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9. Undignified activity of a member

In U. S. v. Pechart et al. (1952) (103 F. Supp. 417), attention was directed to language used by a member in addressing a witness who was attempting to assert his constitutional privilege against selfincrimination. The statement of the member, said the judge (p. 419): certainly could not have put the defendants in a frame of mind where they felt that they were being questioned in an atmosphere of impartiality appropriate to accomplish the laudable purposes of a very important committee of the United States Senate.

There is no indication that impartiality and dignity are requisite to a successful prosecution. However, their lack may influence decisions of courts.

A different view is taken in Barsky v. U. S. (1943) (167 F. 2d 241, 250), which states that unseemly conduct, if any, by committees of Congress is a problem for Congress or the people to consider. It is a political, not a judicial question.

Judge Louis E. Goodman, United States district court, San Francisco, Calif., who thus criticized the Senate committee in the Pechart case showed some truculence before the Special Subcommittee To Investigate the Department of Justice, House Committee on the Judiciary, 83d Congress, under House Resolution 50. See serial No. 2, part 2, pages 1752-1766. The Congress, of course, legislates with respect to many things pertaining to the courts such as jurisdiction, rules, procedures, and the administration of justice generally. This matter is discussed briefly in part VIII.

10. Immunity from service of civil process

The service of summons and complaint on a nonresident while he was in attendance as a witness before a committee of Congress has been quashed on the ground that such a witness is immune from service of civil process while in attendance as a witness and while traveling to and from the place where he was called upon to testify. Notwithstanding Wilder v. Welsh (1874) (8 D. C. 566, 1 MacArthur 566), it has been held that the immunity of a nonresident witness to service of process applies not only to witnesses before judicial tribunals, but also to witnesses before bodies of the executive branch of the Government. "This being the case," said the court, "no reason appears for not applying the immunity to witnesses appearing before the legislative branch of the Government" (Youpe v. Strasser (1953) 113 F. Supp. 289).

11. Privilege with respect to international organizations

The subject of privileged communications is within the field of municipal law and is governed by the law of the United States and not by any principle of international law. The United Nations is not clothed with the power to legislate on matters in the realm of municipal law of the United States. This proposition is axiomatic and may be stated without disparaging or detracting from the tremendous importance and vital significance of this international organization (U. S. v. Keeney (1953), 111 F. Supp. 233, 234, 235).

12. Quorum

We have already indicated the importance of quorum in perjury cases (Christoffel v. U. S., supra). To avoid future difficulties on this point, the Senate passed Senate Resolution 180, 81st Congress, adding a new paragraph (b) to section 3 of rule XXV, authorizing standing committees and subcommittees to fix a lesser number than one-third

of its entire membership who shall constitute a quorum for the purpose of taking sworn testimony. Thus these Senate committees and subcommittees can authorize interrogation by a single member. See U. S. v. DiCarlo (1952) (102 F. Supp. 597) and U. S. v. Auippa (1952) (102 F. Supp. 609).

The House does not have this provision in its rules. However, we know of no objection to the designation of small subcommittees for the purpose of taking testimony. A witness may rightfully demand the presence of quorum and if this is done, the committee should show specifically in the transcript at that point that a quorum was present. See U. S. v. Bryan (1950) (339 U. S. 323, 332–335).

13. Telecasting

Neither the House nor the Senate has provided by rule for televising hearings. Accordingly, it may be possible to effectively object to testifying before cameras. See U. S. v. Kleinman (1952) (107 F. Supp. 407), wherein the court stated (p. 408):

The only reason for having a witness on the stand, either before a committee of Congress or before a court, is to get a thoughtful, calm, considered and, it is to be hoped, truthful disclosure of facts. That is not always accomplished, even under the best of circumstances. But at least the atmosphere of the forum

should lend itself to that end.

In the cases now to be decided, the stipulation of facts discloses that there were, in close proximity to the witness, television cameras, newsreel cameras, news photographers with their concomitant flashbulbs, radio microphones, a large and crowded hearing room with spectators standing along the walls, etc. The obdurate stand taken by these two defendants must be viewed in the context of all of these conditions. The concentration of all of these elements seems to me necessarily so to disturb and distract any witness to the point that he might say today something that next week he will realize was erroneous. And the mistake could get him in trouble all over again.

The court held that the refusal of the defendants to testify was justified. See also Congressional Record (February 25, 1952) (98:1334-1335) wherein the Speaker ruled on the question.

VII. INVESTIGATION OF THE EXECUTIVE BRANCH

Many events have transpired since the publication of the original study in the 80th Congress. A former President has been subpenaed and has declined to appear before the congressional committee from whence the subpena issued. Both Congress and the President have strongly asserted their rights but to date the basic issue has not been settled by the Supreme Court. Law review articles, such as Wolkinson, Demands of Congressional Committees for Executive Papers (1949, 1950) (Fed. B. J. 10:103-150, 223-259, and 319-350) have supported the President while others, such as Collins, The Power of Congressional Committees of Investigation To Obtain Information From the Executive Branch: The Argument for the Legislative Branch (1951) (Geo. L. J. 39:563), have supported the Congress. Views, pro and con, also have been presented in House Report No. 1595, 80th Congress, on House Joint Resolution 342, and House Report No. 1753, 80th Congress, on House Resolution 522, directing the Secretary of Commerce to transmit to the House of Representatives a certain letter with respect to Dr. Edward U. Condon, Director of the National Bureau of Standards. While the resolution passed the House April 22, 1948, no further action was taken and the letter was not produced.

The House of Representatives probably could have forced the issue in the Condon case to a definitive court adjudication had it desired to do so. This would have required the passage of a resolution directing the Speaker to issue his warrant directing the Sergeant at Arms to take the Secretary of Commerce into custody and to bring him before the bar of the House to answer for his failure or refusal. Upon further refusal, the House could have ordered that he be kept by the Sergeant at Arms in the guardroom of the Capitol Police. (See 3 Hinds' *** secs. 1669, 1672, 1684, 1686, and 1690.) The matter probably would be placed immediately before the courts by means of a petition for a writ of habeas corpus and a definitive pronouncement could thus be obtained.

It is obvious that a definitive court pronouncement could not be obtained by the usual procedure of reporting the refusal under Revised Statutes 104 (U. S. C. 2:194), whereby a statutory prosecution under Revised Statutes 102 (U. S. C. 2:192) would be sought by a United States district attorney. It is unlikely that the Department of Justice would prosecute an executive officer whose refusal was based on a Presidential directive. Further, inasmuch as a statutory penalty would be involved, there could be little doubt concerning the power of the President to pardon in advance. See Taft, Our Chief Magistrate and His Powers (1925 edition, 121-124). It is doubtful, however, if the President could take definitive action in this manner with respect to a person held under an order of the House. See Ex parte Grossman (1925) (267 U. S. 87, 118).

In pointing to this possible action, there is no intention to recommend that either the Senate or the House seek definitive action in a given instance.

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. (See sec. 1 of his report.)

This study supports generally the following propositions:

(a) That the scope of a congressional investigation is as broad as the legislative purpose requires (Townsend v. U. S. (1938) 95 F. (2d) 352, 361, and sec. 1 of this report).

(b) That the subpena of a duly authorized investigatory committee of Congress is no more restricted than that of a grand jury. (See sec. 4 of this section.)

(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. (See sec. 1 of this section.)

(d) That this established right has been vigorously asserted at times by the Congress of the United States against the President and executive officers. (See sec. 3 of this section.)

(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. (See sec. 3 of this section.)

That the Congress has merely asserted its right to obtain information without attempting to enforce it. (See sec. 3 of this section.) (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. (See sec. 1 of this report.)

1. Authority and purpose

The primary purpose of a committee of Congress in conducting an investigation is to assist the function of lawmaking. A secondary purpose of almost equal importance is fulfilled by investigations whereby Congress supervises and checks activities in the executive departments. See section 136 of the Legislative Reorganization Act of 1946, infra. In the latter type of investigation two questions of basic importance arise: How far can Congress go in requiring information from the executive branch of the Government? To what extent does the separation of powers of the Federal Government protect the executive officers? (See McGeary, Development of Congressional Investigative Power, p. 102.) To date these questions have not been completely answered. Such answers as are obtained must be found in historical precedents and in analogies, for the possibility of clear-cut court decisions are unlikely on questions arising from congressional investigations culminating in tests of strength between the legislative and executive branches.

It is perhaps unfortunate that the Supreme Court of the United States has never flatly recognized the fitness and propriety of the investigative process in relation to the supervisory power of Congress over administration. When opportunity was apparently provided for such an avowal in the case of McGrain v. Daugherty (1927) (273 U. S. 135), the Court satisfied itself by declaring the investigation of the Attorney General necessary and proper on the ground that such information was needed for the "efficient exercise of the legislative function." By this indefinite phrase "the legislative function," the Court apparently meant the lawmaking function (Dimock, Congresssional Investigating Committees, p. 27).

Investigations of the executive departments are necessary and proper, not only because Congress must learn the needs of the departments in legislating but also because it possesses and has consistently exercised the power to see that the departments are conducted in accordance with law and policy. When Congress suspects, for good and sufficient reason, that irregularities are taking place in a department, it is its duty and privilege under the Constitution to investigate as a means to other action (p. 28). Implementing legislation contained in section 136 of the Legislative Reorganization Act of 1946 (60 Stat. 812, 832), spells out this power of "legislative oversight" as follows:

SEC. 136. To assist the Congress in appraising the administration of the laws and in developing such amendments or related legislation as it may deem necessary, each standing committee of the Senate and the House of Representatives shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the Congress by the agencies in the executive branch of the Government.

"Legislative power" as used in article I, section 1, of the Constitution unhappily fails to be either a word of art or a self-defining concept. Like "judicial power," it summarizes the history of an institution of government for any particular period of time. It did so in 1789. When the political thinkers of that period erected a

Government and set forth its outlines in a Constitution, they were not dealing with new concepts into which judges of a later date were to pour a meaning dissociated from past history and experience. Bred to the bone, as they were, with English conceptions and traditions, a phrase such as "legislative power" precipitated centuries of parliamentary history and decades of colonial practice (Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 156).

A legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin. Its roots lie deep in the British Parliament, and only in the light of a knowledge of these origins and subsequent developments does it become possible to comprehend its limits. The value of British precedents, however, has been doubted on the ground that Parliament as distinguished from Congress was originally a judicial body; that powers judicial in character commonly exercised by it are attributable to its judicial nature and therefore cannot be incident to a legislature stripped in its creation of all judicial functions. To this argument several answers are to be made. The assertion that Parliament was a judicial body is in itself one that scholars have vigorously denied. But assuming the premise to be true, neither the nature of the power to punish recalcitrant witnesses nor the history of its exercise lends color to the contention that it is to be deduced from the possession of judicial as distinguished from legislative powers by Parliament. Its character as a power ancillary and subordinate to the legislative process cannot be overemphasized. Its origins and its exercise are either necessary for the self-defense of the legislature or necessary for its efficient functioning (Landis, pp. 159-160).

Committees of Parliament deputed on inquiries of a different character were, during the period 1604-1868, armed with powers to compel the production of persons and papers, administer oaths, and report recalcitrant and untruthful witnesses to Parliament. Such committees might be concerned with discovering data for proposed legislative enactments. Such was the case of Sheriff Acton, of London, who was found guilty by the Commons of prevarication before a "Committee for the Examination of the Merchants' Business," and in consequence sentenced to the Tower. Similarly, on April 21, 1664, a committee, to whom the bill for settling the navigation of the River Wye had been referred, was empowered by the House to send to the warden of the fleet to cause James Pitson to be brought before them from time to time and be examined as occasion required (8 Comm. Journal, 547 (1664)). The power of Parliament over the purse also gave rise to the institution of committees to discover whether funds appropriated had been expended for authorized purposes. Among the earliest of these instances is that of a committee deputed "to inspect the several Accompts of the Officers of the Navy, Ordnance, and Stores," and empowered to send for persons and papers (ibid., 628 (1666); Landis, p. 161).

The privileges and powers of the Commons were naturally assumed to be an incident of the representative assemblies of the Thirteen. Colonies. The colonial records are too vast and uncharted a continent to permit the uninitiated to glean more than a handful of illustrations of the methods of work and the problems of 13 different

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