FLAXER v. UNITED STATES
Argument of David Rein
Chief Justice Earl Warren: Number 60, Abram Flaxer, Petitioner, versus United States of America.
Mr. David Rein: May it please of Court.
This case is here to review a conviction for contempt for refusing to produce certain records before the Subcommittee on Internal Security of the Senate Committee on the Judiciary.
The time of the incidence which led to the indictment on this case, the petitioner, Abram Flaxer, who was National President of the National Labor Union, the United Public Workers of America, this union organized members and various continental agencies, federal, state, county, and municipal governments.
In 1951, about which is the time at which the subpoena was served upon him which led to this case.
This union had approximately 35,000 members.
On this number, only about 5% were employed in the Federal Government mostly in the Bureau of Engraving and the Post Office Department and of the Records Administration.
The remaining members of the union were employed in state governments, county governments, and municipal governments throughout the country.
On September 19th, 1951, petitioner was served with subpoena duces tecum from the Subcommittee on Internal Security of the Senate Committee on the Judiciary.
This subpoena called to the production of the union's records including certain financial data of the union.
And of the issue which is raised by the indictment in this case, also the names and addresses of all of the union members employed by the Federal Government and the names and addresses of all union members employed by state, county, or municipal governments.
The subpoena bought a signature of Senator McCarran, he was at that time Chairman of the Subcommittee.
The subpoena contained no information as to the subject under inquiry or the reason why the Subcommittee was interested the information.It appears from the record that the subpoena had been prepared by members of the staff and the Subcommittee and apparently without any formal advance approval or authorization by the Subcommittee itself.
Petitioner appeared in response to this subpoena before the Subcommittee on October 5th, 1951.
Only one member of the Subcommittee was present at the time, Senator Watkins.
At the outset of the hearing, petitioner preceded -- objected the proceeding in the absence of a quorum, stating that he did not believe that a single Senator constituted a quorum.
Senator Watkins overruled this objection saying that under the rules of the Senate and of the Subcommittee, he did constitute a quorum for all purposes.
At this hearing, petitioner produced as demanded by the subpoena, the union records would show the amount, the source, and placement deposit of the union's funds, and also organizations to which the union has contributed during the past 12 months.
He was asked and he answered various questions concerning the method of operation of the union and the number of distribution of its members among various governmental agencies.
He brought however, producing the names and addresses of the union's members.
He argued, and I like to turn now to page 7 of our brief in which we quote from the record in which he stated his position as to why he did not wish to produce all the list -- the membership list of the union.
He said that this demand invaded the right of the union to the privacy of its membership records.
And the experience of this country had taught that invasions of this privacy were served to -- to compile blacklists for the sole purpose of destroying unions.
And he said, and I'm quoting now, "Every individual who joins the union, joins it with the confidence and trust supported by tradition and law that the act of joining and maintaining membership is a personal right and freedom that isn't violative."
A request such as the present constitutes a wholesale invasion of such privacy, and the right to be let alone which is protected by the Fourth Amendment.
Every trade union member imposes a special trust in these union offices to protect and preserve that right.
Therefore, to submit to the request in this subpoena would be a violation of the trust imposed in me by my membership and the betrayal of the entire trade union movement in this country.
I have no doubt that not a single union president which find it possible to comply with such a request.
He said, "I'm confident that the members of this committee, after considering my views and after studying the full implications of their request made in this subpoena realized its conflict with the basic union traditions of this country now incorporated to federal law and withdraw the demand for membership lists."
He added at the time that he did not have -- he had not compiled in advance this list of union members because he considered the demand to be an improper one.
Senator Watkins directed him to produce the membership list.
Nevertheless, at this point, petitioner asked for reconsideration of this request, arguing that the demand for the list was in violation of a national policy against an employer asking the names of the union members.
Senator Watkins replied that there was no law holding that the United States itself could not find out the names of members in its employees who belonged to a union.
Counsel for the committee, Mr. Arens then asked petitioner, "How long it would take him to compile this information?"
Petitioner replied that he probably could compile it in about a week.
Although he did not have a membership list of the kind called for in the subpoena, the information was available to him for that purpose.
Senator Watkins thereupon ordered the petitioner to produce the information within 10 days from the date of the hearing.
That is October 5th.
Justice John M. Harlan: Is between -- this was the -- this took place on the day when the original subpoena was returnable?
Mr. David Rein: That's correct.
October 5th which was the first time he got an opportunity to appear before the committee which was the date in which he was asked to appear.
Justice John M. Harlan: So the 10 days is in effect an extension of the subpoena.
Mr. David Rein: I would think so, Your Honor.
That's one of the points we argue in our -- in our brief later.
Unknown Speaker: Do you think it is an extension of the subpoena, Mr. Rein?
Mr. David Rein: Well, I think it is, yes, very definitely.
Petitioner again objected --
Justice Felix Frankfurter: Well, does that mean that if a subpoena is returnable on a given date, the -- assuming as I do for the purpose of discretion, authorizing -- issuing tribunal whether a court or an administrative agency, a current committee can say what we've asked, have it -- it takes more time to be assembled and therefore, we'll be able to bring this up 10 days then?
Mr. David Rein: I --
Justice Felix Frankfurter: What's the nature of the infirmity here?
Mr. David Rein: The informative in this case?
Justice Felix Frankfurter: What's the nature of the infirmity, what is formed in the extension?
Suppose it is an extension, what is the infirmity in that -- assuming the tribunal has jurisdictions, has power to ask for what was asked in the subpoena and a return was made on the return date, what is the infirmity of the tribunal saying, "I now see it takes more time than I thought or we thought."
Mr. David Rein: Well, there is no infirmity in that.
Justice Felix Frankfurter: What did -- but you said that's one of the points you've taken.
Mr. David Rein: Yes.
There is no infirmity in that.
The only issue --
Justice Felix Frankfurter: What's the infirmity?
Mr. David Rein: The only issue was that the petitioner is not guilty of contempt on that day.
That's the only point we make about it.
Justice Felix Frankfurter: And is the -- is the indictment made as a contempt on that?
Mr. David Rein: Yes.
As a matter of fact --
Justice Felix Frankfurter: (Voice Overlap).
If he says, "I'm not going to produce any of it," --
Mr. David Rein: Well he didn't say that.
Justice Felix Frankfurter: -- the return date evaporates?
Mr. David Rein: He didn't say he was not going to produce it.
Justice Felix Frankfurter: Well, that's the -- that's the question.
But the mere fact that there's an extension, I got the impression --
Mr. David Rein: Well, the mere fact that there's an extension raises other issues --
Justice Felix Frankfurter: What makes that (Voice Overlap) --
Mr. David Rein: -- but it makes us clear -- it makes it clear that he's not guilty of contempt on that particular date.
Justice Felix Frankfurter: It all depends what he does that day.
Mr. David Rein: Well that's true, but I would get to that.
Justice Felix Frankfurter: But merely because there's an extension for the fulfillment of the order doesn't aide as we know infirmity and that will be, doesn't preclude this -- his having been guilty but subsequently there on that day.
Mr. David Rein: Well, I'll get to that point in my argument.
Justice Felix Frankfurter: I know.
Mr. David Rein: It's just one of --
Justice Felix Frankfurter: I would --
Mr. David Rein: I may say --
Justice Felix Frankfurter: (Voice Overlap) -- your quick answer because that's one of your points.
Mr. David Rein: I may say it's one of my many points in this case.
I think it's a good point but it's certainly not our principal point.
Petitioner again objected and he asked the committee to reconsider this request.
He said at that time, "That I don't think that these lists can be looked upon in any other like than as blacklists."
The Senator replied to the petitioner at that time that this was an executive session of the Subcommittee and that the records were not necessarily be made public, to which the petitioner replied, and I'm quoting now from page 9 of the brief.
"So, on that I don't see any good purpose that these records would serve even if I were to produce them.
I think that they are wholly irrelevant if you say they are not to be made public."
Senator Watkins said that he was not promising that they would not be made public because he did not think that the Government had to make such a promise to get the information.
Mr. Flaxer then said, "I think with all due respect to the committee you are infringing here on an area which just crosses the boundaries of individual rights as well as trade union rights far beyond the contemplation of any."
He was cut off in the middle of that objection by Senator Watkins' statements that whatever your argument is that is the order now.
A colloquy ended with Senator Watkins stating to the petitioner that he was ordered to produce the records within 10 days.
The petitioner stating that he would take that request under advisement.
At no time during this hearing did the Subcommittee state what was the subject of the inquiry, the purpose for which the subpoenaed membership list was desired, for what use whether it could be made of the list by the Subcommittee.
What I have read to you here is the complete transaction which is relevant to the demand of the Subcommittee.
At the trial, the Government introduced in evidence only two things.
One, or -- well, I should say, they introduced the subpoena, they introduced the transcript of what occurred at the Subcommittee hearing, which was succinctly as I have put it to you, and also they put on the stand just one witness.
That was Mr. Richard Arens, counsel for the Subcommittee, who was put on the stand to testify as to what the pertinence of -- of this particular demand was.
Mr. Arens testified that the Subcommittee had information that the petitioner in this case, the Union Secretary Treasurer, a former Negotiation's Director and "certain members of its executive board" were members of the Communist Party.
In that connection I'd like to indicate what the Government's position seemed to be in that respect.
We objected to that type of testimony on the ground that it was hearsay.
The Government said, and I'd like to quote here for Mr. Hitz's statement.
We are not trying to prove he was a communist --
Justice John M. Harlan: Where are you reading at?
Mr. David Rein: Page 52 of the record, in the transcript to the record.
We are not trying to prove he was a communist.
We are trying to prove that the committee thought he was and that is enough to get him before the committee and his records.
I assume that referring to his records in this connection, Mr. Hitz's man, not the petitioner's records, but the records of the union.
Chief Justice Earl Warren: Where is that 52, you say?
Mr. David Rein: Yes, at the very top of the page 52 --
Chief Justice Earl Warren: Oh, yes.
Mr. David Rein: -- of the transcript of the record, that statement of Mr. Hitz.
Mr. Arens was the only witness.
Neither he nor any other witness gave any testimony as to what was the subject and their inquiry, or the pertinency of the union's membership list to any subject.
Nor there is any evidence in this record as to why the Subcommittee wished the names and addresses of these 35,000 union members or what use it intended to make of that information.
The trial court ruled -- denied our motion for judgment of acquittal.
It ruled over our objection that the records were pertinent to some subject under inquiry though it never bothered to state what that subject was.
It also ruled as a matter of law that a quorum had been present.
The petitioner was convicted on both counts of the indictment.
I should indicate that although there was only one subpoena here, the indictments set the refusal to produce in two separate counts.
One count covering the refusal to produce the names and address of the members of the union employed by the Federal Government, the second count, alleging a failure to produce the names and addresses of members of the union employed by state, county and, municipal governments throughout the United States.
This appeal was first heard before a three-judge panel below or before the decision was rendered, it was heard en banc.
I think it's important to turn to that first decision of the Court to indicate its theory as to why these records were pertinent.
It's the only place where any theory was expounded anywhere here, and as I gather from the Government's brief, and apparently it's the nature of -- of the Government's theory.
And I turn now to page 104 of the record where the majority opinion on the first opinion was written by Judge Wilbur Miller.
And he said it was because of -- now, I'm reading now from the top of the page 104.
It was because of congressional alarm reflected on that Act, I'm referring to the Subversive Activities Control Act of 1950, and other recent legislation that the Subcommittee was authorized to study and investigate the extent, nature, and effects of subversive activities, including the infiltration of labor organizations by persons who are or may be under communist domination.
Against such a background, the pertinency of the membership list demanded by the subpoena is at once apparent.
He then said, "The names could be used to check against a list of subversives to determine the extent of infiltration into the union, a matter clearly pertinent under the resolution particularly since this is a Government employees' union even though the names of state and local members are included, regardless of where they were employed, the names of members were pertinent because an investigation of the union was pertinent.
We brought this case here on a petition for certiorari.
This Court without hearing argument vacated the judgment below and sent the case back to the court below to reconsider in the light of this Court's decision in Watkins against United States.
On remand, the Court of Appeals again hearing the case en banc affirmed, again affirmed the conviction.
In its opinion, it did not indicate whether it endorsed the views originally expressed by the Court in its original opinion.
It was entirely silent on that subject.
Although one of the principles we believe in Watkins was the important principle as indicated here in the arguments yesterday of balancing invasions against the Bill of Rights against what might appear to be a justification of the Government for the information.
The Court gave no consideration to that problem at all.
He considered only one question, and that is the question as to whether the petitioner had been informed of the pertinency of the demand.
It came to the conclusion to which I will later address myself that it was not necessary to inform him because the petitioner already knew what the -- what the pertinency was.
We contend here that there are at least six separate grounds upon which a judgment of acquittal should have been entered in this case.
I do not believe that I will have time to cover all of those grounds in my argument.
I would like just briefly to state what our position is with regard to all of those grounds.
We state first that the judgement below is erroneous because there is no proof anywhere in this record as to what the subject under inquiry was, as to what the pertinency of the particular demand was to any subject under inquiry, and there is no showing of any legitimate or legislative purpose.
We contend also that under the doctrine of Watkins, one is to balance, so gross an invasion of the Bill of Rights as it's present here against an asserted government purpose there is nothing to balance.
We have only here a gross invasion.We have nothing on the other side.
We contend thirdly that petitioner was not informed as required under Watkins of the pertinency of the demand.
We contend also that the resolution strictly as applied here was too vague to furnish us an authorization for compulsory process.
We contend also that the single Senator present was not under the rules of the Senate and under the rules of the Subcommittee itself, a quorum of authority to rule upon petitioner's objections.
And we contend finally that in any event, there was clearly no contempt on October 5th which was the date set forth in the indictment.
Justice John M. Harlan: What did the Court charged the jury on the --
Mr. David Rein: They must find a contempt on October 5th that it should not consider.
Both sides agreed and the court below agreed that the issue of whether there was any contempt at any other time was not in the case.
That only issue before the jury, the only issue raised by the indictment, the only thing tried in this case is to whether or not there was a contempt on October 5th.
I think there's no -- no issue was ever raised about that.
We asked for instructions.
To that effect, the Government agreed to it and other courts on charge.
Justice Felix Frankfurter: But if you've heard about that Mr. Rein, that's the end of the case, isn't it?
Mr. David Rein: That's correct.
Justice Felix Frankfurter: Then we don't have to go in to these far-reaching sessions.
Mr. David Rein: That's correct.
Perfectly correct if there were --
Justice Felix Frankfurter: But you're going to draw the deduction that I would draw from your answer namely that's the piece to dispose off first?
Mr. David Rein: Well, I think that that's -- I think that I have a number of arguments here.
Some of them are not very far-reaching but I think it's important for me to present to this Court at this time all of the reasons why I think --
Justice Felix Frankfurter: I understand that you should know.
Mr. David Rein: -- of the petitioner's regard in this case.
Justice Felix Frankfurter: But if you're right about that, you're confident that you're right, that's -- that's the end of the matter.
Mr. David Rein: That's correct.
Justice Felix Frankfurter: It doesn't mean you shouldn't argue with the other points.(Voice Overlap) --
Mr. David Rein: Well, I'm confident of all of these points and of that as well as there'd be others.
That is correct.
Justice Felix Frankfurter: But you're going to start with the biggest point, aren't you?
Mr. David Rein: No, I'm going to start with a small point, [Laughs] a relatively small point.
I'm going to stop with the point that the prosecution here, that the conviction here must be reversed because of the failure of proof of the subject of inquiry, the failure of proof of pertinency and the failure of the Government to prove any legitimate legislative purposes.
Justice Felix Frankfurter: That's the constitutional point, isn't it?
Mr. David Rein: Well, not necessarily.
Justice Felix Frankfurter: The first one is --
Mr. David Rein: No, not necessarily --
Justice Felix Frankfurter: The failure to disclose -- the failure to disclose the subject matter, therefore he has the right to keep his mouth shut because the First Amendment, from your point of view protected this.
Mr. David Rein: That's correct.
But we do not even need to reach a constitutional question because the statute involved here, 2 U.S.C. 192, says that a witness is not guilty of contempt unless he refuses to answer a question which is pertinent to a subject under inquiry.
This Court has held in Sinclair and in other -- in other cases purely as a statutory matter although you can also do it for constitutional reasons but purely as a statutory matter that the burden is upon the Government and all of these cases to prove pertinence, to get it within the meaning of 2 U.S.C. 192.
So although it has constitutional overtones, it can be decided purely on that statutory ground, and there's a statutory requirement approved for pertinency.
Justice John M. Harlan: Will you leave your time enough -- save enough time in any event at some stage to argue the date of the contempt, if you go that part?
Mr. David Rein: I will -- sir, I would say on that, Your Honor, if I may perhaps -- well, I'll take no art of order and address myself briefly to that.
I think that that point is covered absolutely adequately for my purposes while the dissenting opinion written by Judge Edgerton in the original opinion in this case in which he pointed out quite clearly the fact that the way this colloquy ended, there was no obligation upon the petitioner to produce anything on October 5th.
That he was ordered to produce it 10 days later.
Now, the majority --
Justice John M. Harlan: It is --
Mr. David Rein: I'm sorry.
The majority of the Court disagreed and this was its reasoning and I can state it very briefly, that it did not matter what happened toward the end of the discussion, that what was important was the fact that somewhere during the colloquy and it is true, he was ordered to produce in accordance with the language of the subpoena.
That therefore, he was guilty of contempt in all of the other discussion, the argument that went back and forth did not matter.
I'd like to indicate, Your Honor, purely as a technical matter that the petitioner really was under no obligation to produce this membership list within the terms of the subpoena because as I understand it, he is only required to produce things which are in his possession.
He had no such membership list in his possession.
He would've had to compile such a membership list in the first place.
And it was only reasonable, it seems to me, for him to come to the committee at the first time he had an opportunity to come to the committee to make his arguments before going to what would have been considerably expensive trouble of compiling the list which was not in his possession.
Justice Charles E. Whittaker: Did he resist the subpoena on that ground, Mr. Rein?
Mr. David Rein: No.
He didn't resist the subpoena on that ground but he did not actually go to the trouble of compiling the list until he had an opportunity to present his argument.
Justice Charles E. Whittaker: Was there -- was there a time intervening between the date of service and the return date in which to have prepared the list?
Mr. David Rein: I assume there was.
Justice Charles E. Whittaker: Do you know offhand the date of service?
Mr. David Rein: Yes, there was.
He was served on September 19th.
He appeared October 5th.
He said he could've put --
Justice Charles E. Whittaker: (Inaudible)
Mr. David Rein: He said -- he said he could have prepared it within a week.
There would've been time to him to prepare it and he makes no issue that he did not have it then, necessary time.
I make only the point that this was the first opportunity he had to protest or to the propriety of the demand.
And I may say that there is no indication here that there was anything of time was in anyway of essence to the committee that it had to be produce on -- there was anything magic about October 5th.
To turn now to the question of the failure of proof in this case, we contend that I think the record bears this out that the prosecution did not prove either the subject under inquiry, the pertinency of the membership list, or any legislative purpose.
There is nothing in the transcript of the hearing here which would give any indication of any of these elements.
And certainly one cannot find it in the vague language of the resolution itself.
At the trial all we have in addition to the transcript was the testimony of counsel for the Subcommittee, that the committee had certain information that certain officers of the union, including the petitioner, were members of the Communist Party.
And that's all there is.
By itself, this does not demonstrate either a subject under inquiry or that the inquiry has a legislative purpose.
And more important, it certainly shows no rational basis, certainly no legitimate basis for the demand for a list of 35,000 members of the union.
The court below and the Government here contend that the subject under inquiry, their language, was whether or not there was Communist Party infiltration into the union.
We say that there was a number of difficulties with this contention.
First, there is nothing in the record to support it.
The Government concedes there is nothing in the record that no one ever said that.
If there is however, that one can gather that that was the subject under inquiry from the entire tenor of the proceeding, we would say first, that certainly one cannot gather a subject under inquiry or pertinency with the undisputable clarity that is required in contempt cases as indicated by this Court in Zacher against the United States from the entire tenor of a proceeding particularly since the Government, although it refers to entire tenor, it can appoint to no statement made either by Senator Watkins or by counsel for the Subcommittee.
In addition, we say, even if you examine this tenor from beginning to end and all the way through, you cannot find that subject under inquiry.
What is the tenor of the proceeding?
The tenor of the proceeding is that the petitioner was asked certain neutral questions about the method of operation of the union, the number of its members, the distribution of these members.
All of which questions he answered.
The only thing that you can gather from the tenor of this proceeding was the fact that the petitioner repeatedly and consistently complained and objected that the sole purpose of this demand was to employ the list for blacklisting purposes.
That charge, it has, was never reputed or denied by Senator Watkins.
The only other thing that we have here is a statement by Senator Watkins during the course of the colloquy.
That there was no reason why the Government was not entitled to know which of its employees belong to a union.
Now we have here a situation where Senator Watkins with the Subcommittee of one, of a Subcommittee of a full -- of a Subcommittee of seven, of a committee of the Senate of one house of our national legislature.
Now, I think for the Senate there to equate himself with the Government of the United States, and to say that the Government of the United States had a right to know which of its employees belong to a union hardly indicates that the Subcommittee necessarily had that right or that the Subcommittee had a legitimate subject under inquiry even assuming that the Government had such a right.
Justice Charles E. Whittaker: Were the Government being an abstraction, it have to get it through its legislative agency?
Mr. David Rein: Well, no.
Not unless it served a legislative purpose.
This Subcommittee --
Justice Charles E. Whittaker: How --
Mr. David Rein: This Subcommittee has not the right to demand a list of union members on the abstract proposition that the Government is entitled to this right.
This Subcommittee can demand it only if it within the jurisdiction conferred upon it by a valid clear Senate of resolution --
Justice Charles E. Whittaker: I wasn't referring --
Mr. David Rein: -- that fall within the jurisdiction.
Justice Charles E. Whittaker: -- to the matter of whether they might lawfully do it.
I was referring to the means, the mechanics, how could the Government in the abstraction obtain information except through agents?
Mr. David Rein: Well, presumably they could pass an act, passed by both Houses of Congress and signed by the President of the United States if they were interested in it.
Justice Charles E. Whittaker: And thereby obtain information?
Mr. David Rein: Well, I don't know what information.
The information have to relate --
Justice Charles E. Whittaker: That's provided for by the subpoena?
Mr. David Rein: Well, my point is, Senator Watkins' statement that the Government is entitled to know does not advance the Government's case that there was a legitimate subject of inquiry before this committee.
That's (Voice Overlap) --
Justice Charles E. Whittaker: And I misunderstood you on it because you said, he erred in equating himself with the Government.
Mr. David Rein: Well, I think he did because he was asserting that the Government had a right, that of meeting an issue, which is that this particular Subcommittee had a legitimate legislative purpose within the jurisdiction confined to in the Subcommittee.
I think he did err in equating himself with the Government because he did not have all of the jurisdiction possessed by the Government in all its parties.
Even if one assumes that this was a subject of inquiry, this does not, it seems to me, advance the Government's problem.
Because the question still remains, the important question in this case is, what is the pertinency of the list of 35,000 members of the union to even that subject under inquiry?
Now, to plug this gap, the court below in its original opinion and the Government here employed another improvisation.
And that is that the names of the union members could be check against a list of subversives.
Now again, we run into a number of difficulties.
First, there is no evidence here that this Subcommittee had a list of subversives.
And, I would submit it doesn't seem to be a proper function for any legislative Subcommittee to compile and maintain such a list.
I would also say and I think this Court can clearly take notice that it is extremely unlikely that 1951 at the time when the loyalty program of the Government of the United States had been in full force in effect for a number of years that there were going to be any government employees on any list of subversives.
They obviously would no longer be in the Government.
We contended that it's improper even to make this assumption by the court below for a legislative Subcommittee to be in the business of compiling the lists of subversives.
And, I would go so far as to say I cannot see that it would be a proper function of any Government agency to compile such a list.
The Government in this brief replies, I like to turn to brief 53 as to how they made that contention, and this is the Government's brief.
It says and I'm reading now from the middle of the page.
Nor was it necessary for the committee to have had a master list of subversives for the union membership list to have been useful to the committee in its inquiry.
The court below said nothing about any such master list, so termed as petitioners.
But the committee certainly had in its files as a result of its prior investigations, names of persons who there were at least grounds for believing war members of the Communist Party.
I submit that this does not show that the purpose is anymore legitimate.
It merely shows that a list is not a comprehensive or good list or a master list.
It merely shows that it would not have been very useful even for this illegitimate purpose.
Finally, we come to the problem of legislative purpose.
Hereto, the record is completely bare.
The decision of the court below and that is in both opinions didn't really consider the question.
Indeed, if you read those opinions, it would seem to have adopted a view which was directly repudiated by this Court in Watkins that the inquiry was an end in itself, but merely that fact that -- and perhaps, I think they adopted a view which we -- will be put by the quotation I read from Mr. Hitz.
That once they had information that the petitioner was a member of the Communist Party, they had a right to demand the records of the union and one may not go beyond that.
In other words, the inquiry serves its all purpose.
It need not have a legislative purpose.
The Government here on appeal, and I think for the first time in the Supreme Court -- well I think it did raise it earlier in -- it's opposition to the petition for certiorari comes forth with a number of hypothetical suggestions as to what conceivably might have been of the legislative purpose of the committee.
We have treated that in our reply brief.
I do not think I have the time to go into them in full detail here except to say this.
One, they are afterthoughts.
Two, they are hypothetical suppositions as to what the committee might have had in mind.
They are clearly farfetched and fanciful.
And most importantly, in no case does the Government establish a nexus between a list of 35,000 union members in any of these purported legislative purposes.
I want to comment just briefly on one suggested legislative purpose.
It appears in the Government's brief at page 42.
And that is that the Subcommittee here might have been interested in determining whether or not the union was a communist front organization as defined by the Internal Security Act of 1950.
We would contend that if that had been the purpose of the committee, it would have form squarely upward of the language of this Court both in Quinn and in Watkins that legislative committees are not law enforcement agencies, nor trial agencies.
The function of determining whether any organization is a communist front organization is committed by the Internal Security Act to the subversive activities controller -- Subversive Activities Control Board subject to judicial review.
It cannot be determined by the kind of ex parte investigation that was conducted by the Subcommittee here.
Unknown Speaker: (Inaudible)
Mr. David Rein: Sure.
Unknown Speaker: Was there any objections (Inaudible) that required a lot of work comparably with the things of that matter?
Mr. David Rein: Well, it didn't -- it was not to its breadth in terms of work.
It was -- into its breadth in terms of being a sweeping wholesale invasion of privacy without any justification.
Justice Charles E. Whittaker: Which would imply even to a small group, the theory as I get from the objection here, it was not on account of the -- being the first department is, but it was objection to -- a violation of the right to privacy if any at all.
Mr. David Rein: Well, except that it gets aggravated in terms of what legitimate purpose can a committee have as the group gets larger and larger.
Justice Charles E. Whittaker: (Inaudible) in subpoena, if -- but to have a list from that, you must -- you object on that ground, is it not?
Mr. David Rein: Well, they argued that it was abusive in asking for the names and addresses of all the members of this union, yes.
Justice Charles E. Whittaker: But wasn't it because it did that or is it because it has violated the right to privacy?
Mr. David Rein: Well, I don't see a distinction between the two.
I think it's the same thing.
Justice Felix Frankfurter: Mr. Rein, may I ask you, putting to one side explicitness, appropriate explicitness of congressional purpose and putting to one side the question of authorization of the questioning committee quorum, all of it there.
Assume they're all satisfied.
What do you concede to be the limits of power of Congress in appropriate committee inquire into them the Security Act that Congress has passed in order to ask the names whether, (a) it should repeal it or whether (b), should extend it or modify it.
What kind of scope does a Committee of Congress if it had rested at those -- to those that I concede to be clearly legislative problems.
Mr. David Rein: Well, I don't think I can answer that question to the abstract.
I agree with you --
Justice Felix Frankfurter: We need to find out -- we need to find out so that may be specific.
Did find out whether the whole Security Act as a utility in the sense that it's addressing itself to non-existing evil or can it find out whether the Security Act isn't tight enough or extensive enough or intensive enough because the evil is greater than Congress had inspected.
Mr. David Rein: Surely.
Justice Felix Frankfurter: Can it go to those things?
Mr. David Rein: I don't see any reason why it couldn't.
Justice Felix Frankfurter: Could that -- can it go and explore to what extent, there is whatever subversion maybe.
Mr. David Rein: well --
Justice Felix Frankfurter: There's a phrase where it say, Congress can't consider the problem with subversion to take us very far.
Mr. David Rein: No.
And I think --
Justice Felix Frankfurter: When you're speaking the power of Congress.
Mr. David Rein: I'm not presenting that -- that view at all.
Justice Felix Frankfurter: But you've indicated a while ago that -- shut off, you used some phrase under the Watkins opinion that is not beyond the power of Congress to go into these problems.
Is it beyond the power of Congress?
Mr. David Rein: I'm sorry I don't recall using any such phrase.
Justice Felix Frankfurter: Well, -- the United States, the Watkins' case barred Congress in doing it.
Mr. David Rein: Well, I would say whether the Watkins case bars Congress from doing it as I read it, the problem presented by this Court by the type of resolution that you had for the House Un-American Activities Committee --
Justice Felix Frankfurter: But assuming -- assume the resolution is sufficiently different so there is no (Inaudible) on that fall.
Mr. David Rein: Well, then I don't think we necessarily have a problem then we would have to discuss each particular case to see whether or not the request is pertinent to a --
Justice Felix Frankfurter: But supposing --
Mr. David Rein: -- a definite subject under inquiry.
Justice Felix Frankfurter: Well, take my -- take my hypothesis.
If Congress bears an explicit language, "We have now in the books of the statute at large, the statute dealing with National Security to disregard to various aspects of what most colloquially I call disloyalty, subversion.
We want to find out whether this is a needless statute or whether it's an inadequate statute.
That would be an explicit purpose over this?
Mr. David Rein: Yes.
Justice Felix Frankfurter: Would that be explicit enough?
Mr. David Rein: It would be an explicit purpose.
You still have the question as to whether what questions they were asking particular people had any bearing on that side.
Justice Felix Frankfurter: That's right.
I'm trying to find out the area of subject matter not the specific question.
Could they -- could they try to find out whether there's any achievement for any such statutes.
Mr. David Rein: Surely.
Justice Felix Frankfurter: And therefore in order to find out how they would have to find out whether there are such things as subversives, whether there is such a thing as subversive.
Mr. David Rein: I would think yes.
Justice Felix Frankfurter: Well, that -- doesn't that open up an area of examination pretty broad to find out?
How can you find out subjectively unless you can find out that there are subversives?
Mr. David Rein: Well, you don't have to have 35,000 names --
Justice Felix Frankfurter: I'm not --
Mr. David Rein: -- of the people who aren't reputed even to be subversives.
Justice Felix Frankfurter: Mr. Rein, I'm not suggesting myself to the specific questions.
I'm trying to find out --
Mr. David Rein: Well, I find it hard --
Justice Felix Frankfurter: I'm just trying in the argument what your arguing is, the scope of congressional power.
Mr. David Rein: I find it --
Justice Felix Frankfurter: And to me, that's (Inaudible)
Mr. David Rein: I find it hard to discuss this question in the abstract.
Justice Felix Frankfurter: Well, but you are discussing it.
Mr. David Rein: It might have -- no, I'm not.
I have, not here.
Justice Felix Frankfurter: The mere question is -- if the mere question is whether 35,000 was too large in effect, if they'd been asked to produce the list of the 500 (Inaudible) of the 50 members.
If you're going to the question of 35,000, then you reach the problem that Justice Whittaker posed to you.
Mr. David Rein: No, I do not.
Justice Felix Frankfurter: Just -- do not take your answer.
Mr. David Rein: No, I do not.
Justice Felix Frankfurter: Making this --
Mr. David Rein: Let me put it this way.
Justice Felix Frankfurter: -- the excessiveness of the subpoena which is the mere difference --
Mr. David Rein: Let me put it this way and I will say this, that assuming a legitimate legislative purpose which I do not take it's the function of this Court to assume and to supply to a Subcommittee which hasn't presented any evidence as to what it was doing, but committees having a legislative purpose can only look into subjects generally.
And I don't see -- and I would go this far, I can never see any purpose under which having the names and addresses of 35,000 members of a union can possibly further any legitimate legislative purpose the fact of getting names and addresses in itself is an indication that you're not thinking in legislative terms.
And I would make that as my proposition.
Justice Felix Frankfurter: Well, my imagination is equal to excluding the possible relevance even to such an inquiry.
Mr. David Rein: Let me say that if your imagination was equal to it, it's not your function here to extend it.
It's the function of the Government in the trial or the Subcommittee to make some showing of how this would have assisted it.
Justice Felix Frankfurter: I agree with you entirely on that.
I'm not --
Mr. David Rein: It's hard to make.
My imagination, I would say, does not extend as far as Your Honors.
I do not prescribe it.
Justice Felix Frankfurter: I didn't claim mine did extend.
I said my imagination isn't equal to fencing off Congress absolutely and saying it's irrelevant.
Mr. David Rein: Well, I can think of no circumstances --
Justice Felix Frankfurter: Subversiveness --
Mr. David Rein: -- now where it might be.
Well, that's about to --
Justice Felix Frankfurter: I don't think it's our --
Mr. David Rein: -- where I'll have to label.
Justice Felix Frankfurter: -- business here to indulge in abstract fencing of a subject to Congress.
Mr. David Rein: I'm not asking this Court to do that.
I want to go briefly to the doctrine advanced by this Court in Watkins and more recently in NAACP against Alabama.
There, the doctrine was set down that wherever there is a gross invasion or any invasion of the First Amendment rights, and here you have a gross invasion, there must be a balance to determine whether or not the governmental purpose justifies of that invasion.
I would say in this case, we have nothing to balance on the other side, and secondly, there is no more reason to permit the demand of these names than there was in the NAACP case.
There is no more relationship between the demands of 35,000 union members and any alleged purpose of the committee shown here in this record than there was in NAACP versus Alabama.
Justice Charles E. Whittaker: Would that have been (Inaudible)
Mr. David Rein: I don't think so.
I don't think so because we still don't know why they wanted it and it still appears here.
And I like to address myself however, to that question on the assumption that there is a difference, and that really was my next point.
At the invalidity of the subpoena was aggravated in this case by the fact that the bulk of the names it asked for were those of state, county, and municipal employees.
I like to first bring to the Court's attention its own doctrine as set forth in the Bowman Dairy case.
That whenever a subpoena, a single subpoena covers matters which are good and bad, one is not in contempt that one refuses to violate that subpoena because the language used is that the one who had subpoenaed the witness is not required to call the good from the bad.
Therefore, if this Court holds that it was invalid and improper to demand the names of the employees, not employed by the Federal Government, and the entire subpoena must fall in both counts of the indictment must fall.
Justice Charles E. Whittaker: (Inaudible)
Mr. David Rein: That's a specific objection.
Justice Charles E. Whittaker: Well, does he not?
Mr. David Rein: He does not have -- he can contend as they did in the Bowman Dairy case that all of the subpoenas is bad --
Justice Charles E. Whittaker: As I understand --
Mr. David Rein: -- as he did here.
Justice Charles E. Whittaker: Did he do that without inspection (Inaudible)
Mr. David Rein: Well, you have to object if the whole subpoena was bad.
You don't have to say, "I think part of it is good and part of it is bad."
Justice Charles E. Whittaker: He didn't say why?
Mr. David Rein: Well, he did say why.
Justice Charles E. Whittaker: (Inaudible)
Mr. David Rein: You don't have to be right.
My point is this.
You don't have to be right in all respects.
Justice Charles E. Whittaker: Your position is that here, and to the fact that (Inaudible)
Mr. David Rein: Well, certainly.
I don't think there's no question about that.
We argued in our brief and it set out that certainly, in the field of relations between State and its own employees is at least presumptively a matter beyond federal jurisdiction.
That for the Government, the Federal Government to invade that field, it must make at least a positive showing as to why it is justified in invading that field.
We say here that there is absolutely no showing at all.
There was none in the court below.
There was none at the trial.
The only thing that is presented here is the argument of the Government which I can only characterize as fanciful.
That the Subcommittee might have been interested in doing something about that section of the Constitution which guarantees to the State, every state in the union a Republican form of government.
The Government however, does not carry that contention to the point of trying to establish a nexus between these lists of names in that purpose.
I want to turn out briefly to our contention that in any event, a judgment of acquittal should be -- be enacted because of the failure to inform the petitioner of the pertinency of these records as required by Watkins.
The Government concedes here that nothing was said at the hearing which would satisfy this requirement, nothing at all.
It contends however as did the court below that it was not necessary to satisfy this requirement for three separate reasons.
One, that the subject was indisputably clear from the tenor of the proceedings in any event.
Two, it argues that petitioner did not adequately raise the issue with pertinency.
And three, in any event, the petitioner was well aware of both the subject of inquiry and the pertinency of the list.
I think so far as the first subject is concerned, that everything was so clear, but nothing need be said.
I've already addressed myself sufficiently on that point and need not go into it.
On the second point, the argument that the petitioner did not adequately raise the objection of pertinency, I'd like to look at the record on that and indicate what was it that the petitioner did say.
Now, he said, first, that he thought that the list was being asked for -- for blacklisted purposes.
Justice John M. Harlan: (Inaudible)
Mr. David Rein: I'm going back to what I referred to early in the brief and going over that.
Justice John M. Harlan: (Inaudible)
Mr. David Rein: Yes.
He said that the subpoena was a wholesale invasion of privacy and violated the Fourth Amendment rights.
In that connection, the Government makes a curious contention.
It says that the petitioner's reliance on the Fourth Amendment was that in fact a -- made omission of pertinency.
I must say it's always been my contention that my understanding that the Fourth Amendment is the constitutional provision of protecting individual against the demand for irrelevant documents.
And therefore it seems to me that if he was required to use autistic terms, he certainly did it when he placed his objection on the Fourth Amendment.
He said also that he thought the list was being used for blacklisting purposes.
He was cut off in the middle of an objection in which he said that he thought the demand infringed here on an area which just crosses the boundaries of individual rights as well as trade union rights.
At that point, it was Senator Watkins who said, "I don't care what your argument is."
He had also said, when he said he thought it would be a blacklisting purpose, Senator Watkins said that, "Well, this is an executive session.
We can keep this private."
He said at that time.
"Why don't you keep it private?
I don't see how it would be relevant to any purpose even to the illegitimate purpose of blacklisting."
Now, I contend, I don't see how a witness could more clearly state his objection to lack of pertinency than the witness has done here.
We must remember that the witness is after all are not lawyers.
There were some discussions here about the fact that witnesses do have counsel in these proceedings and the witness did have counsel in this proceeding.
I'd like to just talk about that for one minute.
In these proceedings the role of counsel is limited to advising the witness by a sort of whispering and the witness is here as things come up as to what the witness might say.
Counsel does not have the privilege and counsel is not permitted as a matter of fact to make objections on behalf of the witness.
It seems to me that under those circumstances, to expect that what the witness is going to say is going to come out in the most precise legal terms or that they are required to come out in the most precise legal terms is more than hypothetical.
And I say under any stand and even if hypothetical standard, the petitioner here clearly objected to the pertinency.
And therefore -- he was under Watkins entitled to be informed as to what the pertinency was.Finally the Government adapting the reasoning of the court below said that it was not necessary to inform petitioner of the pertinent subject under of inquiry of pertinency because he knew it any way.
On that, I do not want to risk, to paraphrase the reasoning of the court below, I don't think I can.I think I would like to read it to indicate what Judge Prettyman said on that score in the second opinion.
I'm reading now from page 34 of my brief quoting from the record at 117.
Judge Prettyman said, "Even if the resolution is vague, Flaxer's responses to questions demonstrated that he knew what the subject of the inquiry was.
In response to the subpoena, he produced the financial and various other records of his union and without objecting, presented them to the committee on the record.
He thus indicated that he recognized the nature of the question under inquiry."
Now, I would submit that this passage just doesn't have any semblance of logic whatsoever.
The fact that the petitioner has no objection to presenting the financial records of the unions certainly doesn't indicate knowledge of any kind.
And even if they did have knowledge as to the financial records of the union being pertinent to something, I don't see how you could follow from that or draw from that the inference that he knew the pertinency of the membership list.
Justice Felix Frankfurter: Mr. Rein, I think you have only a very little time left.
May I ask you to reserve enough of it to document a statement you made earlier that it is both against the Senate rules and the rules of this Subcommittee violated both the Senate rules and the rules of this Subcommittee presented to Watkins as a one-man Subcommittee who have been empowered through (Inaudible)
I hope you speak to that before you sit down.
Mr. David Rein: Well, I -- I will.
Justice Felix Frankfurter: If not, just the reference.
Mr. David Rein: As a matter --
Justice Felix Frankfurter: And give us the references to those rules --
Mr. David Rein: Yes.
Justice Felix Frankfurter: -- of both the Senate and the Subcommittee.
Mr. David Rein: The matter is covered rather fully, if I may say so, in our brief in page 43 on to page 52.Briefly our contention rest as follows.
After the decision of this Court in Christoffel against the United States which held that a witness there was not guilty of perjury unless his testimony was given before a full quorum of the committee.
The Senate rules was changed by Senate Resolution, I think 1 (a) to provide, and here is the language of the change.
That -- well, the actual language of the rule appears earlier in the brief at page 3 or page 4 rather (b).
Each standing committee and each Subcommittee of any such committee is authorized to fix a lesser number than one-third of its entire membership who shall constitute a quorum thereof for the purpose of taking sworn testimonies.
The legislative history showed that the purpose of this change in the resolution was solely to meet the problem of perjury in the Christoffel case.
Senator Hayden who introduced the resolution said it makes no other changes in the requirements of a quorum.
It is our contention that for an important issue of this kind to determine whether or not the Senate wished so extravagantly to demand -- demand over objections of the petitioner.
You have to have more than a single Senator to decide that question.
I'd like to indicate that this question had never been decided in advance at the time of the issuance of the subpoena.
As it appears from the record there had been no meeting of the committee which decided to issue the subpoena.
And we say and I don't think I have more time to say that it is fully developed in our brief --
Justice Felix Frankfurter: But I don't -- I maybe wrong.
I quickly glanced over the pages and at the brief but I don't find reference of the discussion which you have said, who was it, Senator Hayden or somebody, Senator Hayden?
Mr. David Rein: Yes, it appears on page 49.
Justice Felix Frankfurter: Well, then -- in other words -–
Mr. David Rein: 48 and 49.
Justice Felix Frankfurter: Am I right in saying that you think that that (b) merely makes a single member practically a master without power to rule on the testimony it makes.
Mr. David Rein: No.
We are not -- we limit ourselves here in this case to say that he does not have the power to rule on objections to a subpoena duces tecum.
We do not examine the question of his power to rule on objection to questions alone.
We say when it comes to documents that sworn testimony, the phrase "takes sworn testimony" does not include the power to require the production of documents.
We say that that is a sensible rule.
Justice Felix Frankfurter: I want to be sure what happened to be there, much of his problem and I was of the courts in Christoffel.
Does this mean that a single Senator can't pass on relevance of questions asked, but -- but that he can't act -- can't pass on objections to the entire subpoena or the scope of subpoena?
Mr. David Rein: We are limiting our argumentation here to say he cannot pass upon the validity of a subpoena duces tecum to produce documents.
We are not arguing the question of what power he might have for particular questions.
We say document is in a different category and sworn testimony does not cover documents.
Justice Felix Frankfurter: And you say that if I look at this debate on 48-49, I'll find that verified or indicated by what it said to this.
Mr. David Rein: Plus our argument.
I think that it has to be interpreted in accordance with our argument.
Justice John M. Harlan: Supposing -- supposing Senator Watkins had put the witness under oath, he said, "If you complied with this subpoena --
Mr. David Rein: He was under oath.
Justice John M. Harlan: Well, supposing he asked him, put him on the stand and say, "You comply to this subpoena," and the witness says, "No, I'm not going to comply."
I think -- and other answer was, that sworn testimony with reference to the subpoena would be the deciding rule on that?
Mr. David Rein: Well, now the here -- the issue here is a narrow one.
He presented, in my view, this is the only opportunity he had to come before a quorum to present objections in a court let us say, if a subpoena is issued, that is, it would be by an attorney.
You go before a court and you say, "I don't think the subpoena should be obeyed."
You make your argument.
You get your ruling from a competent tribunal.
This was as it were, Mr. Flaxer's day in court.
This was his opportunity to say and he wanted to say to a quorum of the committee, I don't think you should enforce the subpoena for a number of reasons.
First, I think it's invalid.
Secondly, and this should not be overlooked even if they had the power, their important policy considerations in terms of a general attitude toward unions nationally.
That he was entitled to have those considerations passed upon by a full quorum of the Subcommittee and not by a single Senator who could not act as a quorum --
Justice John M. Harlan: But still -- still your argument assumes that if you've been put on the stand and you've been asked to give as many names of members of this union is possible that he could recall from recollection, you would say, "I object to that on the ground it's immaterial."
Senator Watkins still as an individual member of the committee could (Voice Overlap) --
Mr. David Rein: Honestly, I don't have -- we don't have to reach that question here.
Justice John M. Harlan: But I thought your --
Mr. David Rein: I think it had --
Justice John M. Harlan: -- argument assumed that.
You've conceded it.
You drew (Voice Overlap) --
Mr. David Rein: Well, it may or may not.
I was saying --
Justice John M. Harlan: -- sworn testimony and unsworn documents as you call it passing the --
Mr. David Rein: Well, we limit ourselves to that.
We don't necessarily assume the other.
We don't think it's present in the case.
That's all I would say about that.
Justice Charles E. Whittaker: Now, and the word is not just to your argument, that what was said about Mr. Flaxer at that time can't be treated as a motion to quash?
Mr. David Rein: That's correct.
And that he was entitled to have a quorum of the committee's rule on that motion and he did know it.
Justice William O. Douglas: Who -- who issued the subpoena? Was it Senator Watkins or the Committee --
Mr. David Rein: Well, --
Justice William O. Douglas: -- Chairman or?
Mr. David Rein: It was signed by the Committee Chairman.
The testimony shows it was prepared by the staff of the Subcommittee and we tried to find out whether there had been any kind of a meeting, and apparently, there hadn't been any formal meeting of the Subcommittee to decide the issue of the subpoena.
The testimony is that it was prepared by Mr. Arens and another member of his staff that were sent over to Senator McCarran for his signature.
Justice William O. Douglas: What -- were there any rules of the committee concerning the issue of subpoenas, who issues them?
Mr. David Rein: According to the rules, it's issued -- they are issued by the chairman.
Justice William O. Douglas: Do you think that that at least the authorities that issues them should be -- should rule only --
Mr. David Rein: At least to that, I would go so far as to say that you would have the situation here with Senator Watkins, I don't think he would have the authority to invalidate the subpoena standing by himself after it had been issued by the chairman.
So, therefore --
Justice Charles E. Whittaker: And it's just for the motion to quash it, and that would mean, what was being inquired.
Mr. David Rein: That's right.
Unknown Speaker: Yes.
Mr. David Rein: I think my time is up.
Chief Justice Earl Warren: Yes, your time is up but we've taken so much of your time for questions, you may have five minutes in rebuttal.
Mr. David Rein: Well, thank you Your Honor.
Chief Justice Earl Warren: You -- Mr. Hitz, you may have five minutes more if you --
Argument of William Hitz
Mr. William Hitz: Thank you, Your Honor.
Chief Justice Earl Warren: -- if you wish it.
Mr. William Hitz: Mr. Chief Justice and members of the Court.
Before addressing myself to the history of this particular hearing and the history of the Subcommittee and its relationships in perspective with the Un-American Activities Committee of the House which I would like to leave with the Court before I conclude my argument.
I would like first to correct certain -- perhaps misimpressions that have been advanced here.
Inadvertently I know by Mr. Rein with reference to the proceeding that Mr. Flaxer testified before.
Now, Mr. Rein made a very fair statement I believe of the background of this case and perhaps because there was a question asked him, he did not fully state what I think is an important part of the factual background.
Namely, that Mr. Flaxer who have been served at -- in Beekman Street in New York City where his office was located, some 19 days prior to the return date of the subpoena, apparently from his own testimony, made no effort whatever to obtain the list of members of his union to comply with those several parts of this -- of those two parts of the subpoena which called for his government employees in Federal Government and his governmental employees in state government.
And instead of gathering that information and bringing it with him in his own custody of that of his lawyer and keeping it in his briefcase to object to when it was called for.
He made no effort in New York to comply.
He came to Washington.
He was represented by counsel at the hearing which took place here of course or we would not be here.
The United States Attorney's Office for Washington would not be here.
He produced all available material, the financial reports which might have had some burden, some impact upon him, I do not know, he doesn't say so.
But he produced everything except the membership lists.
And he --
Chief Justice Earl Warren: Mr. Hitz, --
Mr. William Hitz: I'm sorry?
Chief Justice Earl Warren: -- do we know from this record whether he had the possession of the membership list or not?
Mr. William Hitz: We know inferentially Your Honor that -- that he did not because after he had failed and refused to produce the membership list here in Washington in answer to the subpoena duces tecum.
He stated that he did not have the material available -- that he did not have the material and would not produce it.
That's the way he put it.
And I will come to that and quote it from the record.
And he said that he would not produce it because he said, "I feel incapable of doing so."
And apparently in context what he had referenced to was as an official of the union he felt that legally he was incapable of disclosing the membership list.
But that was in respect --
Chief Justice Earl Warren: (Voice Overlap) as an abstract question, can a person who does not have possession of records be convicted of contempt for failure to produce them or to do the necessary work which would enable him to get them and make up the record?
Mr. William Hitz: Oh, yes.
If the failure to have them at the time of demand was at his own -- was due to his own fault.
Chief Justice Earl Warren: Well, now, due to his own fault.
Due to the fact that he -- I said that he didn't have them in his possession.
Would that -- could he -- could he still be in contempt?
Mr. William Hitz: Oh, I think so.
I don't think possession in Washington is the determining factor here at all with reference to his contempt.
I think he committed the background of the contempt when he failed to equip himself to comply in Washington when the demand was made.
And I think the possession that he did not have perhaps the possession in Washington is immaterial if he deliberately and intentionally made himself incapable of complying by reason of leaving the material in New York City.
Chief Justice Earl Warren: But my point was in whether he had possession of them in Washington.
Mr. William Hitz: Oh.
Chief Justice Earl Warren: Or whether he had possession of them at all.
Mr. William Hitz: I'm sorry.
I misunderstood --
Chief Justice Earl Warren: Was he the officer who had possession of those or in order to comply with the subpoena, would it have been necessary for him to get them from the possession of someone else and make up the list as required by the subpoenas.
Mr. William Hitz: I'm sorry, I misunderstood the question.
The record is clear that he had the material available to him in New York City and after a demand had been made and this was one point that Mr. Rein did not, I think, sufficiently opened up to the -- to the Court's consideration.
After he had been told by the chairman that we demand the production of the membership lists in answer to the subpoena, and he said, "I don't have them and I don't think I'm capable of producing them," then, and in order to accomplish the legislative purpose that was here involved and it's an important one, the Chairman of the Committee -- of the Subcommittee, Senator Watkins, then probed him as to the possibility of obtaining future compliance upon as then issued oral order for him to comply within 10 days.
And in the course of that, Mr. Flaxer stated that, "I can obtain the material.
It would take me about a week to do so."
And -- then the interrogator, Mr. Arens suggested to the Chairman that there then and now, be given an oral order to produce within 10 days.
And that was done.
And Mr. Flaxer was told to produce within 10 days.
The contempt we say having already been completed with respect to the obedience to the commands of the subpoena returnable on the hearing day on the 5th of October.
Justice John M. Harlan: Do you think it's possible to read this record?
I was looking at it at page 49 and 50.
Although I've taken the premise that it was to be on insistence production on the 5th that that was waived by -- in this colloquy by Senator Watkins and the witness was told then that he could have 10 days more in which to produce?
Mr. William Hitz: I do not.
I think that would be a very strain and torturous interpretation of the record and that it would be strictly an afterthought.
Justice John M. Harlan: What do -- what do you with --
Unknown Speaker: (Inaudible)
Justice John M. Harlan: Excuse me.
Unknown Speaker: Excuse me.
Justice John M. Harlan: What do you do with the last sentence?
"Senator Watkins: That is the oath.
Well, I have to go back to place this."
Mr. William Hitz: Are we still on the fifth --
Justice John M. Harlan: Mr. Arens: "Will you produce -- will you produce it pursuant to the order of the Chairman of this session within 10 days and today?"
Mr. Flaxer: "I will have -- I will have to take that under consideration."
Senator Watkins: "That is the order.
And, of course we will have to take whatever steps are necessary if at the end of that time you have not produced them."
Mr. William Hitz: Well, first, I would like to answer your question by giving my conclusion which is, that this was not a modification of the subpoena direction.
And that it was an effort after the futility of any further demands had been clearly -- had been exhibited because he didn't have the material.
This was a further effort by Senator Watkins to obtain the material nevertheless at what future time it might be able to be provided.
And I would like in that connection, Your Honor, having stated my conclusion, I would like to go back now and attempt to support it to you from the record.
And I think it would be well since we are on this subject of the demand in answer to Quinn and also on the subject of whether or not there was a postponement of the subpoena's requirement that I would like to go back to the initial demand that -- to comply.
Now, if the -- if the Court will bear with me on page 40 of the record -- on page 39 of the record, and I may say in the middle of the page, Mr. Flaxer stated that his office was in New York.
The record at some other point indicates that he was served on Beekman Street in New York City with the subpoena on September 19 to appear on the fifth which is this day.
Then, Mr. Flaxer takes over and he notes that a subpoena had been served on him and he says, "I produced all the items," this is near the bottom.
Mr. Flaxer: "I have some.
I produced all the items called for in the subpoena except one item."
He then goes through the items that he did produce on the next page 40, his bank accounts and so forth, of the union.
And then through the page 40 and the first part of 41, he is addressing himself to that subject and then all prepared for his failure and we say refusal to produce the membership list.
He says on page 41, "I think that sums up the records which are required with respect to the financial status of our organization.
The item which I have not produced is the item on membership list of our union.
The demand for the production of this item raises a number of profoundly serious issues and so forth."
He was interrupted by Mr. Arens, the interrogator who asked, "Are you reading from a prepared statement?"
And Mr. Flaxer said, "Yes."
"And who prepared it?"
And then, as it's noted on the bottom of that page and the -- the next page, half of it, he makes a legal argument, more or less of a legal argument that he is not permitted by -- I think by the law as he said to produce the membership list to an employer having note that it is a government union, government employees' union that he is head of and he said that the Taft-Hartley Act forbids the production of such -- alleged to such a person, that is the employer.
I would like to interpolate, I think he is not correct in that even it would be unlawful or prohibited or an unfair labor practice for him to have been required to produce to an industrial employer in a private industry, the membership lists because it has been held that it is not an unfair practice per se for an employer to inquire of the membership of a union.
Or to inquire of an individual member whether he is a -- of an individual employee, whether he is a member of the union, that there have to be certain aggravating circumstances to the mere interrogation in order to encompass an unfair labor practice.
So that his -- his premise I think is not a correct one here but we're not concerned too much with that, not at all indeed.
And he attempts nevertheless to carry that over into the field of government employment.
That is his objection.
His objection is not to the make-up of the committee.
He made the blanket objection that he was not before a quorum but his real objection is with respect to a privilege that he said he had with respect to delivering over the list of employees.
Justice Charles E. Whittaker: And -- do you suggest Mr. Hitz as to the question, exactly the (Inaudible)
Mr. William Hitz: I do not sir.
Justice Hugo L. Black: What do you say about the statement on page 42, with the first full paragraph?
Mr. William Hitz: Every individual?
Justice Hugo L. Black: A request such as the prevalent in the subpoena constitutes the wholesale invasion --
Mr. William Hitz: Oh.
Justice Hugo L. Black: -- and so forth that it's protected by the Fourth Amendment.
What do you mean by that?
Mr. William Hitz: Well I think he is -- I think there, he is objecting to the production of this particular item under this subpoena.
And having that in mind, I -- I would like to revise and correct my answer to Mr. Justice Whittaker.
I think to that extent pro tanto, he is objecting on the grounds of the -- perhaps the scope of the subpoena.
Justice Charles E. Whittaker: Would that --
Mr. William Hitz: I'd --
Justice Charles E. Whittaker: -- prompt you to proceed?
Mr. William Hitz: Yes.
Justice Charles E. Whittaker: (Inaudible)
On the return date, he appeared this client and has filed (Inaudible)
The Court does give it.
After doing so, he denies the motion.
The Court says, "You don't have to comply with that.
Have to give you 10 days more within which you comply."
Now, has the contempt of the subpoena been committed on that determination?
Mr. William Hitz: Yes, I think so.
I think he should come insofar as he's physically able -- he's able to do so.
I think he should come prepared to add -- to comply with the subpoena.
Justice Charles E. Whittaker: And if he doesn't?
Mr. William Hitz: And if he doesn't, then he is in contempt because he can't assume in advance either one of the two possibilities in his favor.
Number one, he can't assume that the decision of the tribunal is going to be in his favor on his "motion to quash".
Justice Charles E. Whittaker: Can he assume that the Court will give him additional time --
Mr. William Hitz: He --
Justice Charles E. Whittaker: -- if he overruled it.
Mr. William Hitz: He certainly cannot.
Justice Charles E. Whittaker: (Inaudible)
Mr. William Hitz: Well, then he's had -- he's had a -- he's had a ray of sunshine I think brought into his appearance before the tribunal to which he was not entitled and could not expect to see.
Justice Charles E. Whittaker: But having gotten that reaffirmed side does not immunize an otherwise possible contempt.
Mr. William Hitz: No, I think --
Justice Charles E. Whittaker: (Inaudible)
Mr. William Hitz: I think that -- I think --
Justice Charles E. Whittaker: (Inaudible)
Mr. William Hitz: I'm sorry.
I think his -- his contempt is complete and I think that he would then have certain equities on his side with respect to an endeavor to have the tribunal accept a later compliance as a purge.
Justice Charles E. Whittaker: Well, he either come in with objections in --
Mr. William Hitz: Correct.
He certainly did Your Honor.
Justice Charles E. Whittaker: And if the courts passed one at that time, your motion is denied but I'm -- instead of holding you in contempt now, I give you 10 days more.
Now, under those circumstances, has it commenced a contempt to be submitted as a matter of law?
Mr. William Hitz: I think it has but I don't know -- I do not think that the record would disclose a prosecutable contempt.
I think because there --
Justice Charles E. Whittaker: (Inaudible)
Mr. William Hitz: Oh, I -- I think there is because I don't think that in the -- in the -- under the facts that you put to me, that there would be a compliance with the Quinn requirement.
In other words, I think that when he made known his objection and when the tribunal inferentially agreed with it to the point of having excused him for preparing for the production of the documents and making himself ready and able to produce them in Washington.
That then when the committee doesn't pursue it to the point of, we demand the production of the documents here today but instead says, "All right, we've heard your objection, it was no doubt well meant.
You don't have the documents.
We realized that.
We still want them.
We will now permit you instead of complying today, as you can't do, and instead of holding you in contempt today as we can do but won't, we're going to give you 10 more days."
They could do that and we would not be able to try that case under the Quinn doctrine.
Justice Charles E. Whittaker: Why (Voice Overlap) --
Justice John M. Harlan: Well, why isn't that in this record here?
Mr. William Hitz: Well it's not the record for the reason that the Court rejected the legal affirmative defense that was sought to be interposed here to the production of the documents.
With the -- the tribunal rejected that and after rejection, made a formal demand which completed the contempt in this case.
Unknown Speaker: (Inaudible)
Mr. William Hitz: Sorry?
Justice William J. Brennan: As only been a formal demand was the production when?
Mr. William Hitz: Well, the formal demand -- only if I could proceed on because I'm about to get right to that point Mr. Justice Brennan.
Justice Felix Frankfurter: But before --
Mr. William Hitz: Yes, Your Honor.
Justice Felix Frankfurter: You go on, I'm sorry I have to hold you up.
Mr. William Hitz: All right, sir.
Justice Felix Frankfurter: The minute that you will go -- you said that the defendant petitioned in this case may have certain equity impression.
Mr. William Hitz: Yes, sir.
Justice Felix Frankfurter: May I suggest this to you Mr. Hitz.
What you call (Inaudible) maybe such an ambiguous statement, such an ambiguous expression of the command that the witness may well reasonably will, I suppose that he's given those 10 days and that the act hasn't fallen at the minute when Senator Watkins had issued the -- issued the order, let me say, that is the order now because that to which Justice Brennan has asked, that is the order now but he didn't stand, tap it by means of altruisms on that --
Mr. William Hitz: What page are you on --
Justice Felix Frankfurter: And that --
Mr. William Hitz: -- Mr. Justice.
Justice Felix Frankfurter: Page 9 of your brief.
The colloquy between Senator Watkinson and the witness.
Unknown Speaker: (Inaudible) in the record.
Justice Felix Frankfurter: Excuse me, I beg your pardon, I'm sorry.
Unknown Speaker: The petitioner's brief.
Justice Felix Frankfurter: Page 9 and 10.
Now, he doesn't stop, that thing didn't stopped there, there some more colloquy and then Senator Watkins says, "That is the order and of course you will have to take whatever steps are necessary if at the end of the term you have not produced them."
Now, I assume that's the correct transcription of the record.
Mr. William Hitz: I -- I don't dispute it.
I don't know, I'm sure of it.
Justice Felix Frankfurter: Well, I'd say, and I put this to you in order to elicit an answer --
Mr. William Hitz: Yes.
Justice Felix Frankfurter: -- hypothetically.
I'm the last person in the world I think to exact fastidious accuracy of language from members of the Senate or members of the House when engaged in this kind of thing.
But if Senator Watkins says was then, "That is the order.
You've had ample time to produce these arguments.
You come here rejecting our authority or saving our authority.
I grant -- take that into a refusal to obey this (Inaudible)
And therefore, we shall be compelled and refer the case of the United States Attorney," or some such language.
There's some such in the case.
Instead of asking since that is the order, you could produce this, give him 10 days more, and he said -- and if -- that at the end of term you have not produce them, we'll then take whatever steps are necessary.
Now, I put it and since the statute itself must call for a wilful disobedience, a willful disobedience, is this -- isn't this an ambiguous incident.
Isn't the incident ambiguous on the minds of the witness that he may well absorb the situation where if that's the judgment to Mr. Rein earlier that this was an extension of the period within which to comply.
And if it is ambiguous, and I take it the case before is not being a willful disobedience.
I'd like your comment on that.
Mr. William Hitz: I would like to make two answers to that.
First, the part that you have referred to just now of the record is the final statement on that subject.
That is on the subject of attempting to get this material that was made by Senator Watkins.
And the actual demand for him to produce, for Mr. Flaxer to produce in answer to the subpoena and upon the rejection of his objection to doing so occurs much -- much colloquy before this and on page 47 so that my first answer to you is that the demand has already been made.
The content has been complete.
It is then a prosecutable contempt under the requirements of the Quinn case and from then on there is --
Justice Felix Frankfurter: But the Chairman, he might -- the Chairman may change his mind to qualify it or modify it.
Mr. William Hitz: Oh, I think he probably can.
I don't think the part that you've just read Mr. Justice Frankfurter indicates in its full context that the Chairman has changed his mind.
I think he is pursuing now an oral argument, I mean, an oral demand as distinguished from the subpoena demand which has already been rejected by the witness and there has been no compliance under it and in fact he was incapable of complying no matter what had been said at the -- at the hearing.
Justice Felix Frankfurter: Incapable at the end of 10 days?
Mr. William Hitz: No.
Incapable at the time that he appeared in answer to this --
Justice Felix Frankfurter: I know.
But -- but a witness even in contempt proceedings and hearings and you know much more about that than I do, you really give him a notice for (Inaudible)
You give him a chance to change his mind and different Chairman and having Senator Watkins some part of it.
Mr. William Hitz: Well, --
Justice Felix Frankfurter: Will comply to persuade witnesses not to adhere to their accountable position.
Mr. William Hitz: Oh, yes.
But when that's done, the witness is on the stand suffering the possibility of being held in contempt if he does not answer and he is there capable of complying.
And that is the reason why this Court in its good wisdom decided the Quinn case and the Watkins case the basis for both of those cases was fundamental fairness which found expression in those words in the Watkins case to a witness who was subjected to the penalties of contempt because to judge the matter adversely to the rulings of the committee would lead him to contempt.
In other words, a witness who is capable of producing by way of an answer, this witness here, Mr. Flaxer had rendered himself incapable of producing in New York City before he came to Washington.
Justice Felix Frankfurter: Well, but --
Mr. William Hitz: And that --
Justice Felix Frankfurter: -- he may have had maneuvering grounds.
First, if he had said, if that's in his last -- the last amount that Senator Watkins that the order is, if that is the order and of course we will have to take whatever steps are necessary if at the end of the time you have not produced them.
If the witness had conveyed in whatever language however, susceptible or vague or abstraction, that is (Inaudible) if he had said, "Senator, it's no use of giving your -- giving me this order.
I stand on the objective nature of the subpoena and I will appear to them 10 days hence.
Now that for me would be a contemporaneous rejection of what Senator Watkins commanded for the future.
But he then, drawing this note, we give you 10 days and we'll then decide what to do about it.
Mr. William Hitz: We will give you 10 days now.
Justice Felix Frankfurter: Well --
Mr. William Hitz: If -- if Your Honor will -- I'm speaking from the record.
If Your Honor will -- will bear with me for background material for what Senator Watkins has just been quoted by you to say, and indeed he did say it of course.
Let me get to the background of what he said or what he meant, and what had transpired.
I wonder if we could take this and the related matters, closely related matters in one long step and proceed back to page 47 which is the demand to comply with the subpoena.
And just above the -- now, I would like to go back to page 46.
He has been asked to locate in government agencies his Federal Government employees and he has named the Veterans Administration, the Bureau of Engraving and Printing, the Treasury Department and so on.
And then he was asked to give more details.
Mr. Arens: "What other government agencies and by government, I mean, the United States Government, do you have membership in irrespective of the volume of the membership?"
Again, I say I really couldn't tell you.
I am on the record here and I would not want to give you a statement that may not be entirely correct.
You can give your best judgment.
I don't know.
You don't have any judgment on that.
Well, I don't have the facts on the basis of which I can make a judgment because I guess that's the answer.
Mr. Arens: And mind you, this is long after he has stated that he did not bring the material with him or he didn't have it with him.
Mr. Arens: "Mr. Chairman, I respectfully ask of the Chairman that the witness be ordered to produce for this record in compliance with the subpoena duces tecum served upon him the record of the United Public Workers showing the names and addresses and so forth."
Senator Watkins: "Do you understand the request made of you?"
Mr. Flaxer: "Yes, I do."
Senator Watkins: "Do you stand on your statement that you refuse to produce those?"
Mr. Flaxer: "I didn't say I refused.
I indicated the situation as such that I find myself incapable of producing them."
And I'm interrupting -- I'm sure he means that he didn't feel he was legally capable of doing it but he was physically unable to, too.
I think if I complied with the request of that kind first of all, I don't think I have the right either in terms of our membership or in terms of the labor movement generally.
And Mr. Arens: "But you do have the information?"
Mr. Flaxer: "In a general sense, I think I have the information."
Mr. Arens: "And you have not complied with the command of the subpoena to produce that information?"
Mr. Flaxer: "I think that -- I think it is an improper command, sir."
Senator Watkins: "That is the reason you have refused to bring them here today."
And I'm interpolating from New York.
I think the context is clear -- "because you think it is improper?"
Mr. Flaxer: "That is the reason I haven't got them."
Senator Watkins: "That is the main reason.
You are directed by the committee to produce those records according to the terms of the subpoena and there is the demand and the completion we say of the --
Justice Hugo L. Black: Well, he didn't refuse that or he never did actually refuse to doing it.
Mr. William Hitz: Oh, yes.
Justice Hugo L. Black: (Inaudible) careful not to refuse as I read the records.
Mr. William Hitz: Well, he said I do not refuse.
And he said, I mean --
Justice Hugo L. Black: (Voice Overlap) and he argued -- he was arguing with them that they shouldn't make him do it.
Mr. William Hitz: Yes.
He was --
Justice Hugo L. Black: As I read the record, he did not refuse at anytime each time they would -- put those words in his mouth, he was disdained.
Mr. William Hitz: And each time he would say that he's incapable they would tell him that --
Unknown Speaker: He didn't have them.
Mr. William Hitz: They would tell him that he had to produce and he was -- he was fencing with the committee.
I don't think the committee would have to take the -- the advance of this -- the advancement of this objection and the reargument and the reassertion of it time after time so that there's no finality to the proceeding.
I think that Senator Watkins was quite patient in hearing the entire objection in the quibbling.
I -- I say when Mr. Flaxer said I'm not refusing, I'm just not doing it and finally we have the unequivocal demand by Senator Watkins.
Justice William J. Brennan: Yes, but what follows Mr. Hitz, is again, they start the colloquy all over again, and he was asked if he was fencing with the committee.
Are they not in his record, particularly what follows indicates that he's quite assuming -- believed that he ought not to require to turn them over and never actually refused to.
Senator Watkins kept trying to persuade him that the grounds he was taking was erroneous and were wrong and reluctant finally ended up that's the end of it but we'll give you 10 more days.
Mr. William Hitz: Well, I -- I don't think that -- I think that when someone in this situation does not produce when he says inferentially that he cannot produce on the day because he hasn't prepared the documents that even from that day on it will take him another 5 days to do so that he has failed to produce.
Justice William J. Brennan: Well, he failed --
Mr. William Hitz: And --
Justice William J. Brennan: -- to produce and so there's no question about that.
Mr. William Hitz: Indeed he did do that and --
Justice William J. Brennan: He refused to, in a sense -- which in a sense, in that day, I -- just strikes me as though what -- the way the Senator ended up, be it the fact to say, a very patient man.
He always was.
And he says, ‘Well, now look, we just don't have any merits on the grounds so I think you better go back here in 10 days."
Mr. William Hitz: Well, I think that my contextual argument here or rather it's a contextual answer to Mr. Justice Frankfurter, I haven't quite complete it because I think between the point where you have asked me this question and the point where Mr. Justice Frankfurter took up the final remark of Senator Watkins there is some intervening colloquy which will indicate clearly the position which we take namely that after there had been the unequivocal refusal, the failure first which was a refusal which was deliberate and intentional therefore a violation of the statute had been completed by an objection being advanced in Senator Watkins making a demand that there was then an oral effort.
And I'm going to substantiate what I contend here by pointing out in the statements of Senator Watkins that he used the expression "my demand, the present demand".
I am now going to ask you.
And we say that that is an oral demand over and apart from and in addition to the contempt that had already been committed under the demand of the subpoena.
Justice Felix Frankfurter: (Inaudible)
Mr. William Hitz: I think that they maybe occurring to Mr. Justice Frankfurter or other members of the Court that particularly in view of Senator Watkins' last statement that if he had indeed produced the material at the end of 10 days, would we have had the contempt case based upon the refusal under the subpoena on the fifth.
My answer to that is very likely we would not, because there would have been some bit of futility in doing so and the committee would have had the material.
But that would have been for this reason only.
It wouldn't have been because there wasn't a contempt on the fifth in answer to the subpoena.
It would have been because there had been accepted by the tribunal a purge of that contempt and there is the important part of this aspect of this case.
Chief Justice Earl Warren: May I ask you this question then.
Assuming that you are correct in your position that this is a contempt as of the return day on the subpoena --
Mr. William Hitz: Yes, Your Honor.
Chief Justice Earl Warren: -- the time these proceedings were -- were held.
And Senator Watkins said just what he said in this record.
But suppose he did not wait the 10 days.
Suppose he took it to the District Attorney the following day and he was indicted the following day for contempt, could we have sustained -- could we sustain a conviction for contempt?
Mr. William Hitz: Oh, yes.
There's no question about it.
Chief Justice Earl Warren: And then -- and what -- what Senator Watkins said about giving him 10 days in which to comply would be of no effect whatsoever so far as -- on bearing on the question of contempt.
Mr. William Hitz: Not under these facts.
And the reason that I say that is two-fold.
First, the witness cannot enforce upon the tribunal a purge.
A purge that is a later a compliance after a refusal which amounts to a contempt has to be accepted by the tribunal in order to be a purge and that was decided by this Court in the Norris case.
That's a partial answer.
In addition to that however, the -- I think Your Honor or I think perhaps I should stress again that there has been no misconception given to the witness when he's on the stand by the demeanor of the committee or anything that was said by its chairman which led to the complacency of the witness which might have resulted in his failure to comply.
In other words, the situation is not one where there is a refusal to answer and the capability of answering.
In other words, there has been no lulling into complacency that the objection has been sustained or that for some reason the tribunal has changed its mind and that witness, this witness Mr. Flaxer, was not capable of complying with this subpoena at the -- on the fifth of October when he was before the committee.
And he had rendered himself incapable of it.
So that the very equities which caused this Court to decide Quinn and Watkins are not present nor is the danger to Mr. Flaxer at present which this Court remarked upon.
This Court remarked upon the danger to the witness Watkins in deciding without enough information something which where it cause him to go to jail for contempt, and that he was entitled under the doctrine of fundamental fairness to be informed.
We don't have a Watkins witness here.
We have a witness who was not able to change the course of his intent, his refusal at the time that this prior colloquy or anything else was said or could have been said to him in Washington.
Justice Felix Frankfurter: Well, then and as to this view, in the suggestion of 10 days is a -- was a -- quite a futile thing for Senator Watkins to do.
Mr. William Hitz: It so turned out.
Justice Felix Frankfurter: No.
There's no question that it still turned out.
It still turned out but even they had some purpose, they're not saying -- they're not stopping where you said the contempt was complete.
Mr. William Hitz: Oh, yes, he did.
Justice Felix Frankfurter: (Voice Overlap) -- He didn't stop there because he said even at that -- if it's stopped there, if he stopped there then there would be no problem here on this aspect of the case.
He didn't stop then for some reason of his own.
He then gave him 10 days more presumably.
I don't think one could give too much for Senator Watkins presumably because he thought the witness might change his mind and would obey within 10 days.
And all I'm putting to you is the weight of the consideration, the question for all the contempt was completed in the -- in the complete statement of the record.
It was a kind of an ambulatory performance.
He didn't stop there.
He went on, and he went on and he finally said well, "Well, we'll give you 10 days and if then you don't have it, ifd then you don't produce, we'll consider what steps we'll take.
Therefore, I think -- to me, this is a case where the Chairman did qualify at least left enough with an impression on the witness to infer that he did qualify and gave him the 10 days.
And so the question is since the prosecution did -- does turn on the contempt on the fifth, that's correct, isn't it, Mr. Hitz?
Mr. William Hitz: It is.
Justice Felix Frankfurter: In view of the charge and all the rest.
Mr. William Hitz: It is.
Justice Felix Frankfurter: So, that the question here is one of criminal procedure really and making out of case in view of this kind of a record that there was a willful disobedience concluded on that case.
Justice William O. Douglas: (Inaudible)
Mr. William Hitz: If it -- I'm sorry.
Justice William O. Douglas: Your arguments in the brief, if that was (Inaudible)
Mr. William Hitz: That it was resolved by what?
Justice William O. Douglas: By the jury where they held -- they found and he did refuse to comply and that goes (Inaudible)
Mr. William Hitz: Well, I think that's the -- I think that could well be considered the final answer to this question.
I'm giving many preliminary ones as I have been asked.
I was coming to that and I don't think there's any possible answer to the point that the jury under complete and adequate inspections on this particular point came in with a verdict that he did indeed intend to, under the criminal intent that's involved here, the very simple one of an intentional act did intend to refuse to produce the documents on this day.
However, I would like and I'm glad to mention that Mr. Justice Clark because I may have forgotten it although it's adequately in our brief.
And of course, we do not need to discuss the importance and the weight which might even be a finality on that point where we have a jury question decided upon proper instruction.
Justice William J. Brennan: Well, isn't that -- isn't that involve here though that any criminal charge open a motion for judgment of acquittal on the ground, isn't it, which is evident of the presiding jury (Inaudible)
Mr. William Hitz: Oh, yes.
Justice William J. Brennan: If denied, a jury can then -- a verdict of guilt (Inaudible) never gone to the jury, now isn't that the problem before us?
Mr. William Hitz: Well, if this record is considered by the Court, of course to be so insufficient on the matter of --
Justice William O. Douglas: Willfullness.
Mr. William Hitz: -- of willfulness, of course the matter should not have gone to the jury.
Justice William J. Brennan: So, that's the fact that the jury came up with the verdict, it doesn't really stated any, does it?
Mr. William Hitz: Well, I think -- I think it does on these -- on these facts.
I would like to make this suggestion.
I feel that I have not sufficiently made this clear.
The equities that have been advanced by Mr. Justice Frankfurter and others, namely, that it's possible that he might have complied in answer to a 10-day extension of time within which to comply with an oral order.
And if he had done so, we would have factual equities which would have affected his completed contempt on the bill.
And there is where I think we are confusing this record.
I am too.
I didn't mean to, and I hope I haven't caused the confusion.
But I think there is confusion here with respect to a contempt that was complete because it could not have been corrected no matter what the committee said, did, or met with.
And the desire and Mr. Justice Frankfurter said what would be Senator Watkins purpose in giving the 10-day extension, I'm glad to have that opportunity to answer.
The purpose he had was the legislative purpose which he had in the beginning namely to obtain this information, and he wanted it.
He wanted it more than a prosecution for contempt.
And when he didn't get either one, then it was time to look back and find out was there a contempt indeed by this person who was a "contemptuous" witness because he didn't give an answer to the oral demand.
He said, "I will think it over."
Justice Hugo L. Black: Well suppose -- I don't quite understand how you said so clear maybe that they have been contempt.
But how you said so clear, what you have in a situation when a man objects, he did on 35,000 names which we don't know whether they had to cuff him or whether they had to bring him up in his automobile, or how they bring about.
He objects on the ground that that's a non -- which conveyed his rights under the Fourth Amendment which may or may not be applicable.
The Chairman, as one would (Inaudible) have to do, treated the matter seriously and discussed it with them.
They continued to discussed it and the Chairman took the view of it and finally said that, "Well, you can have 10 more days."
It's surprising that was not -- not proper proceedings for any court or committee, in connection with an objection generally raised on what is not claimed and out of frivolous terms.
Mr. William Hitz: Well, I -- your -- I -- I agree with the facts.
I disagree with the conclusion.
You suggest perhaps that this was a proper procedure.
That I agree with.
Because Senator Watkins wanted to obtain the information, however, I disagree with the premise of Mr. Justice Black in your question, which is that there was an extension of the original demand.
Justice Hugo L. Black: I mean, it was not -- it was frivolous on this.
I've known for a certain subpoenas, it required a tough law to bring (Voice Overlap) --
Mr. William Hitz: Oh, yes.
Justice Hugo L. Black: -- the papers.
A man would sometimes raise objection to say, "That's too much.
It cost me too much.
It's withdrawn and so forth and so forth."
And objection could be made on a genuine and sincere basis.
Now, I suppose if -- if the thing of this kind had occurred, the man has been asked to bring up that notice, he came up and said that as he did, "I -- I want to discuss the issue is invading, like, he's going further, and you have a right to do."
He wouldn't be in contempt because he didn't bring them up before he had a right to discuss that order now, would he?
Mr. William Hitz: I think not in the truckload situation that you mentioned but we don't have that fact here.
Justice Hugo L. Black: I don't know how much this was.
I don't know how long it would have taken, how much it would've cost, a copy of 35,000 names.
Mr. William Hitz: And neither did Mr. Flaxer because he didn't advance that.
Justice Hugo L. Black: No -- but he -- he advanced the objection -- the Fourth Amendment objection which is a pretty broad objection.
Mr. William Hitz: He didn't advance it because it was obstructive to his operations of the union or obstructive to his presence to that the committee that he could not do it physically.
Justice Hugo L. Black: It was treated by the Chairman as a -- as a genuine objection as one would expect that Chairman to do.
And they had a discussion about it.
And why -- why can you say and maybe it's true but why can you say that under those circumstances there is clear contempt already committed.
But what he has done is to raise objection.
Mr. William Hitz: Well, I -- I think --
Justice Hugo L. Black: The failure to say and declining to refuse to bargain but continued to argue with the committee that they shouldn't bring them on -- should require under law when public.
Mr. William Hitz: Well, our -- our position on that Your Honor is that he was capable of equipping himself in New York where the papers were, the tools were.
He was capable of equipping himself to comply in Washington on the fifth.
And he didn't have the so-called truckload which has appeared in -- in many legal arguments, a truckload of information which made it too burdensome for him to bring it.
He was capable of doing so.
And when he made up his mind during the 19 days interim between the service of the subpoena and his appearance here, he then decided upon the course he was going to take that he was going to rely upon this legal argument that the Government employer was not entitled to the employee's names and he came to Washington and he took that chance.
And when he advanced it --
Justice Hugo L. Black: Well, he took the chance of making an objection which was perfectly a legitimate objection.
It's not frivolous, wasn't it?
Mr. William Hitz: It borders on the frivolous.
Justice Hugo L. Black: You think -- well, of course if its true (Voice Overlap) --
Mr. William Hitz: Oh, I think it does.
Justice Hugo L. Black: -- and not a game in objection.
That that -- I can understand the basis of your argument that you're making on.
Mr. William Hitz: Well, I --
Justice Hugo L. Black: I don't quite understand it unless (Inaudible)
Mr. William Hitz: I think he probably made the objection or -- let's say, I will not contest his good faith in making the objection.
I hasten to say if the Court well -- is aware by good faith, even good faith instilled by advice of competent counsel is not a defense to the contempt under this statute.
But he may have thought that he had a point.
But he took the chance if he was capable of producing, he took the chance that one of two things would happen, either that he would have his objection rejected and a demand made with finality.
Or, second, that he would be given additional time having been informed that he had his objection rejected.
That he'd be given additional time, not an extension, but additional time to comply.
And he took that chance and his objection was overruled.
He was given time within which to reply an answer nevertheless and he didn't do that.
I think that -- but I have not been able --
Chief Justice Earl Warren: Mr. Hitz, may I ask you a very simple -- about a very simple contempt case?
Suppose a man was served a subpoena duces tecum and on the return day, he came into court and the judge says, "Have you the documents?"
And he said, "No.
Your Honor, I haven't been -- I've just been too busy and I haven't been able to get around to it."
And the judge is very much provoked, and he says to the man, "Now, you have not acted fairly with this Court.
You should have given that time to -- you should have brought those things here."
Well, he said, "I just haven't done it."
And the Court says to him, "Well now, in spite of the -- your unfairness to the Court, I'm going to order you to bring those in 10 days from today and if you don't, you have to take the legal consequences."
Has he committed a contempt on that first day?
Mr. William Hitz: He has not, Your Honor.
Chief Justice Earl Warren: What is the difference between that case and --
Mr. William Hitz: There is a failure of the intent to refuse or the intent to disobey which is a refusal.
There is a failure of the criminal intent in that case because under your facts, he said that he did not have a time to do it.
And we'll assume that he was correct in that.
So, he can't --
Chief Justice Earl Warren: No.
We don't have to assume he's correct in it.
We assume he's -- he was wrong and that the judge felt that he was wrong.
The judge says, "You've dealt unfairly with the Court.
And -- and you did have a time and you should have had them here.
But I'm going to give you 10 days more to do it and if you don't bring them within that time, I -- you have to take the legal consequences."
What -- what about that?
Where is the difference between that case and this?
Mr. William Hitz: I don't think there is any.
I think that if you put into your question that it's not necessarily a physical incapacity under which he was laboring, that is if he could do it, he could have done it but he came in and he said, "I didn't have time."
Chief Justice Earl Warren: Yes.
Mr. William Hitz: That then becomes a jury question as to whether or not he intended to refuse to produce the documents under the willful intent of this statute and that is submitted to the jury.
Chief Justice Earl Warren: And even though the judge said, "I'm going to give you 10 days more in which to produce the documents.
And if you don't do it by that time, you have to take the legal consequences," that -- that they could find him guilty of contempt right then and there.
Mr. William Hitz: I would -- I would even go that far although we don't need to in this case.
I think that where he has incapacitated himself from producing that the -- what transpires at the hearing does not affect the intent that he had when he was unable to comply.
He's entirely differently situated than the witness who can answer a question.
Because when the witness can answer a question, we have the Quinn case and we have the Watkins case if he qualifies for the Watkins ruling.
And we have the acts of the Committee Chairman affecting the disposition of that witness with respect to compliance as he stands on the witness -- sits in the witness chair.
And if the ambiguous statement or if they offered to purge in the next period of time has given him, then he does not have a conscious choice on the witness stand to refuse to answer or to answer it.
He has been misled.
He has been given -- he's been lulled into complacency as the case has hold.
And it's unfair to him.
He has not achieved the criminal contempt necessary for violation and he would not be guilty.
If however, he is not on the stand capable of producing and complying such as the case we have here, in that case the statements made by the Chairman to him would not affect his criminal intent, would not affect his ability to comply, it would affect the possibility of a later purge which is not of his doing.
Chief Justice Earl Warren: We'll recess now.
Argument of William Hitz
Mr. William Hitz: I like however to attempt to (Inaudible) of actual picture before I leave this point and to illustrate by the record, the conclusion that we draw, namely, that the final remarks of the -- of the Chairman, Senator Watkins that there would be 10 days within which we say there can be further or another attempt to comply, another opportunity to comply but that was indeed a second order after a completed contempt.
I would like, leave of court, to please invite its attention to page 48 of the record.
Now, after the demand that we say was a final demand and completed this picture, on page 47, Mr. Flaxer again endeavors to reopen the matter advancing again his Taft -- supposed Taft-Hartley argument of incapability of performing the compliance with the subpoena.
And at the bottom of page 48, Mr. Flaxer concludes this effort by saying, “Sir, I don't think the issue has ever come up before.”
Mr. -- Senator Watkins then indicating again the finality of the position that he takes with respect to the failure to comply in answer to the subpoena states, “Maybe it has not but I do not think any court would ever resolve itself against the United States finding out what organization its members belong to.”
There, he finally puts to rest this affirmative defense that Mr. Flaxer has brought into the hearing room.
And from then on, there is the second effort to obtain the documents in answer to the deep-rooted legislative purpose here and Mr. Arens then gets down to the immediate subject.
“What can we do next to seek compliance?
How long would it take you, Mr. Flaxer?”
And so forth.
“Could it be done in a week?”
It could be -- imagine it could be done in a week and he is given 10 days or at least, the interrogator, Mr. Arens says -- suggests 10 days and Senator Watkins then said, “Since you have made the reply that it could be done in a week, that will be the order -- that will be the order of the committee.”
Now, he doesn't say, “We are releasing you from the subpoena.
That will be the order of the committee, that you submit that information as requested by counsel not as extended from the subpoena for the committee within 10 days from this date.
The record will show that you, of course, have been given that notice not an extension, not notice and that requirement has been made and the order has been made.
Not an extension of the subpoena, it's a new order.”
Chief Justice Earl Warren: You make the distinction between “that will be the order” and “that is the order”?
Mr. William Hitz: No, I make the distinction between order and subpoena between “this is the order” or “that will be the order” either one but he doesn't say we will extend the time for compliance under the subpoena.
We think that's extremely important.
Chief Justice Earl Warren: Well, may I ask you this?
Mr. William Hitz: Yes, Your Honor.
Chief Justice Earl Warren: Just take the -- the last question and answer toward the bottom of page 50 where Mr. Arens says to Mr. Flaxer, “Will you produce it pursuant to the order of the chairman of this session within 10 days from today?”
Mr. Flaxer, “I will have to take that under consideration.”
Senator Watkins, “That is the order and of course we will have to take whatever steps unnecessary if, at the end of that time, you have not produced them.”
Now, do you -- do you contend that it -- it -- that is tantamount to Senator Watkins saying “I find you in -- in contempt of the -- of the committee but I still order you to bring these -- bring these documents before the committee within 10 days”?
Mr. William Hitz: I certainly do.
Chief Justice Earl Warren: You think there is no distinction between that language and this.
Mr. William Hitz: Well, I'm not sure that I understand the last -- the last question.
I agree with what --
Chief Justice Earl Warren: It would have the same effect, let me say, if that was -- if that was said?
Mr. William Hitz: That is new oral order was one that would have to be complied with or there might be a second contempt.
Chief Justice Earl Warren: No.
Bearing on the question as to whether a contempt is committed on this day, the return --
Mr. William Hitz: Yes.
Chief Justice Earl Warren: -- day of the subpoena.
If instead of -- of this question and answer which I have read to you in Senator Watkins' statement “that is the order and of course, we will have to take whatever steps are necessary if at the end of the time, you have not produced that.”
Is that any difference?
Does that convey any different effect than if he had said, “Mr. Flaxer, I find you in contempt for what you have done in not producing these records today and I now direct you to bring them here 10 days from now”?
Mr. William Hitz: I don't think if effects the instant contempt completed on this day of hearing --
Chief Justice Earl Warren: Yes, that's -- that's what I --
Mr. William Hitz: -- under the subpoena.
Chief Justice Earl Warren: Yes, that's what I --
Mr. William Hitz: And I would like to emphasize, and this was going to be the last contextual point that I was going to make here, I would like to emphasize exactly what Your Honor has read which is Mr. Arens' last statement, “Will you produce it pursuant to the order of the chairman of this session within 10 days from today” is not extension of time.
We say from that and other contextual items in here.
Justice Potter Stewart: Well, the difficulty is with the answer to that question.
He didn't say no or he -- he didn't indicate now.
He said, “I will have to take that under consideration.”
Mr. William Hitz: Yes, yes, he did.
Justice Potter Stewart: And doesn't that, in your mind, raise some question as to whether or not he indicated a purpose to disobey the order at -- on that day?
Mr. William Hitz: Well, I think it does.
I think not only that but it indicates that he would certainly not necessarily comply within 10 days and might well not comply.
And indeed, he didn't comply and he wrote a letter and he said, it is in the record here some place I think in the government brief, that “I'm not going to comply and for the same reasons that I didn't bring the records to your hearing”.
Now, if the order to produce within 10 days, issued orally by Senator Watkins, was an extension of time and if it obliterated the effect of the failure and refusal to produce under the subpoena on the day of hearing, that oral order to produce in the next 10 days, then would have been and must necessarily be considered a change and a modification of the subpoena and it must be then with the power of the Senator Watkins to do so.
We don't think.
We think that he had the power to issue the oral order.
We do not think he had the power to change the subpoena duces tecum's terms.
And again, I repeat that the doctrine of fundamental fairness which gave birth to the Quinn and the Watkins cases does not pertain to the facts in this case and does not in any way influenced Mr. Flaxer as he was on that stand incapable of producing and complying.
Justice Felix Frankfurter: Mr. Hitz.
Mr. William Hitz: Yes, Your Honor.
Justice Felix Frankfurter: When you say he did not have power to change the subpoena, what did you say?
Mr. William Hitz: I said that the subpoena returnable under its terms and on the day was one that he was bound to comply with and that the order of the --
Justice Felix Frankfurter: I don't mean Flaxer but as to the Senator -- I thought -- evidently I misheard.
I though you said Senator Watkins had no power to change the terms.
Mr. William Hitz: I think that's probably true.
I would like --
Justice Felix Frankfurter: If that be true, I want to ask you but surely he would have power to extend the time for compliance, wouldn't he, if he -- if he's given this one man power under the new -- under the changed resolution of Chairman (Inaudible)
I can't imagine that he was denying the implied power of -- when a witness appears before him and say “Very well, you couldn't or one reason or other comeback next Monday.”
Wouldn't he have that power?
Mr. William Hitz: I think that -- I think the end result that you anticipate and which I anticipate can be arrive at in this fashion that he would have the power and probably, the right to consider that they would not pursue the contempt but I think that where the rule require, the senate rule requires that subpoena shall issue over the Chairman's signature, and that does happen.
I don't know whether one individual member of a -- of that Subcommittee sitting as a short quorum can say “We're going to completely disregard the terms of this subpoena and you don't have to comply.”
I think that he may well -- could have been overruled if he attempted to do that.
He didn't do it but if he had attempt to do it by way of illustration, I think that the Committee could overrule him and say that “We want the Chairman's subpoena which was served on the 19th in New York City honored.
And you, Senator Watkins had no power at all to tell him at the hearing when he was incapable of complying that his contempt could not be treated as a contempt.”
Justice Felix Frankfurter: But -- but he could have been overruled also on his ruling that the claims (Inaudible) than he could.
He could have been -- he could be overruled on that.
Mr. William Hitz: Oh, I -- I don't --
Justice Felix Frankfurter: I take it the whole point of delegating power into a single member to change the revision of the rules was to make him for all practical working purposes of the State, the boss of the inquiry.
Mr. William Hitz: Well, I think that's quite true with respect to, not only ruling on objections, but also to receiving documents and also to passing on the documents.
But whether he bury the terms of an outstanding subpoena, I think is a different question.
Chief Justice Earl Warren: Well, what purpose would it serve then for -- for a man to make any kind of objections before Senator Watkins if he had no power other than to direct him to answer in accordance with the subpoena and that if he didn't answer it, he'll be guilty of contempt?
Mr. William Hitz: Well, Justice Frankfurter put to me after a mark that I made does the -- does the one man short quorum who is a person other than the Chairman of the Committee, does he have the right to bury the terms of a subpoena issued under his -- under the name of the Chairman?
My answer to that is he probably does not.
However, your - your question to me, Mr. Chief Justice, is does the short quorum -- Senator Watkins have the power to rule upon an objection?
I think that's implicit in the fact that he was given that power to sit and conduct a hearing.
I don't think the two are -- are related.
Chief Justice Earl Warren: Well, would it go to the extent of giving Senator Watkins the power to -- to say “I agree with your objection”?
The subpoena is not valid so far as you are concern.
You may be excused.
Does it have that -- does he have that power?
Mr. William Hitz: I think he does at the time of the hearing.
Chief Justice Earl Warren: Well -- now, suppose -- do you -- you say but he committed the contempt in not -- in not bringing these documents at that particular time.
Suppose after Senator Watkins took that position, the whole Committee decided to commit him for contempt, would it be in order?
Mr. William Hitz: That is that Senator Watkins took the contrary position?
Chief Justice Earl Warren: No, no.
Senator Watkins says “I agree with your -- with your objection.”
Mr. William Hitz: Yes.
Chief Justice Earl Warren: It is not pertinent -- pertinent or to draw or some -- something of that kind and you may be excused in answer -- before he answer the question.
Now, you throw doubt on whether he has that power or not.
Mr. William Hitz: No --
Chief Justice Earl Warren: (Voice Overlap) --
Mr. William Hitz: -- I'm sorry.
I do not.
I throw doubt on whether or not he could change the terms of the subpoena.
That is the -- the date of compliance.
I think --
Chief Justice Earl Warren: Well, let -- let's put it this way then.
Let's say that -- that there -- the -- the subpoena directed him to bring not only the list of the members in the federal government but the list of members in the state and county governments.
Suppose Senator Watkins said, “I think that the subpoena is too broad and I will direct you only to -- to bring those that are in the federal government and the rest -- as to the rest of the subpoena, it's -- it's quashed.”
Now, did he have power to do that?
Mr. William Hitz: I think so.
Chief Justice Earl Warren: All right.
Mr. William Hitz: I think he has power implicit --
Chief Justice Earl Warren: Well, what power doesn't he have then?
I understood you to say that he didn't have any -- any power to bury the terms of that subpoena.
It seems to me that that's very -- very greatly if he says “All you have to do under this subpoena is to bring in the names of those that are working for the federal government but you are not require to bring in those that are working for the state government or the county government.
Isn't that modifying it just as much as giving a man more time to comply?
Mr. William Hitz: It is modifying it but I think that where new material is brought before the person who is the presiding officer at the time that had never been submitted to the Committee before and if he considers it to be a reasonable departure such as you need to bring in the -- the municipal matter, I think that he can excuse that witness on the stand from complying with that part of that subpoena.
I do not feel that he could say, “Now, this entire subpoena that has been issued by our chairman as required by the rules, and I did not issue it, you may disregard this completely, and you may turn this material over to us in 10 days.”
I do not feel that he has that -- that power.
I don't think that bears from the question.
It may be illustrative of ceratin of the aspects of the discussion here but it certainly doesn't control our case.
I -- I would like, before leaving this point, and I would like to ask the Court to recall the case of Brian which has much in it, not only factually but much that were said in it like the case that we have here.
I will not -- I will not read from it.
I would just like, if the Court please, as requested in our -- in our brief, to note the similarities factually and legally in that case.
And I thank you very much for your indulgence.
Chief Justice Earl Warren: Mr. Rein.
Argument of David Rein
Mr. David Rein: I'll make just two brief comments.
First, to address myself to the question raised by Justice Whittaker during the argument about whether or not this statement of -- of Mr. Flaxer be -- could be considered as a nature of a motion to quash the subpoena.
I like to bring the Court's attention to page 42 of the record, the last paragraph of Mr. Flaxer's statement which he used this language, and I think it throws light on that question, “I am confident that the members of this committee, after considering my views and after the study of the full implications of the request made in the subpoena, will realize its conflict with the basic union tradition of this country now incorporated to federal law and withdraw the demand for membership list.”
So, I think in effect what he was doing was asking the Committee to withdraw his opinion.
One other point I want to address myself to very briefly and that was the point raised from the brief of the Government.
I don't think Mr. Hitz got to accept by reference to the Brian case, and that is the Government takes the position that the petitioner here cannot avail himself of any of the events -- of any of the events that occurred at the hearing because says the Government “Even if he had them properly directed by a quorum to answer and as appropriately had the pertinency of the questions explained by a quorum, he would, nevertheless, have refused to answer.”
We understand the doctrine of Watkins.
This Court does not speculate as to what a witness would have done if the requirements which were imposed upon the Committee by the Watkins case are not met.
And that as long as those things are not met, it's unnecessarily to consider as to what the witness would have done.
As a matter of fact, the Court did not do that in Watkins, and it did not do that.
And I like to bring to the Court's attention the fact that in Watkins, the witness even more strongly than here indicated that he was going to refuse to answer.
I do not -- I'm reading now from the opinion of this Court in Watkins on 185.
There, Watkins said, “I do not believe that such questions are relevant to the work of this committee nor do I believe that this committee has the right to undertake the public exposure of persons because of their past activities.
I may be wrong that the committee may have this power, but until and unless a court of law so holds and directs me to answer, I most firmly refuse to discuss the political activities of my past associates.”
I think that this is clearly in conflict with the argument of the Government here that the true basis, the Government puts in its brief, the true basis of petitioner's refusal to answer was his objections that it was -- the subpoena was in violation of the Fourth Amendment and was not on the ground of the events that occurred at the hearing as I say that that is no reason or whether that can be raised with the defense.