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15. The authority of the President to pardon persons punished by either House for contempt has not been determined

This is an interesting question for which there is no settled law. Certainly the intent of Congress should not be permitted to be defeated by the Presidential pardoning power. The pardoning power is limited to relief from undue harshness or evident mistake. Many people have urged that criminal contempts should not be held within the pardoning power because it would tend to destroy the independence of the judiciary. Undoubtedly the courts would differentiate between the pardoning of the contempt of a committee when prosecuted under the statutes and the pardoning of a contempt when prosecuted before the bar of the House or Senate as an enforcement in their own right. 16. The life of a House committee expires with a Congress but that of a Senate committee depends upon its authorization

* It is said in Jefferson's Manual: "Neither House can continue any portion of itself in any parliamentary function beyond the end of the session without the consent of the other two branches. When done, it is by a bill constituting them commissioners for the particular purpose." But the context shows that the reference is to the two houses of Parliament when adjourned by prorogation or dissolution by the King. The rule may be the same with the House of Representatives whose members are all elected for the period of a single Congress; but it cannot well be the same with the Senate, which is a continuing body whose members are elected for a term of six years and so divided into classes that the seats of one-third only become vacant at the end of each Congress, twothirds always continuing into the next Congress, save as vacancies may occur through death or resignation.

Mr. Hinds in his collection of precedents says: "The Senate, as a continuing body, may continue its committees through the recess following the expiration of a Congress"; and, after quoting the above statement from Jefferson's Manual, he says: "The Senate, however, being a continuing body, gives authority to its committees during the recess after the expiration of a Congress." So far as we are advised, the select committee having this investigation in charge has neither made a final report nor been discharged, nor has it been continued by an affirmative order. Apparently its activities have been suspended pending the decision of this case. But, be this as it may, it is certain that the committee may be continued or revived now by motion to that effect, and, if continued or revived, will have all its original powers.25

17. Investigatory powers are granted to the standing committees of the Senate by Public Law 601, Seventy-ninth Congress

SEC. 134. (a) Each standing committee of the Senate, including any subcommittee of any such committee, is authorized to hold such hearings, to sit and act at such times and places during the sessions, recesses, and adjourned periods of the Senate, to require by subpena or otherwise the attendance of such witnesses and the production of such correspondence, books, papers, and documents, to take such testimony and to make such expenditures (not in excess of $10,000 for each committee during any Congress) as it deems advisable. Each such committee may make investigations into any matter within its jurisdiction, may report such hearings as may be had by it, and may employ stenographic assistance at a cost not exceeding 25 cents per hundred words. The expenses of the committee shall be paid from the contingent fund of the Senate upon vouchers approved by the chairman.

II. HOUSE PRECEDENTS-PUNISHMENT AT THE BAR

An examination of precedents of the House,26 relating to contempt proceedings before the bar of the House, indicates an established procedure having not only general uniformity, but also considerable

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flexibility. For convenience these precedents are outlined under the following 14 headings:

1. Answers at the bar

Witnesses arraigned at the bar of the House have at times been permitted to answer orally 27 and not under oath;28 have at other times been required to answer in writing and under oath,29 or in writing but not sworn to,30 or having answered in writing, have been permitted to make oral statements; have been permitted to file an amended answer,* ,32 and present an answer which in fact was an argument. 33

It is for the House, not the Speaker, to determine whether or not a person arraigned for contempt shall be heard before being ordered into custody.34

2. Confinement

A person adjudged in contempt may, under order of the House (1) be continued in close custody by the Sergeant at Arms,35 (2) be committed to the common jail of the District of Columbia,36 or (3) be kept by the Sergeant at Arms in close confinement in the guardroom of the Capitol Police. 37

3. Continuance

A continuance may be granted to permit the witness to consult counsel and prepare his answer. 38

4. Costs

The payment of costs has been required as a condition to discharge.39 The House has assumed the expenses of Members defending suits brought by persons punished for contempt.40

5. Counsel

The general practice has been to permit a recusant witness to have the assistance of counsel.11

6. Examination

A person on trial at the bar of the House for contempt has been given permission to examine witnesses, while examination for the House was done by a committee.42

During the trial before the bar of the House, Members were examined in their places. 42

7. Habeas corpus

The Sergeant at Arms asks for and receives instructions from the House upon being served with a writ of habeas corpus. 43

27 Sec. 1669.

28 Sec. 1688.

2 Secs. 1670, 1684.

30 Sec. 1687.

al Sec. 1686.

32 Sees. 1673, 1693.

33 Sec. 1689.

34 Sec. 1684.

35 Secs. 1669, 1684.

26 Secs. 1672, 1690.

* Sec. 1686.

3 Secs. 1668 and 1695.

3 Secs. 1677, 1680, 1688.

40 Secs, 1716 and 1717.

41 Secs. 1667 and 1696.

42 Sec. 1668.

43 Sec. 1691.

8. Privilege

A witness has been held in contempt of the House and imprisoned for refusing to divulge information which, he claimed, involved transactions privileged by reason of an attorney-client relationship." (In this case the witness, Stewart, later brought an action of trespass for assault and false arrest against Speaker Blaine and Sergeant at Arms Ordway but the court held that an order of the House was complete protection to both (Stewart v. Blaine (1874), 1 MacArthur 453).) 9. Procedure-Arrest, arraignment, and trial in the House

It is important to realize that the House of Representatives has the power, for which there is ample precedent, to conduct its own trial of the contempt of witnesses before committees. This jurisdiction has been used in the past against recalcitrant parties, and although not frequently assumed of late, it is nevertheless a selective course of action. In recent years it has been more common practice to deliver those charged with contempt to the proper tribunals for appropriate criminal action. The press of legislative affairs has prompted the members to use the latter procedure. This trend has resulted perhaps in a more ordinary and uniform dispensation of justice, and moreover it has relieved a busy legislative body of an additional task, but both have been at a sacrifice. Undoubtedly the prestige of the legislative branch of the Government would be enhanced if it occasionally handled the punishment of contempt in its own right. Forceful and determinate action to substantiate the power of Congress to compel disclosure of information pertinent to the legislative processes would be a salutary caveat to prospective malefactors. It is believed that the present is a propitious time for the House and the Senate to energetically enforce its prerogatives.

Appendix 1, attached hereto, is a sample case of the procedure of arrest, arraignment, and trial in the House. Close scrutiny of the procedural steps illustrates that the power of the House to conduct a trial is plenary and that the only inhibiting factor, from both the procedural and substantive legal aspects, is the will of the Members expressed by their votes.

10. Prosecutions in the courts

The case of a recalcitrant witness in custody, pursuant to a resolution requiring the Sergeant at Arms of the House to commit him to the common jail, has been certified by the Speaker to the district attorney of the District of Columbia. Upon indictment, the witness was delivered to the officers of the court.45

11. Purgation

A witness has been deemed to have purged himself of contempt(1) By respectful and sufficient answers at the bar of the House.46 (2) By showing that he was under heavy local bonds which, he was advised, would be forfeited if he left the jurisdiction and that he was willing to appear and answer.47

(3) By showing that he left town, contrary to the order of the House, under a misapprehension or misunderstanding."

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(4) By showing that he had appeared before the committee, testified, and paid the costs growing out of the attachment.49

(5) By a letter of apology where a disrespectful answer was submitted upon arraignment.50

(6) By promising to respond 51 although he may be retained in custody until the committee reports the purgation.52

12. Record

A committee in reporting contumacy included a transcript of the testimony.53

In reporting the contempt to the House, the committee should show that the testimony or papers required are material, and it should present copies of the subpenas.52

13. Service

In the absence of the Sergeant at Arms, his deputy has been empowered by special resolution to execute the orders of the House and to arrest a recalcitrant witness. 54 The Sergeant at Arms has, however, without specific authorization merely endorsed on a subpena a deputation to another. The form of the resolution may command the Sergeant at Arms or his special messenger to execute the order or make the arrest.55

(NOTE: In Massachusetts, a warrant for arrest directed only to the Senate Sergeant at Arms was held by Chief Justice Shaw to be limited to the person named and therefore could not be served by a deputy.56

14. Subpena

The validity of a subpena signed only by the chairman of a House committee has been sustained 57 and verbal defects will not avail to defeat contempt proceedings.58

15. Warrant-return

The warrant of the Speaker is as follows:

To A. J. Glossbrenner, Sergeant at Arms of the House of Representatives: You are hereby commanded to arrest John W. Wolcott, wheresoever he may be found, and have his body at the bar of the House forthwith to answer as for a contempt in refusing to answer a proper and competent question propounded to him by a select committee of the House of Representatives, in pursuance of the authority conferred by the House upon said committee.

Witness my hand and the seal of the House of Representatives of the United States at the city of Washington this 11th day of February 1858.

[L. S.] Attest:

J. C. ALLEN, Clerk.

JAMES L. ORR, Speaker.

Verbal return by the House Sergeant at Arms, having the witness in custody, has been accepted.59

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IL SENATE PRECEDENTS

On the Senate side here have not been as many instances of amemora to punish vitness to the bar of the Senate for recusancy. In the any story of the Government, The House conducted most of more important cns. now the Senate is the

The flowing review of precedents is taken Iam vicine 3 of Ends Precedents of the House and indicates that the Senate has boxed to the House for guidance in dealing with Contumacicus witnesses #

1. Con trement

The Senate has ordered the roofnement of a contumacious witness in the common jail of the Instrict of Columbia "

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42

A prisoner arrested by a deputy of the Sergeant at Arms was formbly taken from his cistody in Massachusetts by a deputy sheriff armed with & writ of habeas corpos. The supreme court of that State held that the authority granted in the warrant, which was directed to the Sergeant at Arms, could be exercised only by that offser.

3. Procedure arrest, arraignment, and trial in the Senate

For an illustration of this procedure, see appendix 2. The remarks under II-9. **Procedure arrest, arraignment, and trial in the House,” are applicable to this corresponding section for the Senate. 4. Purgation

Upon satisfactory statement of the reason for his failure to comply with the commands of a committee of the Senate, a witness has been discharged." In at least one instance, a witness has been discharged on the ground that no beneficial result could be obtained from forcing him to testify inasmuch as his testimony could not be relied on.“

5. Subpena

Return by the Sergeant at Arms on a subpena served by his deputy has not availed to test the legality of the arrest of a witness.

IV. INVESTIGATIONS INVOLVING MATTERS ALREADY BEFORE THE COURTS

Two Supreme Court cases. Kilbourn v. Thompson ((1880) 103 U. S. 168), and Marshall v. Gordon ((1917) 243 U. S. 521), furnish some indication of the attitude of the judicial branch where an investigation by a committee of Congress cuts across or involves matters pending before the courts.

The power of congressional committees to invade the judicial field is an undecided question. The courts will not permit a committee to sit in judgment over people or issues when the identical case or controversy is pending before a court of competent jurisdiction. The rule has been laid down that the implied power of legislative

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