assemblies to deal with contempt is the least possible power adequate to the end proposed. The courts seem disposed to apply this rule when a congressional inquiry becomes enmeshed with the judicial machinery. The question is open as to what the congressional power is after the legal processes have been exhausted. There seems to be no reason or precedent against investigations involving matters which have been finally decided by the courts. It is the interference with the court systems while operating that is abhorrent to our theory of jurisprudence. Appendix 3 contains a brief digest of the issues and decisions in the two controlling Supreme Court cases of Kilbourn v. Thompson and Marshall v. Gordon. V. PRIVILEGE AGAINST INCRIMINATION Section 859 of the Revised Statutes, as amended,66 reads: No testimony given by a witness before either House, or before any committee of either House, or before any joint committee established by a joint or concurrent resolution of the two Houses of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege. The act of June 24, 1857,67 which preceded the act of January 24, 1862,68 from which Revised Statute 859 stems, granted immunity in such broad terms that persons who had committed grave crimes against the Government welcomed and even sought a chance to appear before an investigating committee and make general disclosures, thereby immunizing themselves against criminal prosecution.69 Congress apparently intended by the act of January 24, 1862, to close this loophole and require that the witness claim privilege. Judge Hoehling, of the old Supreme Court of the District of Columbia, ruled in accordance with this intent in the trials of Secretary Albert B. Fall and Mr. Edward L. Doheny for conspiracy to defraud the Government in the leasing of the naval oil reserve at Elk Hill, Calif. The attempt of the defense, under Revised Statute 859, to prevent the introduction of testimony given before the Senate investigating committee was rejected on the ground that Fall and Doheny waived protection of this section by testifying voluntarily; in other words, they had not claimed privilege. As the purpose of the section was to prohibit forced self-incrimination, to argue that it immunized the witness against future use of all testimony in a criminal proceeding whether given voluntarily or involuntarily would confer upon him greater immunity than is afforded by the fifth amendment.70" Immunity statutes, such as Revised Statute 859, have been enacted for the purpose of obtaining evidence which could not otherwise be obtained because of the prohibition of the fifth amendment of the Constitution against compelling a person "in any criminal case, to be a witness against himself." The theory upon which these provisions have been predicated is that immunity against subsequent prosecution 66 52 Stat. 943; U. S. C. 28:634. 6711 Stat. 155. 6 12 Stat. 333. See the debate on H. R. 219, 37th Cong., 2d sess., Globe, pp. 428-431. 70 See United States Dail for December 1 (p. 15) and 2, 1926 (p. 7) by the Government should equal the protection furnished by the amendment against compulsory self-incrimination where a witness is required to answer questions which might incr minate him. While there are no cases decided under Revised Statute 859, United States v. Monia" has held that a similar immunity statute 72 without a clause requiring the witness to claim his privilege against self-incrimination precludes subsequent prosecution of the witness whether he claimed privilege at the time or not.73 Earlier the Supreme Court had held in Counselman v. Hitchcock 74 that nothing short of absolute immunity would justify compelling the witness to testify if he claimed his privileges. It is necessary that this provision be given a broad construction in favor of the right which the fifth amendment was intended to secure, the object being to insure a witness, in any investigation in Federal proceedings, against being compelled to give testimony which might tend to incriminate him. It is impossible that the meaning of the constitutional provision can only be, that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. 75 Attention is invited to S. 634, of the Seventy-ninth Congress, which sought to rectify this situation by amending various immunity statutes, including Revised Statute 859, to require that the witness claim his privilege against self-incrimination (p. 11). From the foregoing it is apparent that an investigatory committee faces a delicate question of means whereby a proper relationship can be achieved for the three interests involved: The interest of Congress in obtaining information for legislative purposes; the interest of the witness in maintaining his rights under the Constitution; and the interest of the executive department in prosecuting violations of criminal law. It is obviously possible for a committee to impede greatly later activities of the executive by injudicious use of the power to summon witnesses and compel disclosures, and this possibility is enhanced by the Monia case, which indicates that a witness need not claim privilege to immunize himself from future prosecution. It appears that this decision places committees in the same position in which they found themselves after the act of June 24, 1857, when rogues sought appearance before investigating committees for the purpose of foreclosing future criminal prosecutions. VI. PRIVILEGE OF AN ATTORNEY The right of an attorney to raise personally the plea of privilege before a congressional committee is controlled largely by Jurney v. McCracken 76 and by Revised Statutes 102, 103, and 104.77 The provisions of the Revised Statutes are as follows: SEC. 192. REFUSAL OF WITNESS TO TESTIFY. Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint 71 (1942) 317 U. S. 424. 72 U.S. C. 15: 32. 73 P. 426. 74 (1892) 142 U. S. 517. 75 See the Constitution of the United States of America (Annotated), 1938, S. Doc. 232, 74th Cong., p. 629 quoting from Counselman v. Hitchcock (p. 562). 294 U. S. 125. 77 U. S. C. 2: 192, 193, and 194. or concurrent resolution of the two Houses of Congress, or any comme d either House of Congress, willfully makes default, or who having spand refuses to answer any question pertinent to the question under molly deemed guilty of a misdemeanor, punishable by a fine of not more than $1000 nor less than $100 and imprisonment in a common jail for not less than the monta nor more than twelve months (Revised Statutes sec. 102: June 22 18 52 Stat. 942). SEC. 193. PRIVILEGE OF 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 Colom o t any joint committee established by a joint or concurrent resolution of the Houses of Congress, or by any committee of either House upon the grDUNG his testimony to such fact or his production of such paper may him or otherwise render him infamous (Revised Statutes, es 1938, ch. 594, 52 Stat. 942). SEC. 194. WITNESSES FAILING TO TESTIFY OR PRODUCE RECORDS. Whenever a witness summoned as mentioned in section 18 feve to testify or fails to produce any books, papers, records, or dormetta w role or whenever any witness so summoned refuses to answer any question perdent to the subject under inquiry before either House, or any just emerge mixir lished by a joint or concurrent resolution of the two Hose of C committee or subcommittee of either House of Congress and the far fen failure or failures is reported to either House while Congress 2 1 weun gru Congress is not in session, a statement of fact constituting such falina murat to and filed with the President of the Senate or the Speace of the Holy sma be the duty of the said President of the Senate or Speace of the Hou case may be, to certify, and he shall so certify, the statement of lura dormant under the seal of the Senate or House, as the case may be to the worrie United States attorney, whose duty it shall be to bring the mare efore the grand jury for its action (Revised Statutes, sec. 104; Ju3 13 184 kok, 49 Stat. 2041; June 22, 1938, ch. 594, 52 Stat. 942. The facts of Jurney v. MacCracken indicate that the sun will bet concern itself with a plea of privilege rain 4 dofing an author deg congressional investigation until that question has been center on the House of Congress concerned. See appendix 4 for fara ti and decision.) In connection with the statutes and the case cited, ecrate on should be given to the following propositions: (a), generally speaking, an attorney at law is not allowed to dim lige confential communications, information, and secrets mane v hi by the client or acquired during their professional reation on ᅡ e is authorized to do so by the client himself (b) Arnold v. Chesebrough infers that this is not an abelite privilege. In this case an attorney's refusal to produce evidence wza upheld on the ground that there was nothing to show that it was impossible to serve the subpena duces tecum on the person from whom the attorney received the correspondence. 80 (c) U.S. v. Philadelphia and R. Ry. Co.: Records cannot be cOKLĄ with immunity or privilege merely by depositing them in the legal department of a company. (d) Bowles v. Insel: 81 Records required by law to be kept are not privileged.82 (e) Wilson v. U. S.: A person has no privilege, constitutional or otherwise, against the compulsory production of records beot212 D another.84 (f) McMann v. Engel: 85 There are exceptions to the above rule where a relationship raising a privilege exists-such as attorney and client. VII. RECENT CITATIONS Within recent years the following resolutions have been introduced for the purpose of certifying to the United States attorney for the District of Columbia contumacious acts: House Resolutions 446, 452, 457, 458, 459, Seventy-sixth Congress. See appendix 5 for a résumé of the proceedings under and the channelling of House Resolution 104, Eightieth Congress, concerning the contemptuous conduct of Gerhart Eisler. VIII. RIGHTS OF A WITNESS There are few safeguards for the protection of a witness before a committee. His treatment oftentimes is dependent upon the skill and attitude of the chairman and members of the committee. While an immunity statute (Revised Statute 859) protects him from forced self-incrimination, he has no protection against embarrassment (Revised Statute 103), and as committees are not bound by rules of evidence, a hapless witness may find objections futile. The following statement by Professor McGeary in his dissertation "The Developments of Congressional Investigative Power" 86 indicates some problems: Procedure in hearings: The procedure has been the object of criticism both by employed in the hearings, perhaps more than any other aspect of investigations, eust be admitted that, in many inwitnesses and by outside observers. It maha models of an effective stances, the hearings can by no means be considered as Stamination of witnesses and that the tone of the proceea tationers are much to be desired. Too frequently the investigators have ignoculare the ings often leaves andered the need for a careful preparation. The hearings are impromptu. The ques The witnesses, because the examination is fumbling, more willing to risk being held in contempt of the committee. They therefore, to persiflage, and they parry the questions. Indeed, some of inanities in the records of the hearings are incredible. They have to be seen ill-informed. be believed. cedure and basic rules of evidence might substantially improve and While it is possible that the adoption of uniform standards of profacilitate the work of an investigatory committee, practicing lawyers could point out from court experience that these improvements would not necessarily be an ironclad safeguard or assurance that investigations would be conducted on a higher plane or that a witness would be handled in a judicious and fair manner. courtesy used in conducting an interrogation would probably bear a more direct relationship to the individual membership of the com The wisdom and mittee than to any rules and procedures which might be adopted. However, be that as it may, much confusion and ill feeling might be avoided by the adoption in each house of the Congress of standard rules and procedures for the guidance of committees conducting investigations. As a minimum, the right of cross-examination should 65 (1936) 16 F. Supp. 446, 448. 66 Pp. 74-79. uesa be considered.87 While the administration of an oath to a witness adds dignity to the proceeding, it is not necessarily essential. An oath, if administered, however, comes within the provision of Revised Statute 101,88 and perjury is punishable under section 125 of the Criminal Code. 89 IX. INVESTIGATION OF THE EXECUTIVE BRANCH While there is a respectable body of general case law and precedent on the investigatory power of Congress and its committees, that phase dealing with the extent of congressional power with respect to investigations of the executive branch is singularly lacking in definitive precedents.90 This study supports generally the following propositions: (a) That the scope of a congressional investigation is as broad as the legislative purpose requires.91 (b) That the subpena of a duly authorized investigatory committee of Congress is no more restricted than that of a grand jury.92 (c) That the right of a legislative body to demand and receive, from the executive branch, information and papers which it deems pertinent to the legislative process is established.93 (d) That this established right has been vigorously asserted at times by the Congress of the United States against the President and executive officers.94 (e) That the President and the executive officers have vigorously defended against such asserted right on the basis of the fundamental doctrine of separation of powers of the executive, legislative, and judicial branches of the Federal Government. 94 (That the Congress has merely asserted its right to obtain information without attempting to enforce it.94 (g) That the Congress has never attempted to invoke against executive officers the law which provides that every person who, having been summoned by either House to give testimony or to produce papers upon a matter under inquiry, willfully makes default, is criminally liable.95 ling, 1. Authority and purpose They I some of The primary purpose of a committee of Congress in conducting an o be seen estigation is to assist the function of lawmaking. A secondary pose of almost equal importance is fulfilled by investigations ds of pro- eby Congress supervises and checks activities in the executive prove and rtments. In the latter type of investigation two questions of g lawyers importance arise: How far can Congress go in requiring inforon from the executive branch of the Government? To what at does the separation of powers of the Federal Government ect the executive officers? 96 To date these questions have not vements ace that witness om and bear a e com opted. ht be ndard ee sec. 4 of this section. e sec. 1 of this section. se sec. 3 of this section. ee sec. 1 of this report. jee McGeary, Development of Congressional Investigative Power, p. 102. |