PROCEEDINGS INVOLVING CONTEMPT OF CONGRESS AND ITS COMMITTEES The following report, prepared by the Legislative Reference Service, at the request of the chairman (Mr. Wiley), is presented for the use of the Senate Committee on the Judiciary. The power of Congress and its committees to obtain information deemed necessary to the legislative process and the assertion and exercise of this power has been of extreme interest throughout the history of the national lawmaking body. That Congress considered this power to be inherent in the national legislative body is indicated by the act of May 3, 1798, which reads: SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the Senate, the Speaker of the House of Representatives, a chairman of a committee of the whole, or a chairman of a select committee of either house, shall be empowered to administer oaths or affirmations to witnesses, in any case under their examination. SECTION 2. And be it further enacted, That if any person shall wilfully, absolutely and falsely swear or affirm, touching any matter or thing material to the point in question, whereto he or she shall be thus examined, every person so offending, and being thereof duly convicted, shall be subjected, to the pains, penalties and disabilities, which by law are prescribed for the punishment of the crime of wilful and corrupt perjury. Since that date there has evolved a considerable body of law and precedent which serves as a guide to the Congress and its committees in requiring the production of information and the attendance of witnesses and in dealing with recusancy and contumacy. In recent years the practice has been to leave the punishment of recalcitrant witnesses up to the courts under Revised Statutes 102. CONGRESSIONAL POWER OF INVESTIGATION GENERALLY At the outset it is deemed advisable to list the following 17 guiding principles. Particular attention is invited to Revised Statutes 102,2 which applies to "every person" who fails to appear as a witness or produce the papers requested. 1. The Constitution grants the legislative authority to Congress Any authority of a congressional committee essential to the legislative process must be found in the powers granted to Congress in article I, section 1, and in section 5, clause 2, of the Constitution. SECTION 1. All legislative Power herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives. SECTION 5. * * * Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. 2. The constitutional grants do not spell out express powers of Congress to compel disclosures by means of contempt proceedings It is certainly true that there is no power given by the constitution to either house, to punish for contempts, except when committed by their own members. 11 Stat. 554, Chap. XXXVI. U. S. C. 2: 192-item 10. Nor does the judicial or criminal power given to the United States, in any part, expressly extend to the infliction of punishment for contempt of either house, or any one coordinate branch of the government. Shall we, therefore, decide that no such power exists? It is true that such a power, if it exists, must be derived from implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers. Had the faculties of man been competent to the framing of a system of government which would have left nothing to implication, it cannot be doubted that the effort would have been made by the framers of the constitution. But what is the fact? There is not in the whole of that admirable instrument a grant of powers which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.❜ 3. Power to compel pertinent disclosures is implied in the grant of all legislative power to Congress * there is no provision expressly investing either house with power to make investigations and exact testimony to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental to the legislative function as to be implied. In actual legislative practice power to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution: and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures.* 4. A legislative purpose will be presumed in authorizing a congressional investigation We cannot assume on this record that the action of the Senate was without a legitimate object, and so encroach upon the province of that body. Indeed, we think it affirmatively appears that the Senate was acting within its right, and it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded. The only legitimate object the Senate could have in ordering the investigacion was to aid it in legislating; and we think the subject matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better; but in view of the particular subject matter was not indispensable *6 ** "We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended.” 7 5. A congressional inquiry may be as broad as the legislative purpose requires 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. Many a witness in a judicial inquiry has, no doubt, been embarrassed and irritated by questions which to him seemed incompetent, irrelevant, immaterial, and impertinent. But that is not a matter for a witness finally to decide. Because a witness could not understand the purpose of cross-examination, he would not be justified in leaving a courtroom. The orderly processes of judicial determination do not permit the exercise of such discretion by a witness. The orderly processes of legislative inquiry require that the committee shall determine such questions for itself. Within the realm of legislative discretion, the exercise of good taste and good judgment in the examination of witnesses must be entrusted to those who have been vested with authority to conduct such investigations. 3 Anderson v. Dunn (1821), 6 Wheat. 204, p. 224. 4 McGrain v. Daugherty (1927), 273 U. S. 135, 161. In re Chapman (1897), 166 U. S. 661, 670. McGrain v. Daugherty (1927), 273 U. S. 135, 178. 7 Quoting People v. Keeler, 99 N. Y. 473, p. 178. Townsend v. United States. 95 F. 2d 352, 361. 6. Appeals by persons investigated to courts for aid should be timely and necessary Once information is in the possession of a committee, courts are reluctant to interfere with its use. And so we think the law is settled that if appellant were before the Senate Committee as a witness and were questioned as to matters unrelated to the legislative business in hand, as his bill alleges is true of the messages in question, he would be entitled to refuse to answer; and if, for his supposed contumacy, he were imprisoned, he could secure his release on habeas corpus. And so, also, if a Senate Committee were to attempt to force a telegraph company to produce telegrams not pertinent to the matters the committee was created to investigate, the company could be restrained at the instance of the sender of the telegrams, for as the Supreme Court said in McGrain v. Daugherty * * the decisions in Kilburn v. Thompson * * and Marshall v. Gordon * *, point, in such circumstances, to admissible measures of relief. We are, therefore, of opinion that the court below was right in assuming jurisdiction as to the commission, and if the bill had been filed while the trespass was in process it would have been the duty of the lower court by order on the commission or the telegraph companies or the agents of the committee to enjoin the acts complained of. But the main question we have to decide is in a different aspect. Here, as appears both from the bill and by admission of parties, the committee has obtained copies of the telegrams and they are now physically in its possession; and this means neither more nor less than that they are in the hands of the Senate, for the committee is a part of the Senate * created, as we have seen, by the Senate for the purpose of investigating the subject of lobbying, in aid of proposed legislation. The prayer of the bill is that the committee be restrained from keeping the messages or making any use of them or disclosing their contents. In other words, that if we find that the method adopted to obtain the telegrams was an invasion of appellant's legal rights, we should say to the committee and to the Senate that the contents could not be disclosed or used in the exercise by the Senate of its legitimate functions. We know of no case in which it has been held that a court of equity has authority to do any of these things. On the contrary, the universal rule, so far as we know it, is that the legislative discretion in discharge of its constitutional functions, whether rightfully or wrongfully exercised, is not a subject for judicial interference." * * 7. Congress should enforce its own process *It has been customary for the Senate-and the House as well-to rely on its own power to compel attendance of witnesses and production of evidence in investigations made by it or through its committees. By means of its own process or that of its committee, the Senate is empowered to obtain evidence relating to the matters committed to it by the Constitution. McGrain v. Daugherty *. And Congress has passed laws calculated to facilitate such * investigations.10 Appellant earnestly maintains that the question was not shown to be pertinent to any inquiry the committee was authorized to make. The United States suggests that the presumption of regularity is sufficient without proof. But, without determining whether that presumption is applicable to such a matter, it is enough to say that the stronger presumption of innocence attended the accused at the trial. It was therefore incumbent upon the United States to plead and show that the question pertained to some matter under investigation. * The question of pertinency under sec. 102 [U. S. C. 2: 192] was rightly decided by the court as one of law. It did not depend upon the probative value of evidence. That question may be likened to those concerning relevancy at the trial of issues in court, and it is not essentially different from the question as to materiality of false testimony charged as perjury in prosecutions for that crime. Upon reasons so well known that their repetition is unnecessary, it is uniformly held that relevancy is a question of law. 11 Hearst v. Black, 87 F. 2d 68, 71. 10 Reed v. County Commissioners, 277 U. S. 376, 388. 11 Sinclair v. United States, 279 U. S. 263, 298. 69222 0-56-pt. 3-13 to cover pericen questions in a matter of my within the piradanos of the fetare, of soune mortaines & occtempt of that body, and by the matote tole a 240 made an odense ackost the Uhined States. We grant that Compress could sit divest insed, or ether of its Houses, of the events and interent power to pazish for occremps, in cases to which the wanderer House properly extended bar, because Congress, by the set of 1207, warns to aid each of the Erases in the discharge of its constitutional functone, it does not follow that any delegation of the power in each to punish for ontempt was involved and the statute is not open to objection on that account.15 Where proceedings of the Senate require secrecy, judgment for contempt may be pronounced in secret session. It was also contended in argument that although the Senate might hold secret sessions, they could not in secret session punish a man for a contempt. The court, however cannot perceive any reason why the Senate should not have the maine power of punishing contempts in secret as in open session." 11. Whether or not the witness has purged himself of contempt is for the House of Congress having jurisdiction to decide MacCracken contends that he is not punishable for contempt, because the obstruction, if any, which he caused to legislative processes, had been entirely removed and its evil effects undone before the contempt proceedings were instituted. He points to the allegations in the petition for habeas corpus that he had surrendered all papers in his possession; that he was ready and willing to give any additional testimony which the Committee would require; that he had if Timonsend & United States, 95 F. 2d 361. 18 inclair v. United States, 279 U. 8. 263, 299. 14 e parte Frankfeld, 32 F. Supp. 915. 16 In re Chapman, 156 U7. 8. 661, 671, 672. Iz parte Nugent (1848), 18 Fed. Cas. 483. secured the return of the papers taken from the files by Givven, with his permission; and that he was in no way responsible for the removal and destruction of the papers by Brittin. This contention goes to the question of guilt, not to that of the jurisdiction of the Senate. The contempt with which MacCracken is charged is "the destruction and removal of certain papers." Whether he is guilty, and whether he has so far purged himself of contempt that he does not now deserve punishment, are the question which the Senate proposes to try. The respondent to the petition did not, by demurring, transfer to the court the decision of those questions. The sole function of the writ of habeas corpus is to have the court decide whether the Senate has jurisdiction to make the determination which it proposes.17 12. Members of a committee may plead immunity to prosecution for false arrest of a witness The House of Representatives is not an ordinary tribunal. The defendants set up the protection of the Constitution, under which they do business as part of the Congress of the United States. That Constitution declares that the senators and representatives “shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place." 18 * the plea set up by those of the defendants who were members of the House is a good defence, and the judgment of the court overruling the demurrer to it and giving judgment for those defendants will be affirmed. As to Thompson [the sergeant at arms], the 'judgment will be reversed and the case remanded for further proceedings.19 13. The plea of privilege may be denied to witnesses 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 joint committee established by a joint or concurrent resolution of the two Houses 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.20 We think the resolution and proceedings give no warrant for thinking the Senate was attempting or intending to try the Attorney General at its bar or before its committee for any crime or wrongdoing. Nor do we think it a valid objection to the investigation that it might possibly disclose crime or wrongdoing on his part.21 14. Forcing officers of the executive department to divulge information may be a question of expediency rather than one of authority A certain amount of discretion in making disclosures will ordinarily be exercised by an executive officer [Hinds' Precedents of the House of Representatives * 1907, vol. III, sec. 1738]. "The mischief of the House calling for documents might easily be a very great one * * *"" (sec. 1700). Congress has gone far at times in asserting its authority to investigate activities in the executive department; for examples, the resolution to investigate, in 1792, the failure of the expedition under Major General St. Clair 22 and the creation of a joint committee on the conduct of the war in 1861.2 On the other hand, President Jackson resisted with vigor an attempt of a committee of the House to secure his assistance in an investigation of his administration.24 17 Compare Barry v. United States ex rel. Cunningham, 279 U. S. 597; Henry v. Henkel, 235 U. S. 219; Matter of Gregory, 219 U. S. 210 (Jurney v. MacCracken, 294 U. S. 125, 152). 18 Kilbourn v. Thompson, 103 U. S. 168, 201. 19 Kilbourn v. Thompson, 103 U. S. 168, 205. 20 R. S. 103, U. S. C. 2:193. 21 McGrain v. Daugherty, 273 U. S. 135, 179-180. 22 Hinds', sec. 1725. 23 Hinds', sec. 1728. * Hinds', sec. 1737. See generally Hinds', vol. 6, secs. 404-437. |