if the BC had heen fed 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 spents of the committee to enjoin the acts complained of. But the main constans we have to decide is in a different aspect. Here, as appears both from the bus and by sdmasson of parties, the committee has obtained copies of the teleprams and they are now physically in its possession; and this means neither more nor less than that they are in the hat is of the Senate, for the committee is a part of the Senate * created, as we have seen, by the Senate for the purpose of investasting 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 discnsing their contents. In other words, that if we find that the method adopted to obtain the telegrams was an invasion of appelants jersi rights we should say to the committee and to the Senate that the enntents 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 raje, so far as we know it. is that the legislative discretion in discharge of its eonstitutional functions whether rightfully or wrongfully exercised, is not a subject for judicial interference (Hearst v. Black (1936) 87 F. 2d 68, 71).

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. Dougherty * *. And Congress has passed laws calculated to facilitate such investigations. (Reed y. County Commissioners (1928) 277 C. S. 376, 388. See siso the statement of Mr. McCormack, Cong. Rec. 94:5710.)

Congress has the power to prescribe the duties of the citizens of the United States, including the duty to return from abroad to give testimony (Blackmer v. U. Š. (1932) 284 U. S. 421).

8. Pertinency of the evidence is not determined by its probative value

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. Č. 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. (Sinclair v. U. S. (1929) 279 U. S. 263, 296–297, 298. (See also Morford v. U. S. (1949) 176 F. 2d 54.]

9. The "Do-you-know-a-certain-person" question, without more, is of doubtjl pertinency

Committees may and do obtain vague information and receive hearsay evidence from which they form well-grounded suspicions that evils exist at which legislation should be aimed. That is to say, committee's conclusions that corrective legislation should be enacted need not be reached on the basis of relevant and pertinent evidence only. The precision of court procedure is not required. It may often be proper, justifiable, and ultimately helpful in the accomplishment of its investigative purposes for a Congressional committee to address to witnesses questions which it cannot demonstrate to be pertinent. But in branding a refusal to answer as a misdemeanor, Congress was careful to provide that the question must be "pertinent to the question under inquiry." It follows that, when a witness refuses to answer a question and the government undertakes to convict him of a criminal offense for not answering, then pertinency must be established. Presumption or possibility of pertinency will not suffice (Bowers v. U. S. (1953) 202 F. 2d 447, 448).

10. Witnesses may be punished for mistakes of law in refusing to answer ** A witness may exercise his privilege of refusing to answer questions [before a committee] and submit to a court the correctness of his judgment in so doing, but in the event he is mistaken as to the law it is no defense, for he is bound rightly to construe the statute *** Beyond this, he must conform to the procedure of the committee and respond to its questions *** He cannot be heard to plead justification and, hence, lack of willfulness in defiantly leaving a hearing because he does not like the questions propounded to him-remedy by objection and refusal to answer both being open to him (Townsend v. U. S. (1938) 95 F. 2d 352, 361).

There is no merit in appellant's contention that he is entitled to a new trial because the court excluded evidence that in refusing to answer [the committee] he acted in good faith on the advice of competent counsel. The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and section 102 made it appellant's duty to answer. He was bound rightly to construe the statute (Sinclair v. U. S. (1929) 279 U. S. 263, 299).

11. Contumacy may be punished either by Congress or as a misdemeanor under United States Code 2: 192 (Rev. Stat. 102)

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 or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

This statute cannot be qualified by permitting a witness to set conditions before he will testify (Eisler v. U. S. (1948) 170 F. 2d 273). "Wilful" does not involve, necessarily, a criminal intent (Barsky v. U. S. (1948) 167 F. 2d 241). It means no more than that a person charged with the duty of testifying knows what he is doing and not that he must suppose he was breaking the law (Fields v. U. S. (1947) 164 F.2d 97).

The authority to punish under this section_rests with Congress and its committees and not with its employees. See Ex parte Frankfeld (1940) 32 F. Supp. 915.

Counsel contend *** that the law delegates to the District of Columbia Criminal Court the exclusive jurisdiction and power to punish as contempt the acts denounced, and thus deprives the Houses of Congress of their constitutional functions in the particular class of cases. ***

The refusal to answer pertinent questions in a matter of inquiry within the jurisdiction of the Senate, of course, constitutes a contempt of that body, and by the statute this is also made an offence against the United States.

*** We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but, because Congress, by the act of 1857, sought to aid each of the Houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved; and the statute is not open to objection on that account (In re Chapman (1897) 166 U. S. 661, 671, 672).

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 same power of punishing contempts in secret as in open session *** (Ex parte Nugent (1848) 18 Fed. Čas. 483).

12. Whether or not the witness has purged himself of contempt is for the House of Congress having jursidiction 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 might require; that he had 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 questions 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. (Compare Barry v. U. S. ex rel. Cunningham (1929) 279 U. S. 597; Henry v. Henkel (1914) 235 U. S. 219; Matter of Gregory (1911) 219 U. S. 210 (Jurney v. MacCracken (1935) 294 U. S. 125, 152).)

18. 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” (Kilbourn v. Thompson (1881) 103 U. S. 168, 201).

***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 (Ibid., p. 168).

14. 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 (R. S. 103, U. S. C. 2:193).

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 (McGrain v. Daugherty (1927) 273 U. S. 135, 179–180). [See sec. III of this memorandum.]

15. 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 (Hinds', sec. 1725) and the creation of a joint committee on the conduct of the war in 1861 (Hinds', sec. 1728).

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. (Hinds', sec. 1737. See generally Hinds', vol. 6, secs. 404-437.) President Truman probably resisted even more vigorously though he had extensive legislative experience in conducting investigations.

16. 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 right of Congress to obtain information for a legislative purpose 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. An example of a pardon of the statutory offense was that granted to Mr. Townsend by the President following the affirmation of his conviction. (See Townsend v. U. S., supra.) However, to be considered is the exercise by the President of his power to pardon a criminal contempt of court. On this point it has been said by the Supreme Court:

* * * [C]riminal contempts of a federal court have been pardoned for eightyfive years. In that time the power has been exercised twenty-seven times. In 1830, Attorney General Berrien, in an opinion on a state of fact which did not involve the pardon of a contempt, expressed merely in passing the view that the pardoning power did not include impeachments or contempts, using Rawle's general words from his work on the Constitution. Examination shows that the author's exception of contempts had reference only to contempts of a House of Congress. In 1841, Attorney General Gilpin approved the pardon of a contempt on the ground that the principles of the common law embraced such a case and this Court had held that we should follow them as to pardons (3 Op. A. G. 622). Attorney General Nelson in 1844 (4 Op. A. G. 317), Attorney General Mason in 1845 (4 Op. A. G. 458), and Attorney General Miller in 1890 (19 Op. A. G. 476) rendered similar opinions. Similar views were expressed, though the opinions were not reported, by Attorney General Knox in 1901 and by Attorney General Daugherty in 1923. Such long practice under the pardoning power and acquiescence in it strongly sustains the construction it is based on (p. 118).

*** it is urged that criminal contempts should not be held within the pardoning power because it will tend to destroy the independence of the judiciary (p. 119).

***Complete independence and separation between the three branches, however, are not attained, or intended *** (p. 119).

Executive clemency exists to afford relief from undue harshness or evident mistake ** (p. 120).

(Ex parte Grossman (1925) 267 U. S. 87, 118, 119, 120).

17. 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, two-thirds 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 ** (McGrain v. Daugherty (1927) 273 U. S. 135, 181).

The continuity of the Senate was questioned at the beginning of the 83d Congress. The issue was resolved in favor of the precedent. On this point see Senate Rules and the Senate as a Continuing Body (1953), S. Doc. 4, 83d Congress.

18. Investigatory powers are granted to the standing committees of the Senate by the Legislative Reorganization Act of 1946

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 com. mittee 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.

On the House side, the Legislative Reorganization Act of 1946 (60 Stat. 812) granted general investigatory powers only to the Committee on Un-American Activities. Therefore, authority of other committees must be sought in specific resolutions passed by the House for that purpose.

19. Perjury, under the criminal statute, can be committed only before a duly constituted committee or subcommittee

We are measuring a conviction of a crime [of perjury] by the statute which defined it [D. C. C. 22-2501] * * *. An element of the crime charged in the instant indictment is the presence of a competent tribunal. **The House insists that to be such a tribunal a committee must consist of a quorum, and *** to convict, the jury had to be satisfied beyond a reasonable doubt that there were "actually and physically present" a majority of the committee (Christoffel v. U. S. (1949) 338 U. S. 84, 89).

20. A witness is not required to enter into a guessing game

Committees of Congress must conduct examinations in such a manner that it is clear to the witness that the committee recognizes him as being in default, and anything short of a clear-cut default on the part of the witness will not sustain a conviction for contempt of Congress. The transcript of defendant Kamp's testimony fails to disclose such a clear-cut default. The witness is not required to enter into a guessing game when called upon to appear before a committee. The burden is upon the presiding member to make clear the directions of the committee, to consider any reasonable explanations given by the witness, and then to rule on the witness' response (U. S. v. Kamp (1952) 102 F. Supp. 757, 759).