) All communications in the files witness to produce the documents of the Port of New York Authority pursuant to direction (appendix, pp. and in the files of any of its officers 53–54); or employees including correspond- (8) The ruling of the chairman ence, interoffice and other memoran- that the witness is in default (appen- dums, and reports relating to- dix, p. 55). (a) The negotiation, execution, and performance of construction con- OTHER PERTINENT COMMITTEE tracts; negotiation, execution, and PROCEEDINGS performance of insurance contracts, policies, and arrangements; and ne- At the organizational meeting of gotiation, execution, and perform- the Committee on the Judiciary for ance of public relations contracts, the 86th Congress, held on the 27th policies, and arrangements; day of January 1959, Subcommittee (b) The acquisition, transfer, and No. 5 was appointed and authorized leasing of real estate; to act upon matters referred to it by the chairman. On June 8, 1960, at (c) The negotiation and issuance of an executive session of Sub- revenue bonds; committee No. 5 of the Committee on (d) The policies of the authority the Judiciary, at which Chairman with respect to the development of Emanuel Celler, Peter W. Rodino, rail transportation. Jr., Byron G. Rogers, Lester On June 29, 1960, following the Holtzman, Herman Toll, William M. appearance of the aforesaid witness, McCulloch, and George Meader were Subcommittee No. 5 of the Com- present, Subcommittee No. 5 for- mittee on the Judiciary, at an execu- mally instituted an inquiry into the tive session at which all members of activities and operations of the Port the subcommittee were present, of New York Authority under the unanimously resolved to report the interstate compacts approved by contumacious conduct of S. Sloan Congress in 1921 and 1922. At that Colt and others to the Committee on meeting the subcommittee also the Judiciary with the recommenda- unanimously resolved to request the tion that the committee report this following specified items from the conduct to the House of Representa- files of the Port of New York Author- tives together with all particulars ity by letter and to subpena the and recommend that the House cite same documents from the appro- S. Sloan Colt for contempt of the priate officials in the event this in- House of Representatives. formation was not voluntarily sup- At an executive session on June plied: 30, 1960, the Committee on the Judi- (1) All bylaws, organization manu- ciary approved the recommendations als, rules, and regulations; of Subcommittee No. 5 to report to (2) Annual financial reports; inter- the House all details concerning the nal financial reports, including budg- contumacious conduct of S. Sloan etary analyses, postclosing trial bal- Colt and others, and resolved to rec- ances, and internal audits; and man- ommend that S. Sloan Colt be cited agement and financial reports pre- for contempt of the House of Rep- pared by outside consultants; resentatives. (3) All agenda and minutes of MINORITY VIEWS OF REPRESENTATIVE meetings of the board of commis- JOHN V. LINDSAY sioners and of its committees; all reports to the commissioners by mem- I cannot agree with the majority bers of the executive staff; recommendations in the committee

2443 Ch. 15 § 20 DESCHLER’S PRECEDENTS

report. The committee proceeding, § 20.10 The House agreed to a calculated to form a basis for contempt citations under title 2, United privileged resolution direct- States Code, section 192, in my opin- ing the Speaker to certify to ion constitutes an unprecedented, the appropriate U.S. Attor- unlawful, and unconstitutional exercise of Federal authority over a ney a report citing a witness bistate agency, which can and should in contempt for refusing to be avoided. The Port of New York Authority was created by the States produce subpenaed mate- of New York and New Jersey with rials. the consent of Congress to exercise (19) delegations of State, not Federal, On Aug. 2, 1946, the House powers. by voice vote approved a resolu- My objections are threefold: (1) The committee acted without legal 19. 92 CONG. REC. 10748, 79th Cong. 2d authority and exceeded its jurisdic- Sess. See also, for example, 112 tion; (2) the committee lacked a leg- CONG. REC. 1754, 1763, 89th Cong. islative purpose in inquiring into the internal affairs of a bistate agency; 2d Sess., Feb. 2, 1966, for the ap- and (3) the committee inadvisably proval, on a vote of 344 yeas to 28 and without caution initiated an un- nays, of H. Res. 699, directing the precedented exercise of Federal con- Speaker to certify to the U.S. Attor- trol in the delicate area of State sov- ney for the District of Columbia, H. ereignty despite the pleas of the two interested Governors to be accorded REPT. No. 1241, citing Robert M. a hearing before the return fate of Shelton, allegedly of the Ku Klux the subpenas. As a result, and I em- Klan, in contempt for refusal to phasize this point, the documentary produce subpenaed materials to the material, which the witnesses did Committee on Un-American Activi- not produce, was withheld pursuant ties (resolutions against other al- to written instructions from Gov- ernors Rockefeller and Meyner. The leged Klan members follow the witnesses were damned if they com- Shelton resolution. In Shelton v plied with the subpenas and damned United States, 404 F2d 1292 (D.C. if they didn’t. . . . Cir. 1968), cert. denied, 393 U.S. 1024 (1969), the defendant’s convic- MINORITY VIEWS OF REPRESENTATIVE tion was upheld by the appellate JOHN H. RAY court. The same defendant had ear- The majority of the Judiciary Com- lier been convicted of contempt of mittee recommends that contempt ci- Congress following an appearance tations under title 2, United States before the Senate Judiciary Commit- Code, section 192, be issued against the chairman, the executive director, tee’s Subcommittee on Internal Secu- and the secretary of the Port of New rity. United States v Shelton, 148 F York Authority. In my opinion the Supp 926 (D.D.C. 1957), aff’d., 280 action so recommended by the major- F2d 701, rev’d and rem’d, 369 U.S. ity would not only be unprecedented 749 (1962), 211 F Supp 829, aff’d., and unwise as a matter of Federal and State relations, it is not sanc- 327 F2d 601 (D.C. Cir. 1963). tioned by law and should and would See 106 CONG. REC. 17313, 86th be held unconstitutional. Cong. 2d Sess., Aug. 23, 1960, for

2444 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20 tion citing a witness in contempt Representatives to the United States attorney for the District of Columbia for refusal to produce subpenaed to the end that the said person materials. named below may be proceeded against in the manner and form pro- PROCEEDINGS AGAINST RICHARD vided by law; Richard Morford, 114 MORFORD East Thirty-second Street, New York, N.Y. . . . THE SPEAKER: (20) The Clerk will read the resolution. The previous question was ordered. The Clerk read as follows: THE SPEAKER: The question is on the resolution. HOUSE RESOLUTION 752 The question was taken; and on a di- Resolved, That the Speaker of the vision (demanded by Mr. Marcantonio) House of Representatives certify the there were—ayes 166, noes 17. foregoing report of the House Com- So the resolution was agreed to. mittee on Un-American Activities as A motion to reconsider was laid on to the willful and deliberate refusal the table.(21) of the following person to produce before the said committee for its in- Senate Precedents spection certain books, papers, and records which had been duly subpenaed, and to testify under oath con- § 20.11 The Senate agreed to a cerning all pertinent facts relating resolution directing its Presi- thereto; under seal of the House of dent to certify to a U.S. At- the approval, on a vote of 190 yeas torney a report citing a wit- to 60 nays, of H. Res. 606, directing ness in contempt for failing the Speaker to certify to the U.S. At- to appear before an inves- torney for the District of Columbia tigative hearing. H. REPT. No. 2117, citing Austin J. On May 6, 1953,(22) the Senate Tobin, of the Port of New York Au- approved a resolution directing its thority in contempt for refusal to produce subpenaed materials to Sub- 21. See also Morford v United States, 72 committee No. 5, of the Committee F Supp 58 (D.D.C. 1947), aff’d., 176 on the Judiciary (resolutions against F2d 54 (1949), rev’d 339 U.S. 258 other Port Authority officials follow (1950), rem’d, 184 F2d 864, cert. de- the Tobin resolution). nied, 340 U.S. 878 (1950). The Su- preme Court initially reversed de- In United States v Tobin, 195 F fendant’s conviction because defend- Supp 588 (D.D.C. 1961), rev’d 306 ant had not been permitted to ques- F2d 270, cert. denied, 371 U.S. 902 tion four government employees on (1962), defendant’s conviction was the jury panel as to the impact of reversed on appeal, the court holding Executive Order No. 9835 (the ‘‘Loy- that certain documents demanded by alty Order’’) on their ability to render a just and fair verdict. On re- the committee were not within the trial, defendant waived a jury and scope permitted by the pertinent was convicted again. congressional resolution. 22. 99 CONG. REC. 4603, 83d Cong. 1st 20. Sam Rayburn (Tex.). Sess.

2445 Ch. 15 § 20 DESCHLER’S PRECEDENTS

President to certify to a U.S. At- President to certify to a U.S. At- torney a contempt citation. torney a contempt citation.

(23) THE PRESIDING OFFICER: Is there CITATION OF DIANTHA D. HOAG FOR objection to the consideration of the CONTEMPT OF THE SENATE resolution? There being no objection, the resolution (S. Res. 103) was consid- MR. [EARLE C.] CLEMENTS [of Ken- ered and agreed to, as follows: tucky]: Mr. President, I move that the Resolved, That the President of the Senate proceed to the consideration of Senate certify the report of the Com- Calendar No. 3, Senate Resolution 31. mittee on Government Operations of THE PRESIDING OFFICER: (1) The reso- the United States Senate as to the lution will be stated by title for the in- willful default of Russell W. Duke in formation of the Senate. failing to appear to testify before the Senate Permanent Subcommittee on THE LEGISLATIVE CLERK: A resolu- Investigations of the Committee on tion (S. Res. 31) citing Diantha D. Government Operations of the Hoag for contempt of the Senate. United States Senate in response to THE PRESIDING OFFICER: The ques- a subpena, together with all the facts in connection therewith, under tion is on agreeing to the motion of the the seal of the United States Senate, Senator from Kentucky. to the United States attorney for the The motion was agreed to, and the District of Columbia, to the end that Senate proceeded to consider the reso- the said Russell W. Duke may be lution which was read as follows: proceeded against in the manner and form provided by law. Resolved, That the President of the Senate certify the report of the Com- § 20.12 The Senate agreed to a mittee on Government Operations of the United States Senate as to the resolution directing its Presi- refusal of Diantha D. Hoag to an- dent to certify to a U.S. At- swer questions before the Senate torney a report citing a wit- Permanent Subcommittee on Inves- tigations, said refusal to answer ness in contempt for refusing being pertinent to the subject matter to answer questions at an in- under inquiry, together with all the vestigative hearing. facts in connection therewith, under On Feb. 4, 1955,(24) the Senate the Administration of the Internal approved a resolution directing its Security Act and other Internal Se- curity Laws of the Committee on the 23. Alvin R. Bush (Pa.). Judiciary; and 98 CONG. REC. 1311, 24. 101 CONG. REC. 1159, 84th Cong. 1st 82d Cong. 2d Sess., Feb. 25, 1952, Sess. See also, for example, 101 for the voice vote approval of S. Res. CONG. REC. 11678, 84th Cong. 1st 281 and 282, citing Roger Simkins Sess., July 27, 1955, for the voice and Emmitt Warring, respectively, vote approval of S. Res. 129, citing in contempt for refusing to answer Joseph Starobin in contempt for re- questions before the Committee on fusing to answer questions before the the District of Columbia. Senate Subcommittee to Investigate 1. William S. Hill (Colo.).

2446 INVESTIGATIONS AND INQUIRIES Ch. 15 § 20

the seal of the United States Senate President to certify to a U.S. At- to the United States attorney for the District of Columbia, to the end that torney a report citing a witness in the said Diantha D. Hoag may be contempt. proceeded against in the manner and form provided by law. CITATION FOR CONTEMPT OF THE SENATE MR. [GEORGE H.] BENDER [of Ohio]: Mr. President, the Senator from Wis- MR. [ROBERT C.] BYRD of West Vir- consin [Mr. McCarthy], who reported ginia: Mr. President, I ask unanimous the resolution to the Senate, is absent, consent that the Senate proceed to the and he asked me to pursue it for him. consideration of Senate Resolution However, I am sure there is no need ( ) for any speech on the subject. 379. 4 (5) THE PRESIDING OFFICER: The ques- THE PRESIDING OFFICER: The reso- tion is on agreeing to the resolution. lution will be stated by title. The resolution (S. Res. 31) was THE ASSISTANT LEGISLATIVE CLERK: agreed to.(2) A resolution (S. Res. 379) citing Jeff Fort for contempt of the Senate. § 20.13 The Senate agreed to a THE PRESIDING OFFICER: Is there ob- resolution directing its Presi- jection to the present consideration of dent to certify to the appro- the resolution? priate U.S. Attorney a report There being no objection, the Senate citing a witness in contempt proceeded to consider the resolution, as for his refusal to answer follows: questions and his departure S. RES. 379 without leave at an inves- Resolved, That the President of the tigative hearing. Senate certify the report of the Com- (3) On July 19, 1968, the Senate United States v Fort, 443 F2d 670, approved a resolution directing its cert. denied, 403 U.S. 932 (1971), wherein the defendant’s conviction 2. See also United States v Hoag, 142 F was upheld. The right to confront Supp 667 (D.D.C. 1956). The defendant was found not guilty, the court witnesses was not applicable, in the ruling that by answering a limited court’s view, because a legislative in- number of the committee’s questions, quiry is not the same as a criminal she did not waive her privilege proceeding. against self-incrimination under the 4. Parliamentarian’s Note: A resolution fifth amendment. Thus, defendant’s citing a person for contempt for re- subsequent refusal to answer ques- fusing to answer questions is privi- tions regarding possible activities on leged under Senate rules. This par- behalf of the Communist Party did not constitute violation of the statute ticular resolution was called up by making it an offense for a person to unanimous consent because it was refuse to testify (2 USC § 192). not controversial and was considered 3. 114 CONG. REC. 22351, 22361, out of the regular order of business. 22362, 90th Cong. 2d Sess. See also 5. Joseph D. Tydings (Md.).

2447 Ch. 15 § 20 DESCHLER’S PRECEDENTS

mittee on Government Operations of On May 5, 1969,(7) the Senate the United States Senate on the appearance of Jeff Fort before the Sen- agreed to a resolution directing its ate Permanent Subcommittee on In- President to certify to a U.S. At- vestigations of the Committee on torney a contempt citation. Government Operations on July 9, 1968, in Washington, District of Co- CITATION OF ALAN AND MARGARET lumbia, at which he— MCSURELY FOR CONTEMPT OF CON- (1) refused to answer one question, GRESS (2) refused to answer any and all questions that were to be put to him The resolution (S. Res. 191) citing by the subcommittee, Alan and Margaret McSurely for con- (3) departed the hearing without tempt of Congress was considered and leave, such conduct and refusals to answer questions being pertinent to agreed to, as follows: the subject matter under inquiry, to- S. RES. 191 gether with all the facts in connection therewith, under the seal of the Resolved, That the President of the United States Senate, to the United Senate certify the report of the Com- States Attorney for the District of Columbia, to the end that the said 7. 115 CONG. REC. 11278, 91st Cong. Jeff Fort may be proceeded against in the manner and form provided by 1st Sess. See United States v law. . . .(6) McSurely, 473 F2d 1178 (D.C. Cir. 1972), wherein defendant’s convic- THE PRESIDING OFFICER: All time tion was reversed, the trial court has been yielded back. The question is having erred in receiving in evidence on agreeing to Senate Resolution 379. subpenas which were based ulti- On this question, the yeas and nays mately on the fruits of an illegal have been ordered, and the clerk will search and seizure. call the roll. . . . See also 101 CONG. REC. 10916, 84th Cong. 1st Sess., July 19, 1955, The result was announced—yeas 80, for the voice vote approval of S. Res. nays 0, as follows: . . . 135, citing Eugene C. James in con- So the resolution (S. Res. 379) was tempt for refusing to produce subpe- agreed to. naed materials and answer questions; and 99 CONG. REC. 8883, 8884, § 20.14 The Senate agreed to a 83d Cong. 1st Sess., July 15, 1953, resolution directing its Presi- for the voice vote approval of S. Res. dent to certify to a U.S. At- 139, citing Timothy J. O’Mara in torney a report citing wit- contempt for refusing to produce subpenaed materials and answer nesses in contempt for refus- questions. ing to produce subpenaed In United States v O’Mara, 122 F materials. Supp 399 (1954), the defendant was convicted, the court having found, in 6. The excerpts from the report are part, that information sought was omitted. pertinent to the inquiry.

2448 INVESTIGATIONS AND INQUIRIES Ch. 15 § 21

mittee on Government Operations of that they have purged themselves. the United States Senate on the appearance of Alan McSurely and Mar- For example, an argument that an garet McSurely before the Senate unexcused withdrawal from a Permanent Subcommittee on Inves- hearing did not obstruct a com- tigations of the Committee on Gov- ernment Operations on March 4, mittee’s inquiry because the wit- 1969, in Washington, District of Co- ness returned later and answered lumbia, at which they— all questions put to him was held (1) refused to produce books and records lawfully subpenaed to be irrelevant, because a witness does produced before the said sub- not have a legal right to dictate committee, and the conditions under which he will (2) failed to appear or to produce testify.(9) In fact, a witness’ offer the said books and records pursuant to the order and direction of the of proof that he had purged him- chairman with the approval of the self by testifying freely before an- subcommittee before noon on March 7, 1969, together with all the facts in other Senate committee and by connection therewith, under the seal opening union files to its scrutiny of the United States Senate, to the was rejected on the ground that United States Attorney for the Dis- trict of Columbia, to the end that the the defense of purging in criminal said Alan McSurely and Margaret contempt has been abolished in McSurely may be proceeded against the federal courts.(10) A court may, in the manner and form provided by law. however, suspend the sentence of a witness convicted of violating 2 USC § 192 and give him an opportunity to avoid punishment by § 21. Purging Contempt giving testimony before a com- As the following precedents re- mittee whose questions he had re- veal, a witness may be purged of, fused to answer. or freed from, contempt under procedures parallel to those used in citing for contempt: submission Report of a report of the committee and approval of a resolution author- § 21.1 The Committee on Un- izing the Speaker to notify the American Activities reported U.S. Attorney to drop the prosecu- tion. (8) 9. United States v Costello, 198 F2d Courts have not been sympa- 200 (2d Cir. 1952), cert. denied, 344 thetic to witnesses’ contentions U.S. 874 (1952). 10. United States v Brewster, 154 F 8. See 3 Hinds’ Precedents §§ 1670, Supp 126, 135 (D.D.C. 1957), re- 1682, 1684, 1686, 1687, 1689, 1692, versed on other grounds, 255 F2d 1694, 1701, 1702, for earlier prece- 899 (D.C. Cir. 1958), cert. denied, dents relating to purgation. 358 U.S. 842 (1958).

2449