DEUTCH v. UNITED STATES

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Argument of Henry W. Sawyer Iii

Chief Justice Earl Warren: Number 233, Bernhard Deutch, Petitioner, versus United States.

Mr. Sawyer.

Mr. Henry W. Sawyer Iii: May it please the Court.

This case is here on writ of certiorari to the Court of Appeals for the District of Columbia.

It's an appeal from a conviction of contempt of Congress.

The facts are these.

The defendant -- the petitioner Deutch was subpoenaed and pursuant to subpoena, appeared in Washington with his counsel.

He, there, went to the House Office Building and was then show into a room in which a number of unidentified gentlemen were present.

He was sworn, this being a subcommittee of the House Committee on Un-American Activities, he was sworn and the questioning commenced.

At this moment, he knew two things.

That he had been subpoenaed and that according to newspaper accounts, a man named Ross Richardson who had been a Cornell, a classmate of Mr. Deutch's had named him as having been a member of the Communist Party while he was a graduate and also an undergraduate student at Cornell.

This letter about Mr. Richardson who was at that time an agent, an employee of the FBI he knew only from a newspaper account.

The subcommittee as it transpired by a later publication of a committee text was composed of Congressman Jackson as Chairman, Congressman Doyle and Congressman Scherer.

It appears that this Committee never heard any other witness on any other subject.

The questioning after the witness was sworn commenced as follows.

The Committee counsel turned to Mr. Deutch and said, Mr. Deutch during hearings at Albany last week --

Justice John M. Harlan: What page is this, Mr. Sawyer?

Mr. Henry W. Sawyer Iii: On page 5 of my brief, sir, and also on page 16.

If I may read it aloud, Mr. Deutch during hearings at Albany last week, the Committee heard testimony regarding the existence of a Communist Party group or cell operating among undergraduates of Cornell University among certain graduates at Cornell and in the City of Ithaca.

In connection with that testimony, the Committee was informed that you were a member of one or more of those groups.

If so, I would like to ask you certain matters relating to your activity there.

Were you a member of the Communist Party at Cornell?

After objecting to the jurisdiction of the Committee and under protest as Deutch said as to the constitutionality of the proceedings, Deutch stated, "Yes, he had been a member of the Communist Party that he no longer was."

He then proceeded under questioning to tell all about the size, the nature, the scope, the activities of this student group.

In the course of that he said this and I would like to quote if I may.

He said, When I was a -- in the Communist Party, all that happened were bull sessions on Marxism and some activities like giving out a leaflet or two.

The people I met did not advocate the overthrow of the Government by force and violence.

And if they I had, I would never have allowed it."

He then told about how Mr. Richardson, the FBI employee was his group leader, how he collected his dues and took him to meetings.

In fact, he said the last meeting that he had had was with Mr. Ross Richardson alone.

He told how the campus group became defunct.

How it consisted of about four or five people in the proceeding period that before it became as he said virtually defunct.

He said he never knew where the local branch of the Communist Party was.

He didn't know of the central Committee of Ithaca or what it did.

He said that Andy was the only graduate student.

He was cross-examined on the question --

Justice Potter Stewart: Which have been very recent, a year or two before the (Voice Overlap) --

Mr. Henry W. Sawyer Iii: Yes sir that's correct quite --

Justice Potter Stewart: Yes.

Mr. Henry W. Sawyer Iii: -- quite recently within just cutting the last meeting with Ross Richardson if that's counted as a meeting of the Party, it would -- would have been just within the year, and because of the period I speak of when he went was April 1954.

Justice Potter Stewart: And this -- and this -- the petitioner was fairly newly out of Cornell.

Mr. Henry W. Sawyer Iii: Yes, sir.

He was at the time called a graduate student of Physics at the University of Pennsylvania, and having left Cornell and had been at Cornell a year before.

Justice Potter Stewart: Yes.

Mr. Henry W. Sawyer Iii: He was cross-examined on the remark and his point about force and violence by Congressman Jackson.

The Committee seemed satisfied that Deutch didn't know any of the people he knew had ever advocated or believed in force and violence, and that he had himself the witness no knowledge of what the ultimate objectives of the party leadership might be.

This having been put to him and he said, No, of course I only know about the people that I knew.

He did refuse to answer five questions.

Each of those questions relate to another person and the answer to each of them would require the disclosure of the name of another person.

Those indictment questions were reduced to four by reason of acquittal on Count 3 and those questions appeared in the brief.

Excuse me, Your Honors -- up to pages 8 and 9.

Were you acquainted with Homer Owen?

Who it was that recruited him?

One other student was that he's been asking to join the party, the source of the contribution of $100 and the name of a man who was believed to have been a member of the faculty.

He was cited for contempt and was tried before Judge Holtzoff without a jury, sentenced to three months in jail and $100 fine.

The Court of Appeals affirmed and this Court granted certiorari on October 10th, 1960.

Justice Potter Stewart: Mr. Sawyer --

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Potter Stewart: -- with respect to that -- the sentence imposed by the District Judge and as our job here, to me the sentence is a little ambiguous.

Do you understand it to be a sentence of 90 days on each count?

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Potter Stewart: To run it concurrent?

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Potter Stewart: Let the -- in the paragraph phase in more recently in Wilkinson case -- the Braden case rather.

We thought that since concurrent sentences were imposed on each count, it was enough if the conviction on any one count were sustainable.

That is with respect to anyone questioned.

Mr. Henry W. Sawyer Iii: Mr --

Justice Potter Stewart: But since here the total sentence was for 90 days for all four counts without any explicit imposition of concurrent individual sentences and a total fine of $100 for all four counts.I wondered if that same approach would be taken care (Voice Overlap) --

Mr. Henry W. Sawyer Iii: Oh, I misunderstand --

Justice Potter Stewart: -- examine all four of the questions.

Mr. Henry W. Sawyer Iii: Mr. Justice Stewart, I misunderstood.

I thought you were asking me whether or not he was sentenced to a total of 90 days or whether he was sentenced to a total of 90 days of times four.

Justice Potter Stewart: No.

Mr. Henry W. Sawyer Iii: We -- we both can agree that the maximum sentence which he would serve would be 90 days.

Justice Potter Stewart: On all four counts.

Mr. Henry W. Sawyer Iii: On all four counts.

Justice Potter Stewart: That sounds (Voice Overlap)

Mr. Henry W. Sawyer Iii: Judge Holtzoff did not specify that he was sentencing separately and that they were concurrent.

He didn't say one way or the other.

If I recall the record on that point, he just simply didn't say.

Justice Potter Stewart: So that in that -- for that reason, the approach taken on the Barenblatt case and then in the Braden case with respect to our being able to confine the examination to one question that we found -- one indictment good that was sufficient, that approach is subject to some doubt on this case, isn't it?

Mr. Henry W. Sawyer Iii: Well, Your Honor I have not argued it and until this moment at -- very frankly, that has never occurred to me.

I've argued this case and the Government too and the Court's -- the appellate courts below have treated it as if the sustaining of one count would be sufficient although in passing I note that they sustained all four.

Justice Potter Stewart: Yes.

Mr. Henry W. Sawyer Iii: And I would be less than candid if I didn't own to.

You're right Justice Stewart that this is not a point, which I had a brief nor had even occurred to me until you suggested it sir.

Justice Potter Stewart: Well, maybe there's nothing in it.

It's just --

Mr. Henry W. Sawyer Iii: Well, I hope there is, sir.

I am not, however, in a position to help Your Honor my argument because I haven't -- haven't briefed the point.

I have four points if I may proceed, Your Honors.

Four points of the argument are first of all the almost now traditional Watkins' point of subject matter and the pertinency of the questions thereto.

The second point unique in this case is the fair of the Government's proof at trial to conform at all with the record and the change -- since the Barenblatt case in the Government's position as to what the subject under inquiry was.

The third point is that in the context of this kind of investigation and with the information so fully supplied by the witness that the names of individuals per se could never be acquired in this kind of investigation pursuant to a valid legislative purpose.

And the fourth point is that in applying the balancing test suggested by this Court in the Barenblatt case between the First Amendment rights of the petitioner and the investigative power of the Congress that if there is ever to be a case in which that balance must still in favor of the First Amendment in terms of congressional committees, it -- it must be this one.

Now, the first point which I have designated as the Watkins' point, I must perforce by reason of time deal with in a most summary fashion.

We know that the requirement of this Court has been that the subject matter and the pertinency of the questions thereto appear to the witness at the time with indisputable clarity.

On this, we must recall that we now are talking about subject matter and pertinency of the questions only those that the petitioner refused to answer whether it was clear to him that the subject in general was communism at Cornell would not satisfy the requirement of the particular question such as Homer Owen, such as the source of $100 contribution, such as the student who recruited him, that pertinency and the link between it and the subject matter we say must appear with clarity.

Justice Potter Stewart: As --

Mr. Henry W. Sawyer Iii: On the --

Justice Potter Stewart: -- far as we -- we're entitled to look at the whole record, didn't we (Voice Overlap) --

Mr. Henry W. Sawyer Iii: Oh yes indeed, sir, we are.

We are entitled to look at the record as to the knowledge that he had.

There, in this case, we have of course no opening statement except what I read to Your Honor.

I read you verbatim the totality of any opening statement.

And there I submit that this is an element of the offense if the witnesses to be available to him only -- the pertinency objection only if he makes the objection in proper terms, we must told the Government to what was said here and there, they said they want to ask him about his activity.

They did and he answered about his activity.

But there was no opening statement in the sense that there was in the Watkins or the Barenblatt case, no general statement or purpose.

Justice John M. Harlan: Well, you have an opening statement a few days before the opening.

Mr. Henry W. Sawyer Iii: Yes, sir but the witness didn't know anything about.

And we'll take --

Justice John M. Harlan: Did he -- did he ask for any further information when he got -- when he was examined?

Mr. Henry W. Sawyer Iii: No, sir.

I'm going to come to the point as to whether he raised that.

That is a separate point.

Did he raise it?

But -- but he didn't have it.

And he -- he knew nothing about any statement.

I told the Court exactly what happened.

He walks on the room and he sworn the question he commences.

Justice Charles E. Whittaker: Did he place his (Inaudible) specific ground --

Mr. Henry W. Sawyer Iii: No, sir.

Justice Charles E. Whittaker: -- that there wasn't going to dispose a name, it didn't bother at all?

Mr. Henry W. Sawyer Iii: Oh he said -- he said I have moral scruples against it.

And he -- he'd -- of course he'd said that he raised the question of constitutionality and the jurisdiction.

But he said his motive in refusing to answer about other people was that he had moral scruples about the -- informing on others.

He said that repeatedly.

Now, he didn't say that -- he didn't make the specific pertinency objection if that's what Your Honor's -- Justice Whittaker's question is.

Justice Charles E. Whittaker: I was really going to go back and my question is that, whether or not isolated, they were leaving for refusal to answer to the specific thing that he was not willing to reveal the names of his friends.

Mr. Henry W. Sawyer Iii: Yes, sir.

He did.

I think it's fair to say he did.

He said, I -- I cannot bring myself to inform on other people.

Justice Charles E. Whittaker: So that might -- get back to be argued was his (Inaudible), not that he didn't understand pertinency of the law --

Mr. Henry W. Sawyer Iii: Oh yes.

Justice Charles E. Whittaker: -- he just (Inaudible) going to answer to that reason.

Mr. Henry W. Sawyer Iii: That's right sir.

We -- we say, however, that the motive of the witness -- the motive of the witness isn't controlling, unless -- let me put it this way.

Unless this Court is to hold back without a specific objection on pertinency specifically that -- that it's never necessary to have the subject matter appear with indisputable clarity.

If you're to hold that, we have no argument on this point.But of course Watkins didn't make any such specific objection.

It's been treated as if it's been specific.

But I have it set out in full what Mr. Watkins said on page 24 of my brief.

And he says very much that he says, I -- I don't think I have to inform on others.

And then he does go on after it's quite a long thing here.

That he says, I don't believe such questions are relevant to the work of this Committee and you -- relevant is almost equivalent or pertinent," but he didn't make a formal objection and certainly Deutch did not either.

But when -- but we -- we do -- and of course he had -- let me just finish this part about -- about what he had without the objection.

He had no opening statement because what they said in Chicago six months before, he -- he's not aware of or Albany.

No other witnesses were heard.

And unlike the -- particularly the Wilkinson and Braden situation, this subcommittee floats ad hoc in absolute thin air.

Now, I don't mean in the sense that they hadn't been authorized to take testimony.

We stipulated that.

But authorized to take testimony about what?

There is no resolution passing from the parent Committee to this subcommittee, not a vestige in the record, not a word as to what this subcommittee, and remember the record shows that they never heard any witness on the other subject at any time, at any place, except Mr. Deutch what they were to do.

Now, sir, as to did the witness raise this point, we say if he has to say pertinency, he didn't.

We think that in the colloquy, immediately concerning whether he should, so to speak, telling other people, in lay language in -- I set that forth Your Honor in this page and half, in lay language he in effect did raise this point.

That's on page 26 and all the way and down through 27.

Now, it's -- it's raised with -- somewhat awkwardly perhaps.

And the Government keeps saying, Well, he had confident counsel by his side.

It's very flattering to me but I didn't know anymore about the pertinency point in April of 1954 than the people who wrote the Watkins brief before this Court who didn't mention it three years later.

But I do think it's important to note that the counsel, you know, can't make any objection.

He cannot be heard himself, he -- before this Committee.

He may not even add -- volunteer to advise his client on his own initiative.

He must wait till the client leads towards him and that the counsel before you and many others had been threatened with the objection for even presuming to volunteer advice when it was not solicited.

It's a matter of which way the head moves and that was count -- was commented upon by Dean Griswold, Your Honor in his book on the Fifth Amendment.

Justice Felix Frankfurter: Mr. Sawyer, would you help me.

I'm little bit -- not clear.

I understood you to say or I may have misunderstood you.

I understood you to say that the objections here were the specific questions.

Mr. Henry W. Sawyer Iii: No, sir.

There -- these objections 26 and 27 that Mr. Deutch made.

Excuse me sir.

Justice Felix Frankfurter: I thought that he had a pertinency.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: It's the specific -- a pertinency of specific questions.

Mr. Henry W. Sawyer Iii: No, sir.

I think it's the pertinency, you see Mr. --

Justice Felix Frankfurter: Well -- well let me ask you another question.

Mr. Henry W. Sawyer Iii: Alright.

Justice Felix Frankfurter: Was there any objection to the -- to the authority of the Committee?

Mr. Henry W. Sawyer Iii: Oh, yes.

That was objected sir, generally.

Yes, sir.

Justice Felix Frankfurter: Generally.

Mr. Henry W. Sawyer Iii: In the very outset.

After that first question, he said that he objected and took issue with the jurisdiction of the Committee, he mentioned 601.

Well, the reason he knew about that was -- of course, it was on the bottom of the subpoena, Public Law 601 as the enabling legislation.

And then he said, "Under protest as to its constitutionality, I will answer, yes I was a member.

I am no longer a member.

But then he comes along to this question of other people you see.

At 26 he says, "I am perfectly willing to tell about my own activities but do you feel I should trade my moral scruples by informing on someone else?"

And he -- he puts at -- I think a fair reading of this is that, that this is -- this is now minor.

This -- this was defunct.

Isn't that in as a lay sense saying, "How does this relate to -- to information which the nation must have the exigencies of National Security require?"

Justice Felix Frankfurter: I did not understand you to say that he didn't -- in answer to Justice Harlan, that he didn't know what the general scope of inquiry was?

Mr. Henry W. Sawyer Iii: Yes, sir.

He didn't accept as he derived from the questions.

Justice Felix Frankfurter: Well, I mean didn't he -- didn't he say -- did he raise that objection?

Mr. Henry W. Sawyer Iii: No sir.

He did not.

Justice Felix Frankfurter: Well then he didn't -- he did not raise objection to the -- to the course of questions --

Mr. Henry W. Sawyer Iii: No, sir.

Justice Felix Frankfurter: -- which were -- to which he was being submitted, is that right?

Mr. Henry W. Sawyer Iii: Not on pertinency ground as such.

No, sir.

Justice Felix Frankfurter: Alright.

So then you -- then you -- that's why I'm confuse.

Mr. Henry W. Sawyer Iii: Yes, sir.

No, I -- I'm quite --

Justice Felix Frankfurter: I understood you to say --

Mr. Henry W. Sawyer Iii: -- quite clear he did not raise.

Justice Felix Frankfurter: Yes.

Well, that's why I'm confused now because I thought you did, but because -- didn't I have understood you to say he objected to the pertinency of certain questions, of a course of questions?

Mr. Henry W. Sawyer Iii: No, sir.

Not quite.

I think that the statement on 26 and 27 is that kind of request for information and the discretion of doubt as to pertinency in lay language which should have prompted the Committee to make some explanation and that the Committee said in response to that that decision, I -- whether he should answer about it or did not rest with you.

Justice Felix Frankfurter: I'm -- I'm sorry, I'm not clear even now.

I guess they don't fit my questions.

If he didn't object, if he didn't say, I don't know what your questions -- what you're -- what you're asking questions about.

He didn't do that, did he?

Mr. Henry W. Sawyer Iii: No, sir, he did not.

Justice Felix Frankfurter: But he said I object to these questions.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: Well, now, how can there be an objection to relevance of these questions to a subject matter when he didn't object to the whole subject matter?

If you didn't object to the area into which they were entering, how could anybody say a question is in -- is not pertinent to that area?

Mr. Henry W. Sawyer Iii: Well, I -- I --

Justice Felix Frankfurter: That's my trouble.

Mr. Henry W. Sawyer Iii: I see Your Honor.

I'm placing my emphasis on the phrase of the Chief Justice in the Watkins case when he says after discussing the pertinency thing.

He says, This is a jurisdictional concept of pertinency."

And -- and I think that it's more than pertinency in the mere sense of relevancy.

It relates back through the chain of pertinency to the subject and then pertinency of the subject to a valid legislative purpose.

However, I would like to get on to --

Justice Felix Frankfurter: But you're not --

Mr. Henry W. Sawyer Iii: -- points that I think are stronger.

Justice Felix Frankfurter: -- you're not objecting to a valid legislative purpose.

Mr. Henry W. Sawyer Iii: Yes, sir.

Later on we are in point three.

As to the names of others, we say could never be under these circumstances, Congress -- the information was Congress needs to legislate.

But then, Your Honors at trial, the Government was obviously apprehensive of whether or not a student group at Cornell, these people that discussed Marxism and gave out leaflets, wouldn't be specially protected by the First Amendment, and if that was said to be the subject matter.

So what they did was to prove from the beginning of the trial to the end that the subject matter wasn't the students at Cornell at all.

That it was investigation of labor in the Albany area.

The Government's opening --

Justice William O. Douglas: I notice on the record at page 119 excerpts of a subcommittee hearing in Albany.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice William O. Douglas: Was -- was that a part of the record of the hearing at which the petitioner was a part?

This is called -- this is held in Albany.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice William O. Douglas: Were -- were they --

Mr. Henry W. Sawyer Iii: No, sir.

Justice William O. Douglas: They were not in --

Mr. Henry W. Sawyer Iii: I must explain this, Your Honor.

Most awkward thing if Your Honors will look, I believe, in the front page, at least the clerk said there would be a (Inaudible) and by mistake several hundred pages of this document were printed in error, that's not evidence at all.

Beyond he thinks -- what happened was that the Government counsel at trial handed out a pamphlet which contained the two pages he won't introduce and a lot of other material.

And the clerk -- the stenographer in the District Court wrote on it in Government Exhibit Number 1 instead of saying Government Exhibit Number 1 pages 3, 4 and 5 only.

So when the clerk of this Court got it, the whole pamphlet was printed.

And that, of course, is 119 is in evidence at all.

That shouldn't be printed.

It was an error only as printing Your Honor.

The Government started out and talked about Albany and they said the investigation was about the labor leaf of youth legal and break many matters like that.

None of which were touched on in -- in the hearing.

They put in Government --

Justice William O. Douglas: Now, when you say --

Mr. Henry W. Sawyer Iii: -- number 1.

Justice William O. Douglas: -- when you say hearing, you mean hearing before the Committee.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice William O. Douglas: Not -- not the -- not the trial.

Mr. Henry W. Sawyer Iii: No, no.

The hearing, when I use the word hearing, I mean hearing as distinguished from trial.

They put in Government's Exhibit Number 1 which is the --

Justice William O. Douglas: What course is that?

Mr. Henry W. Sawyer Iii: That -- that is Record 38 and 40.

Justice William O. Douglas: Yes, it was --

Mr. Henry W. Sawyer Iii: And that was objected to and it was admitted to show this subject matter and only for that purpose.

And it may show the subject matter.

If it does, it shows that the subject matter was Albany and infiltration in the Albany area.

Justice William O. Douglas: Well, this -- this was -- was this at the hearing or this at the trial?

Mr. Henry W. Sawyer Iii: Introduce at the trial Your Honor.

The hearing just consisted of these questions that I reviewed about the Communist at Cornell and nothing about Albany or labor or anything like that.

Now, a trial --

Justice William O. Douglas: Do -- do I have to -- do I have to follow who was Mr. Tavenner to pick out what was said at the hearing or is there some group of pages here in the record that give me --

Mr. Henry W. Sawyer Iii: Deutch's testimony.

Yes, yes indeed, Your Honor.

Deutch's testimony is the Government's Exhibit Number 5 and it's 291 of the record.

Justice William O. Douglas: 291?

Mr. Henry W. Sawyer Iii: Yes, sir and that gives you his entire testimony.

Justice William O. Douglas: Thank you very much.

Mr. Henry W. Sawyer Iii: Now, the Government put in --

Justice William J. Brennan: Well, excuse me.

I -- I know your time is short but beginning at 291, does that give us everything that took place at the hearing?

Mr. Henry W. Sawyer Iii: Everything.

Yes, sir.

Justice Hugo L. Black: 291 to what?

To the end?

Mr. Henry W. Sawyer Iii: 291 Your Honor to page 304.

Justice Hugo L. Black: 304?

Justice William J. Brennan: And that's the transcript everything that occurred that day that it would appear before those three, is that it?

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice William O. Douglas: That is the both side --

Mr. Henry W. Sawyer Iii: 300 at the top of 305, excuse me.

Top of 305.

That's the whole thing.

That's all about it.

Justice William O. Douglas: Both -- both sides agreed that the issues of pertinency -- pertinency must be determined on the basis of these exhibits?

Mr. Henry W. Sawyer Iii: Oh, yes, sir.

But the point I'm on now is the discrepancy is a due process question as to trial because the Government -- trial put in this Exhibit Number 1 that Deutch had never seen it and it says that the subject, there's labor activities in the Albany area.

Exhibit Number 2 is the Chicago hearing, the one which was used in the Watkins case to prove that the investigation was in the labor.Government Exhibit Number 3 says that it's an investigation of labor.

And these Your Honors, if Your Honors please, were all different subcommittees in the ones that heard Deutch but they're same Subcommittees.

Justice William O. Douglas: They were introduced at the trial.

Mr. Henry W. Sawyer Iii: Over objection and trial.

For what purpose?

To show what the subject matter was.

Because at first, the Government has to prove a subject first before they can show anything is pertinent to it.

And -- then the next point was the testimony of a man named Marqusee about how he got recruited into the UE He being a student at Cornell and -- and the only trouble that is that they never asked Mr. Deutch about Marqusee, and Marqusee never -- when he testified, never mentioned Mr. Deutch so there's no connection there.

Then Mr. Tavenner takes the stand.

That's the -- they're the only three exhibits that tend to approach subject and they're introduced for that purpose.

Mr. Tavernner Committee counsel takes a stand and the Government says to him, Well, "how is it?

If the subject matter is Albany, how is it that when this Committee print came out -- the little print of the Committee prints at the House Committee of -- of Mr. Deutch's testimony.

It says at the top education part A.

We said, "Oh well, the clerk put that on as a matter of convenience."

Well, I said, Was there a connection between Albany and Mr. Deutch's hearing?"

And Mr. Tavenner said, Yes, there was, but he didn't say ever what it was.

He talked again about infiltration of this -- connected he planned about Birmingham -- Binghamton, about the -- the practice as he said that concern the Committee and this was the closest he came.

He said there was a practice we found or we thought there might be where certain students in the Industrial Relation School at Cornell took summer jobs and in that way, they get into the UE.

And the Committee wanted to find out about that.

Well, if they did, they didn't ever ask Deutch about it.

There's not a word in his hearing and Justice Douglas at -- I mean again the hearing before the Committee not a word do they advert to Marqusee or the Industrial Relations School or labor unions or labor and anything else.

It's only that material about the students.

And the Government maintained this position throughout until Barenblatt came down.

When this Court found that the academic community was not a privilege sanctuary had no particular higher First Amendment status or anything else, the Government (Inaudible) and they said, "Well, it's obvious the subject matters in the Cornell that you can see that by simply reading the hearing."

Now, I think maybe the subject matter was Cornell.

I think the witness would lean that as the hearing went on.

I think we require more than that but my point now is that Section -- Title 2192 does not punish or contempt -- refuse to answer.

It punishes only a refusal to answer a question pertinent to the subject under inquiry.

There must, therefore, be proved that trial a subject.

It's an essential element of the crime and we have a right to have the subject proved which is one, which corresponds to the facts of the hearing and at trial because we have to decide whether they're cross-examined.

I didn't cross-examine Mr. Tavenner because he'd been busy proving that the subject was labor infiltration in the Albany area and I knew that -- that you could look at the hearing to your heart's content, you never see a single question about that.

And the defendant might have taken the stand or the argument might have been made.

In fact, in -- in my closing I renounce the right.

I said, If the Government had tried to prove or had offered proof that the subject was Cornell then I would have made the kind of argument appropriate to that proof.

Justice William J. Brennan: Is that in the record?

Mr. Henry W. Sawyer Iii: Yes, sir.

But if they did not make that argument and they made an entirely different subject, not this subject up in Albany, and I might say parenthetically, the Government still entertains the -- being hoped that it will be found that if it is in the Albany area, but if it is Washington is in the Philadelphia area because it's further away between the two points and I think that's quite clear.

I mean there's a separate area of -- of labor interest up there (Inaudible) and being disconnectedly.

Justice Felix Frankfurter: Mr. Sawyer.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: Would you be good enough to --

Mr. Henry W. Sawyer Iii: Excuse me.

Justice Felix Frankfurter: -- refer me to the record where when Mr. Deutch was called, he said, from my point of view, he's allowed to say, I'm not going to answer any of your questions because I don't know what they're serious about " or what (Voice Overlap) --

Mr. Henry W. Sawyer Iii: We didn't say that, Your Honor.

We didn't say that.

We don't contend that, sir.

Justice Felix Frankfurter: But then you don't contend that when he began to be asking -- to be asked questions, and when he began to answer, he did not object that there was no subject matter to which he was addressing himself.

Mr. Henry W. Sawyer Iii: No, sir we do not --

Justice Felix Frankfurter: Is that correct?

Mr. Henry W. Sawyer Iii: That's correct.

Now, Your Honor our conclusion on that point is that due process requires that the defendant have a chance to meet the proof of every essential element at the trial not on appeal.

We've cited the cases which we think they're in analogous where particularly the case, the murder case in which evidence was admitted, and then it said, Well, it could have been admitted for a different purpose on appeal.

But we had a right to be contrived with the subject matter of the hearing and not have some other subject matter contrive to which it was never mentioned at the hearing at all.

Justice Felix Frankfurter: Well, how was there any contradiction when you didn't object to any subject matter?

Mr. Henry W. Sawyer Iii: Well, Your Honor, the subject matter has to be proved at trial as an essential element of the offense because the statute --

Justice Felix Frankfurter: I don't understand that.

I don't understand.

I'd supposed that the offenses are not answering questions which a Committee of Congress asked the defendant.

Mr. Henry W. Sawyer Iii: I beg it differently, Your Honor.

Sir, I do not think that's the offense.

Justice Felix Frankfurter: Well -- we -- what is --

Mr. Henry W. Sawyer Iii: The offense I think is confusing answer.

Justice Felix Frankfurter: Because the offense is the old -- what I used to know in my (Inaudible) 102 --

Mr. Henry W. Sawyer Iii: Yes, sir.

It's still 102 sir, 192, but it doesn't say that sir.

Justice Felix Frankfurter: Well, what was it said?

Mr. Henry W. Sawyer Iii: With all due respect it says, To refuse to answer questions pertinent to this subject under inquiry.

Justice Felix Frankfurter: Well, I -- well I quite agree with that.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: But if a fellow doesn't object to it's having been pertinent to the subject matter, there must be a subject where people ask questions.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: Whether they're in sequence or whether they're for hearing.

There is a subject matter to which a question addresses itself.

Mr. Henry W. Sawyer Iii: Yes, sir.

And the Government has to prove it at trial.

And they have to prove at trial whether they're objected to it or not because it's an element of the crime.

If a statute says burglary, it's the breaking and entering of a house in the night time and the witness doesn't have to say, Well, I object they go about night time.

The Government has to prove that it was night time.

And --

Justice Felix Frankfurter: But you think the Government (Voice Overlap) --

Mr. Henry W. Sawyer Iii: Say and so in trial --

Justice Felix Frankfurter: I have great -- I have (Inaudible) by analogies.

What the Government has to prove is that there was a subject matter under required.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: And it did prove that.

Mr. Henry W. Sawyer Iii: Yes, sir. (Voice Overlap) --

Justice Felix Frankfurter: It didn't object to it.

Mr. Henry W. Sawyer Iii: No, sir.

And it proved to trial that the subject matter on their decree was the investigation of labor activities in the Albany area.

Justice Felix Frankfurter: I wouldn't care what it was.

If you didn't object to it, you didn't say you're asking about a subject matter to which you have not intended to ask me or as to which you are not authorize to ask questions, how can you say what the -- the questions that were asked if you were not relevant to a subject matter.

I don't understand it.

Mr. Henry W. Sawyer Iii: Your Honor, this part of the case is -- is totally aside from the Watkins point of objecting the pertinency.

Justice Felix Frankfurter: Well, about Watkins.

All I know is you're now saying, there is no proof the question will ask with reference to a subject matter and you tell me now that they say the subject matter was Albany and it should have been ethical.

Mr. Henry W. Sawyer Iii: It should have been (Voice Overlap) out.

Justice Felix Frankfurter: What difference does that make?

Mr. Henry W. Sawyer Iii: Because the Government has to prove it whether we object to it or not.

Justice Felix Frankfurter: But it proves --

Mr. Henry W. Sawyer Iii: So I didn't say to you Your Honor.

Justice Felix Frankfurter: But it proves that there was a subject matter of inquiry.

Mr. Henry W. Sawyer Iii: Well of course, there was some subject but what's the situation when the Government proves a subject at trial as an element of a case which is in fact contradiction to the actual subject matter of the hearing.

Justice Felix Frankfurter: How do you know it was in actual subject matter when you didn't object to it, nobody raised the question.

Mr. Henry W. Sawyer Iii: Well Your Honor, there would be a subject matter whether objections were made or not, I think.

Justice Felix Frankfurter: That's my point.

I agree with you.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: But I draw different conclusions from that sense.

Mr. Henry W. Sawyer Iii: I think we are in extricable in conflict on this point Your Honor.

Justice Felix Frankfurter: I start with for your -- your last statement.

Mr. Henry W. Sawyer Iii: My third point, if I may, the one is that in this context of hearing where the witness has disclosed to the Committee so much and all in fact of a general nature or a specific nature, all except names along.

Under the ruling of this Court in Watkins reinforced in Barenblatt where it's been held in traditional view that these Committees are restricted to acquiring that certain data which Congress needs in order to legislate that the names per se of witnesses could not be pursuant to a valid legislative purpose.

Now, we don't say that this could never be true in a congressional investigation.

It might be, for instance, particularly in investigation of Government itself but where the investigation is -- has into -- in a field like this and where the witness has disclosed these broad aspects could names themselves be legislative data.

The legislative function as Court has said is certainly not exposure so they could not have wanted them for that reason.

They're not -- the legislative branch is not on the business of compiling dossiers of people or finding who's been guilty of wrong doing or wrong thinking.

This is reserve to other branches of the Government.

They could hardly legislate in the sense with respect to particular persons and without running a file of the bill of attainder provisions.

And we think therefore under the document of separation of powers, it would be hard to see how the names alone would be necessary to the Congress in order to intelligently cope with the problem of -- of communism, the problem that they have before them.

They must know, of course, the general size, quality, shape, scope, the actions of the -- of the -- if you will, the Communist even at Cornell and all of this they got and could have gotten as much as they wanted to presumably, the witness didn't cut off the inquiry, it -- as it happened in other cases, it was only the names.

And we therefore, our third point is that the requirements of this Court with respect to saying that Committees are restricted to that data which Congress the parent body needs to cope with an existing legislative problem at a law enforcement problem but a legislative problem would not justify the seeking of names by compulsory process.

Now, my last point Your Honor which is the First Amendment point, in which we take not the absolute but the relative position announced most especially by this Court in the Barenblatt case.

We say that to sustain this conviction in this case in the light of that balancing test is to go further than any case has and I suggest to the Court so far that it would be hard to conceive of a case in which the First Amendment rights might up way the investigative power.

Now, this Court has recognized the very real deterrent to political association with under orthodox groups involved in the prospect that those associating with such a group may later be called before congressional committee and have to own up to it.

This is the reason the First Amendment gets in to these cases.

Now, parenthetically, the Government has said, "Well, Deutch didn't plead the First Amendment."

Well, I -- I submit that it is quite noble.

The First Amendment is not like the privilege against self-incrimination.

I don't know what they mean by pleading the First Amendment.

It is efficient on Government if it has been transgressed by Government, no process can follow from it.

And I apprehend when hundreds of First Amendment cases nobody ever plot it when Jehovah Witness, for instance, was arrested for having no license to sell handbills from door-to-door.

I don't suppose it was inquired as to whether or not he said to the county clerk in the courthouse when he didn't get his license that he was pleading the First Amendment.

I don't think it has to be pled as novel in the law.

But they then say, "But this man is actually trying to invoke the First Amendment rights of other people."

Well, let it be clear that we are here invoking the First Amendment rights of this particular defendant and not others and we do it in the same way as the deterrent effect has been spoken up.

And we say that if it's a deterrent to association with heretical movements or an orthodox movement that you may have to admit your own membership how much greater deterrent it is for a man of decency to know that he may also have to tell about the association with that movement of others and thus bring upon them the same dilemma which he then finds himself in.

Because many men, who I say, with impurity would dare to join such movements knowing that he might have to someday answer to it, would hesitate to do so if he also has to answer as to others.

And therefore, I submit that it isn't the First Amendment rights of others.

It's the First Amendment rights of this witness.

Now, as to his First Amendment rights, this Court has said that in many instances, they -- the recognize that in many instances but not at all, some circumstances they have said the First Amendment, this is Barenblatt, protects an individual from being compelled to disclose association or relationship.

And then the Court said however, this is Barenblatt he quotes, Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involved a balancing by the Court of the competing private and public interest at stake in a particular circumstances shown."

I say that nobody -- no previous court has ever done that balancing test.

They simply say, "Well, these questions are about communism or this man was a Communist at one time."

And that's really essential to Government's position today.

How do they meet the balancing test?

They meet the balancing test by saying, Well, we're an area of Communist investigation.

Now, it's true.

This Court has, since CIO against Douds, permitted governmental action with respect to Communist and the Communist Party which would not be permitted except for special and unique attributes of that party to wit through.

One that although it was a political party in some respects, it shades off into a conspiracy.

Secondly that among tenants which are merely collectible, unpopular or an orthodox, there is the tenant of force and violence of the Government -- overthrow the Government.

And this Court from CIO against Douds, the parent -- the Braden last week has said repeatedly that it this particular horror which has justified in this case interrogation but there are other things which would not be permitted where it not for the need for Congress be informed about this particular doctrine because of the importance of national security and self-preservation.

Now, in many other cases, intermediate steps such as, Were you a Communist?

The witness himself refuses to answer or other such questions have been justified as being witness having to compel to answer because this Court has said, Well, these are preliminary to get on to this question and to find out about force and violence.

What happens where the witness takes them -- takes the Committee right in to the -- to the midst of the -- of the secret labyrinth and he talks about force and violence.

He's disclosed all he knows about force and violence.

And if Your Honors will bear in mind, he was under oath, he was subject of course to the pains and penalties of perjury and surely this Committee had no affection for him, a reason to protect him and -- at trial.

The Government, if these were not true had available to them.

His boss in the party, an FBI employee, Mr. Ross Ferguson who could have come in if this isn't true.

And I submit that it must be accepted on this record that this witness has said all he knows about force and violence which is this group of student that he was involved with didn't believe in it and as he said nobody ever advocated in my presence and if they had, I would not have permitted it.

And he then tells the Committee upon questioning, of course, he doesn't know what the motives of the top leaders of the party is.

Well, he's a witness.

That's all.

And if doesn't know, he's exhausted.

Now, I say therefore to the Court that it would have the tail wagging the dog if you could have the witness who comes all the way to the question of force and violence and deals with it and this is unique in this case, Your Honor.

This has never construe of any of this contempt of Congress cases that have reached this Court, and I -- I don't know of no others whether even those aren't here yet.

That whether the witness talks about force and violence and that that is the information which the committees must need to know about which justifies what would otherwise be infringement of political association rights, then I submit that that justification ceases to exist.

Aside from that, however, aside from this unique feature of the case, just in the general balancing as the Court said should be done in Barenblatt, the weighing between the need for Congress to know and to get data necessary to legislate and the admitted infringement of First Amendment rights inherent in the process of compulsory testimony, where could we -- and this Court has said that if the balance still to a certain way, it will tilt in favor of the First Amendment.

They -- the six scales are supposedly are indeed running -- running free.

There may be -- must be some cases where the First Amendment will prevail over the investigative power, how can we get one that in which the need for the Government to know the connection with national security, the importance of the information that conceivably could be here, could possibly be less in proportion to the First Amendment rights.

And both sides of the scale I say this case weighs higher.

First, we must have the preservation and I'm not saying again that there is a privilege sanctuary but if First Amendment rights stand high, they certainly must stand high with the student on a college campus more than even the professor because he is a student on a college campus.

If they -- if he doesn't have them the rights to be wrong if you will, the rights to make it jack ass out of himself in terms of joining this kind of a party at age of 19 and getting out at 22 or 23.

If he doesn't have them in this context and I suggest we won't find anyone whose rights in terms of communism will rise very much higher than this from the standpoint of the First Amendment and I suggest that on the other side of the scale, how can the Government of the United States and the Congress and all His Majesty be impeded by not knowing the name of the student who asked towards the age or 18 or 19 to join the Communist Party or the man that gave the $100.00.

Justice Felix Frankfurter: If -- if you can conceive that this is possible that the question should become relevant in the court proceeding --

Mr. Henry W. Sawyer Iii: Oh yes Your Honor.

Justice Felix Frankfurter: -- would then the claims to make a jack ass of himself bind from being a witness?

Mr. Henry W. Sawyer Iii: No, sir.

Justice Felix Frankfurter: Well, what's the difference?

Mr. Henry W. Sawyer Iii: Well, Your Honor, the Court procedure and there are many contexts, citizens duty to give evidence.

He is called under all sorts of rules, we know the relevancy.

He has the protection of that.

But here, Your Honor, the investigative power of Congress is derivative only in the first place.

It only is the aide of legislation.

It isn't part of the judicial process.

Justice Felix Frankfurter: I'm getting to one side your other points.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: I'm addressing myself to the First Amendment claim and to the extent if Congress can ask relevant questions.

It has the same power to compel this testimony from witnesses that the Court has.

Once you -- I'm -- I'm putting to one --

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: -- side your relevance of the argument which I appreciate whatever value you think of it.

So I --

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: And I (Inaudible)

Mr. Henry W. Sawyer Iii: No, I understand Your Honor.

Justice Felix Frankfurter: But - but if it comes to the First Amendment, what difference is there would that be the power of Congress to compel -- to exercise the power of testimonial compulsory relevant to an inquiry.

You put it on the ground that the kid has the right to make a jack ass out of himself.

Now, why can't he had the same right, the same claim when he's called in court assuming it's relevant and say, "Gee, here, my success in Cornell, with Harvard and its (Inaudible) will be timid, therefore I'll keep my mouth shut."

Mr. Henry W. Sawyer Iii: So I think I can answer that sir I believe I can.

It's because I apprehend that it is not the law and unlike the situation here is recently announced by this Court that there's any balancing tests to the witness from the witness stand.

You see this --

Justice Felix Frankfurter: This Court has never said that -- this Court has never said, you correct me if I'm wrong.

This Court has never said, I can't imagine if it would say that provided is that all the other consideration, the duty to testify is less before a Committee of Congress and before the Court.

Mr. Henry W. Sawyer Iii: Your Honor, I'm relying on the balancing test as enumerated by this Court the majority therefore in the Barenblatt case in which this Court say that there are circumstances in which the First Amendment protects an individual before congressional committee from being compelled to disclose to the association or relationships.

The Court then went on and said where First Amendment rights are asserted before governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interest at stake and the particular circumstance is shown.

Justice Felix Frankfurter: But you know the conscience, Mr. Sawyer.

That -- that case is talking about congressional investigation.

Mr. Henry W. Sawyer Iii: Yes, sir.

And that's what --

Justice Felix Frankfurter: None concept to First Amendment as the First Amendment not apply to the court of law.

Mr. Henry W. Sawyer Iii: Of course it applies, Your Honor.

Justice Felix Frankfurter: Well, then the same consideration maybe raised by witness.

He may say.

This is so remote, the good it will do in this litigation but I don't want to make a jack ass of myself and I'm great believer and the young making jack ass of themselves.

Mr. Henry W. Sawyer Iii: Well, Your Honor if -- if he raises in the court of law, he gets a ruling by a judge that it's either relevant or it isn't irrelevant.

Justice Felix Frankfurter: Well, he got a ruling here from the tribunal which is power, forgetting your other point, which is power to elicit information to compulsory process otherwise congressional investigation that would be worth it, everybody could come as noted Congress.

The power of testimonial compulsion relevant to an inquiry if it is justifiable under the potentialities of legislation?

Mr. Henry W. Sawyer Iii: Yes sir, he got a ruling and we're here asking this Court to overturn it.

Justice Felix Frankfurter: You overruled it.

What I am saying, why couldn't you get as the same ruling if a court makes such a ruling?

Mr. Henry W. Sawyer Iii: I think there are circumstances in which it's conceivable.

Justice Felix Frankfurter: Alright.

Mr. Henry W. Sawyer Iii: I -- I should think it would be most and much less likely the Court with relevancy rules and with the -- with the witness being called to testify to something that's specific but I supposed we could think of a hypothetical case in which it might be that the witness in court would refuse.

Justice Felix Frankfurter: That would say that really I don't -- I don't want to preach on myself.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Felix Frankfurter: I sympathizes that, then our question, is it?

Mr. Henry W. Sawyer Iii: No, sir.

It is not the question.

When I said that that making a jack ass of out of himself, I'm just -- I use that expression in the sense that if the First Amendment rights a behest First Amendment rights, I'm suggesting that as a student in the university, in terms particularly a political things that he certainly has that element of First Amendment rights which this Court has shown in the past a certain solicit to -- to protect the right of inquiry.

Your Honors opinion on the Swizzie case, I think dwell upon that at concurring opinion at some length, the -- the importance of the academic community and the terms of the First Amendment unless I misread the opinion.

Justice Felix Frankfurter: You have a -- you have a right to -- to try to reach a very strongly conviction I have on that subject.

But on the other hand, I'm confronted with the power of Congress which may be abused, this Court abuse their power which is -- what is called an abuse that Court abused their power to severe sentencing, well I think they ought to give them, etcetera, etcetera.

We're concerned with the power of Congress to elicit answers to compulsory because that's the only way to do properly at all.

There's lots of stuff going on in Congress and I think truly are and you may think truly are.

But I cannot see the difference so far as the First Amendment is concern if we have to put to one side the relevance of the inquiry between the Congress and the Court.

Mr. Henry W. Sawyer Iii: Alright, sir.

I'll -- I'll accept to argue and that there's no difference.

But I still -- there being no difference, I still maintain Your Honor that when they ask questions here and had gotten all of the information that they did get but then to say that the names are necessary in the first place, is not pursuant to valid legislative purpose and I secondly say Your Honor, that I am throwing away the absolute position that they don't have any right to asked these questions in this field at all because this Court has informed me so to speak by a series of five or five decisions that that is not the law.

But they have said that the law is that the courts will and they said must balance the First Amendment rights in the degree of infringement thereof in each of these instances.

It's what said in the Barenblatt case, in each case against the need of the Congress and the public need to know.

And I submit to Your Honors that if there's ever going to be a case in which the First Amendment rights of the witness be the same or different or lower or higher than he might have in the court or to prevail over the investigative power, I think this if is certainly the strongest one that is yet reach this Court and I submit that it is a strong and one perhaps is -- is likely to transpire.

Justice Felix Frankfurter: But what you are -- what you are arguing for is really the right of the witness -- the right of the witness to determine, when he's getting enough evidence that ought to satisfy the jury by the -- the Committee.

What this witness said is I'll tell you what I've given you or to satisfy, and your further inquiries are really so putative or so inclusive compared with the value that can make it out of it.

I determine this not you who have the power to compel me to testify.

Mr. Henry W. Sawyer Iii: No sir, not quite.

In this sense, this Court has said what it is that the Committee's need to know which justifies what would otherwise be an infringement of the First Amendment namely this the -- this -- our key and aspect of the conspiracy, the doctrine of force and violence.

And this Court has said that.

This Court from -- from the CIO against Douds case on has repeatedly said it is only because this isn't just a political party, this Court is not lying.

This Court knows that it's more than a political party.

Justice Felix Frankfurter: But if he makes the denial.

The Committee must stress with that denial.

Mr. Henry W. Sawyer Iii: Well, Your Honor, they could have all kinds of opportunities to -- the record stands -- they could have brought Ross Richardson at the trial if that isn't true.

They -- they had --

Justice Felix Frankfurter: Don't you often make choices into which way to elicit questions and to some of witness at the bar?

Mr. Henry W. Sawyer Iii: Well, if Your Honor means that we do not accept this true, Mr. Deutch's statement that now the people he knew, believed in force and violence.

Justice Felix Frankfurter: He may not know all he thinks he knows.

That happens to me constantly that I thought I knew more until people expose my ignorance.

Mr. Henry W. Sawyer Iii: Accepted Your Honor as even that he doesn't know all he knows.

But contempt of Congress is in essence to withholding of information and he couldn't give them information he didn't know about whether he's wrong or right, he is exhausted his knowledge on the subject.

Justice Felix Frankfurter: No he hasn't because he has withheld information about people who may shed additional light on the subject.

Mr. Henry W. Sawyer Iii: Yes, sir.

That -- that indeed he has but if again, there are cases and I submit that there are Barenblatt is one of them, there are number of the cases, Your Honor in which the questions as to identities, in this case of the witness whether he was a Communist having justified because, as I believe, he just steps in order to get to this question of force and violence.

This witness went all the way to force and violence.

And looking for the steps on the way is I think to have the tail wagging the dog, sir.

Chief Justice Earl Warren: Mr. Maroney.

Argument of Kevin T. Maroney

Mr. Kevin T. Maroney: Mr. Chief Justice and may it please the Court.

I think in the few minutes remaining this afternoon, I might try it very briefly run over some of the circumstances which let up to the petitioner's being subpoenaed before the Committee and his appearance before the Committee.

Now, in July of 1953, the Committee -- House Committee Un-American Activities began a general investigation of Communist Party activities in the Albany area.

Mr. Tavenner, the Committee Council testified at the trial that this was part of a general investigation of Communist activities in key areas throughout the United States.

The Committee suspended him after a few days taking testimony.

Justice William O. Douglas: But they -- those were not introduced or referred to in these hearings, were they?

Mr. Kevin T. Maroney: The opening statement is a part of the record.

The opening statement at the July 1953 hearings is part of the record at pages -- beginning at page 38 and going over to page 40.

Justice William J. Brennan: Yes, but that was not introduced.Let's say that this man testified though.

Mr. Kevin T. Maroney: Now this was introduced at the trial Your Honor to show the background.

Justice William J. Brennan: At the trial on the --

Mr. Kevin T. Maroney: Well, let -- that's right at the trial.

Justice William O. Douglas: Counsel, maybe you don't have very much time but maybe if I ask you a question you can perhaps tomorrow, those are laid upon one of my difficulties.

Suppose -- suppose that I am summoned by Committee and ask one question, what is your name and I refuse to answer and that's all there is to it.

Then the trial comes on in the Court.

And the only record before the Committee is just those that bears question and answer and refusal.

And then the Committee at the trial seeks to establish the ingredient of -- of the crime of pertinency by putting in hearings on -- and other times involving other people on other issues, can they use that against me?

That's my -- that's one of my difficulties with this case.

Mr. Kevin T. Maroney: Well, I think on -- on this point, Your Honor and -- and I think we'll elaborate on it tomorrow, I think there are two concepts of pertinency which we -- we have to deal with here and one is the question of proof of actual pertinency at the trial to comply with the statute, which is a -- a question as to whether or not the question asked by the Committee was within the power granted to the Committee to investigate.

If it's an appeal, if the question relates to appeal that has been assigned to the Committee to investigate and -- and that question relates to the appeal then I think the Government had shown actual pertinency.

Justice Potter Stewart: It's a little narrower than that, isn't it, Mr. Maroney?

The question has to be pertinent to a topic then under inquiry by the Committee as -- and also one that the Committee has been authorized to investigate.

Mr. Kevin T. Maroney: That's right, but I think the Government only has to show a particular topic then under inquiry aside from the question itself.

If there is an objection on the ground of pertinency, I think that's what the decisions --

Justice Hugo L. Black: Why do you say that?

Justice Potter Stewart: I -- I haven't understand -- understood to be that.

Justice Hugo L. Black: Why do you say that?

The indictment charges in language of its own, they asked him questions which were pertinent to the question then on the inquiry.

Is the Government free in this kind of case freed from the duty of proving beyond a reasonable doubt of that allegation?

Mr. Kevin T. Maroney: No, sir.

No, sir.

I think it does have to prove at that question.

Justice Hugo L. Black: You don't think they can get to sue him --

Mr. Kevin T. Maroney: Oh no.

Justice Hugo L. Black: -- (Voice Overlap) question was asked.

Mr. Kevin T. Maroney: Oh no, I think it's a question of whether that question relates to a topic as a -- as a matter of law which hasn't been assigned to the Committee as being within the power of the Committee to inquire into --

Justice Hugo L. Black: Whatever --

Mr. Kevin T. Maroney: -- and if it is --

Justice Hugo L. Black: -- whatever it is, you agree, do you not, the duty is on the Government through beyond a reasonable doubt, the questions that asked were pertinent, holding -- convicting the man.

Mr. Kevin T. Maroney: That's right, sir.

Now, in -- in this particular case, these hearings of which this hearing was -- was bought apart, this isn't a completely separate independent hearing, this is a part.

Justice William O. Douglas: Isn't so far as this petitioner goes?

Mr. Kevin T. Maroney: Oh I -- I mean --

Justice William O. Douglas: Well, that's (Voice Overlap) --

Mr. Kevin T. Maroney: That's his -- that's his approach to it.

Justice William O. Douglas: Yes.

Mr. Kevin T. Maroney: But I -- I don't think it is anymore than a witness appearing in a courtroom on the second day of trial and being asked as to what he may know of a particular case can just separate himself from the overall purposes of the trial.

The -- the Court is inquiring into guilt or innocence perhaps in a -- in criminal case.

As far as a particular witness is concern, it maybe only asking him, "Did he sell the murder weapon to the defendant?"

But the -- the Court is inquiring into a question of whether or not the defendant committed murder perhaps.

Justice Felix Frankfurter: Why don't you refer to page 293 when Mr. Tavenner told Mr. Deutch what the hearing in Albany was about and then Mr. Deutch conferred with Mr. Sawyer, his lawyer?

And then decide to answer some questions on the (Inaudible) decide to answer other questions not at all.

Mr. Kevin T. Maroney: That's correct, sir.

Justice Felix Frankfurter: He told him exactly what took place at Albany.

Mr. Kevin T. Maroney: There's ample evidence here of pertinency and -- and the subject --

Justice Felix Frankfurter: Is it --

Mr. Kevin T. Maroney: -- under inquiry.

Justice Felix Frankfurter: -- in the hearing the before the Committee why Mr. Deutch was on the stand.

Mr. Kevin T. Maroney: That's correct, sir.

Justice Hugo L. Black: Now, do you think -- will you state tomorrow, do you agree with what seemed to be the implication of the question as it had been asked here, that although the statute requires proof of pertinencies to make a crime and indictment charges that it was pertinent that further the -- of course, the man had not asked whether it was pertinent or not back when the hearing was held.

That relieves the Government of proving it was pertinent beyond a reasonable doubt.

Chief Justice Earl Warren: We'll recess now Mr. --

Print this transcript Transcript: 

Argument of Kevin T. Maroney

Chief Justice Earl Warren: Deutch, Petitioner, versus United States.

Mr. Maroney, you may continue your argument.

Mr. Kevin T. Maroney: Mr. Chief Justice and may it please the Court.

Chief Justice Earl Warren: Oh, pardon.

Oh, pardon me, I -- I did call you.

Mr. Kevin T. Maroney: May it please the Court.

I will first address myself to the problem that was being discussed yesterday afternoon, and I'll try to state our legal position on that issue and then if I can state the facts in this particular case, I think it will demonstrate that the problem is minimized when applied to the facts here.

Now --

Justice William O. Douglas: As you -- as you were ending your -- your argument yesterday, you were referring to page 293, where Mr. Tavenner for the Committee, refers to hearings at -- at Albany.

Mr. Kevin T. Maroney: Yes, sir.

Justice William O. Douglas: But I think it is significant or it maybe significant that -- the -- the subject matter of those hearings was -- is not to be found in -- in the transcript of this hearing.

Mr. Kevin T. Maroney: Well --

Justice William O. Douglas: We don't even know from this hearing whether it was about this - this matter or some other matter or some related matter.

Mr. Kevin T. Maroney: Well, Your Honor, I -- I do think it would be most helpful --

Justice William O. Douglas: And then the --

Mr. Kevin T. Maroney: -- if I --

Justice William O. Douglas: -- may I just continue, just a minute --Yes, sir.

Justice William O. Douglas: -- to indicate that the -- the reach of my question, because if you turn to page 33, you -- you come to Judge Holtzoff's opinion in which he says a little below the middle of the page, what those Albany hearings were about.

And it was about trade unionism and Communist-controlled trade unions.

Mr. Kevin T. Maroney: And --

Justice William O. Douglas: None of which -- none of which appears from the reference to the Albany hearings on page 293.

Now, maybe that's irrelevant, but at least those are the problems that were in my mind --

Mr. Kevin T. Maroney: Well --

Justice William O. Douglas: -- that you were closing yesterday.

Mr. Kevin T. Maroney: Well, I think we can show, Your Honor, from -- from the record here that the Albany hearings were concerned with Communism in education and Communism in labor.

Justice William O. Douglas: As I've -- I've read those and that's -- there's -- there's no doubt about that.

Mr. Kevin T. Maroney: That's right, sir.

And in the course of those hearings, it developed that there was -- there may have been an interrelationship between Communism at Cornell.

Communist infiltration at Cornell and Communism in labor and the Committee was pursuing the leads that it had to that effect.

Those leads lead directly to Mr. Deutch.

And it was for that reason that he was called originally to appear in Albany in connection with those very hearings.

Now, I think that in -- in probably 10 or 15 minutes, I could state the facts of this record, and I think that having those facts in mind, it is a much simpler task to apply -- to apply the facts here to the legal problems which were being discussed yesterday.So that I would prefer to proceed that way and I think it would be most helpful with -- unless the Court prefers that we state the legal position first.

Now, in July 1953, the Committee -- the House Committee on Un-American Activities, began a general investigation of Communist activities in the Albany area as well as in certain other key areas in the United States, Chicago and other cities.

The Committee conducted hearings in Albany in July 1953 for several days, and then suspended the hearings.

Now, the opening statement of those hearings is in the record at pages 38 to 40.

Chief Justice Earl Warren: That is at Albany?

Mr. Kevin T. Maroney: This is at Albany.

Yes, sir.

Chief Justice Earl Warren: Yes.

Mr. Kevin T. Maroney: This opening statement was made on -- on July 13, 1953 at the outset of those hearings.

And of course, the -- the Committee there states the legislative interest of the Committee and its desire to investigate Communist activities when -- within the Albany area.

That's in the -- the last full paragraph on that page.

Justice Charles E. Whittaker: Stated in what page?

Mr. Kevin T. Maroney: That's page 39, Your Honor.

Now, that last paragraph or the second sentence says that the Committee decided -- no.

“The Committee in its course of investigation came into possession of reliable information indicating Communist Party activities within the Albany area.

The Committee decided that this information was of such a character as to merit an investigation to determine its nature, extent, character and objects.”

And for that reason, they had commenced these hearings in Albany and they did in fact conduct hearings.

The -- the hearings were suspended in 1953 and in November of 1953, the Committee decided that it would resume hearings in Albany which it did the following April.

Now --

Justice Hugo L. Black: You mean April of 1954?

Mr. Kevin T. Maroney: April of 1954, yes, sir.

Now, at -- in the opening statement of the April 1954 hearings which appears beginning at page 270, 270 of the record and at the top -- near the top of page 271, the Chairman of the Committee announced in part that the Committee on Un-American Activities will resume this morning, the investigation of Communist Party activities within the capital area, referring to Albany.

This is a continuation of the open hearings which were conducted in Albany between July 13 and 16, 1953.

The investigation has been extended to adjacent areas, from which witnesses are also expected to be heard.

And at the bottom of that page he said, “Other testimony taken at 1953 Albany hearings related to the efforts of the Communist Party to infiltrate industry and other segments of society in the capital area.”

Testimony now to be heard is expected to supplement, that formally given on this subject and as indicated, will extend into adjacent areas.

He -- he then went on to refer --

Justice Felix Frankfurter: What page do you refer?

Mr. Kevin T. Maroney: Well, that begins at the bottom of page 271.

Justice Felix Frankfurter: 271?

Mr. Kevin T. Maroney: Yes, sir.

And extends over in 272.

And in -- about the middle of that page where the Chairman is continuing, he states that, “This Committee is not investigating labor unions, but is investigating Communism within the field of labor where it has substantial evidence that it exists.”

And then he makes reference to the Committee's interest in view of H.R. 7487, which was a bill which would have dealt with the subject of Communist-dominated labor unions.

Now, another reference which shows committee's interest in these Albany hearings can be seen in the Committee's annual report for 1954, which is also part of the record and which appears beginning at page 320, where on page 325, where the Committee is summarizing the hearings it -- it did hold in April, 1954 at Albany.

At the page -- at the top of page 325 taking up to the middle of the sentence referring to hearings in Albany, dealing principally with Communist infiltration of vital defense industries and education within the capital area and throughout the State of New York and adjacent states.

So that the evidence here in the -- in the Committee hearings and in the report of the Committee on those hearings, clearly shows that the Committee was interested in Communist infiltration into labor and Communist infiltration into education.

Now in addition, during the Albany hearings that began on April 7, two witnesses testified concerning they're having attended Cornell University and concerning they're having taking summer jobs in Communist-dominated labor unions.

Now, in that connection it was explained that one of these witnesses were the school of the Industrial Labor and Relations at Cornell and that school had a policy of requiring each student.

During the summers, he was in attendance at the school to at least make an effort to spend one -- one summer working with -- with a management group, one summer with a union group and one summer with a mediation board.

Now, these witnesses testified as to they're having attended or having taking summer jobs and in connection with those jobs in -- which were connected with unions having been engaged in Communist Party activities and then continuing to engage in Communist Party activities upon there return to the Cornell campus.

One of the witnesses, Emmanuel Ross Richardson testified before the Committee, I think on April the 8th.

And he stated that he had gone into the UE -- had going to work with UE union, the United Electrical workers at the General Electric plant in 1948 and was there recruited into the Communist Party.

He returned to the Cornell in the fall and continued in the Communist Party on the campus.

Now, Richardson also testified that he was at Cornell during the period from 1950 to 1953.

That after he was recruited into the Party, he was assigned to the labor youth leg.

He stated that there was a graduate group, a -- a Communist cell on the campus composed of members of the graduate group at Cornell.

He identified the membership of this group as being the petitioner and petitioner's wife, one Homer Owen and Owen's wife and a Mr. Marzac and his wife.

He also testified that he was aware of only one member of the faculty at Cornell who was a member of the Communist Party.

And then he didn't know the identity of that person, that the petitioner here was the only -- was the contact man for the Communist Party with this member of the faculty at Cornell.

Richardson also testified that during this period of time, 1950 to 1953, he had received from the petitioner a $100 contribution to the Communist Party, which the petitioner had received from a source which was unknown to Richardson.

Now, because of this information furnished by Richardson and by the other witness that I referred to Marqusee and also -- who also testified before the Committee and their testimony is in the record, and also because of information furnished to the Committee by Homer Owen, in conference with the members of the staff.

Mr. Tavenner, the committee counsel, testified at the trial that as a result of this information, the Committee was interested in determining the extent of the -- of the possible inter -- interplay between Communist infiltration into education and Communism in the field of labor.

Chief Justice Earl Warren: Was Richardson an agent of the Government during the time that he was there at Cornell with this man or did he -- did he subsequently recap and -- and testified --

Mr. Kevin T. Maroney: Richardson was --

Chief Justice Earl Warren: -- for the Government.

Mr. Kevin T. Maroney: Richardson I think joined the Communist Party with the knowledge of the Federal Bureau of Investigation.

The other witness, Marqusee, I don't believe did.

I think that he became dissolution with the Party and -- and testified fully before the Committee.

Now, Mr. Tavenner testified --

Justice Hugo L. Black: Was Richardson an employee of the Government that time?

Mr. Kevin T. Maroney: Well, he was a -- I don't know if he was paid, I'm -- I'm not sure Your Honor.

He -- he was reporting regularly during the time he was a member of the Party to the Federal Bureau of Investigation.

Justice Hugo L. Black: Then the record show whether he was made an employee?

Mr. Kevin T. Maroney: Well, he -- he wouldn't be an employee in the usual sense.

Justice Hugo L. Black: Well --

Mr. Kevin T. Maroney: I mean he -- he was not an employee (Voice Overlap) --

Justice Hugo L. Black: Was he hired?

Mr. Kevin T. Maroney: -- as such, he --

Justice Hugo L. Black: Was he hired?

Mr. Kevin T. Maroney: -- he may have received funds.

Sir?

Justice Hugo L. Black: What, was he hired?

Mr. Kevin T. Maroney: I'd say --

Justice Hugo L. Black: Did he get paid for the work?

Mr. Kevin T. Maroney: Well, I don't -- I don't think the record shows whether he got paid of not, I -- I -- it would be the usual practice that he would at least get reimbursed expenses that he -- he might have been incurred in connection with his Communist Party activities and he may have received additional sums.

Justice Hugo L. Black: He was informed?

Mr. Kevin T. Maroney: That's right, sir.

Justice Hugo L. Black: Did he?

Mr. Kevin T. Maroney: So that Mr. Tavenner testified at the trial here.

That as a result of this information --

Justice John M. Harlan: What -- what page is that?

Mr. Kevin T. Maroney: This on page 24, Your Honor.

That have been furnished by Richardson and Marqusee and Owen.

That the staff had -- this is near the top of the page that witnessed -- the staff had ascertained and had reported to the Committee that there were members of the Industrial Relations department of the University, who were accepting positions with some labor unions which had been -- which were by our own testimony, Communist controlled and it was the investigation of that matter which brought this matters to life.

Chief Justice Earl Warren: This was testimony at the trial?

Mr. Kevin T. Maroney: Yes, sir.

Chief Justice Earl Warren: Yes.

Mr. Kevin T. Maroney: And on the preceding page at the top of page 23, he stated, “The Committee was desirous in ascertaining to what extent, any of those students leaving on the summer courses were influenced to select the Communist control unions for the purposes of their summer work.”

That is what we were leading to.

In -- in --

Chief Justice Earl Warren: Was there anything stated that the hearing to that effect (Inaudible)?

Mr. Kevin T. Maroney: In the Albany hearings?

Chief Justice Earl Warren: That at -- can the hearing at which this petitioner testified?

Mr. Kevin T. Maroney: Well, I might --

Justice William O. Douglas: Based upon --

Mr. Kevin T. Maroney: I might explain this, Your Honor.

The Albany hearings began on April 7 and continued through April 8 and 9.

The Committee did not learn the address of the petitioner until April 6.

They issued a subpoena on April 7 which was served on that date to the petitioner, served on the petitioner on that date.

Returnable in Albany on April the 9th, in other words, the Committee subpoenaed the petitioner to come to Albany to appear at these very hearings on April 9, in conjunction with the subject matter of those hearings.

His attorney called the committee counsel upon the petitioner's receiving the subpoena and asked for an extension so that he could study the case.

The committee counsel agreed to an extension to have the petitioner appear in Washington on April the 12th.

In other words, instead of appearing Friday in Albany, he was told it would be alright if he appeared on Monday in Washington, since the Committee was leaving Albany and coming back to Washington.

Now, when -- so that he -- he did appear on that date.

He appeared before the -- before this Committee, and the Committee announced at the outset who the Chairman was.

According to the record, on -- beginning on page 292, beginning of petitioner's testimony before the Committee, the -- the Chairman stated after saying, “You may sit down, please.”

Referring to the petitioner obviously and he says, “Let the record show that for the purpose of taking this testimony this morning, pursuant to the rules of this Committee, the Chairman has appointed the Subcommittee consisting of Messrs.

Scherer, Doyle and Jackson, with Jackson acting as Chairman.

“Are you ready to proceed Mr. Counsel?”

So that of course these were not unidentified members of the Committee at all.

They were identified that the outset to the petitioner.

Petitioner knew that he had been subpoenaed before the House Committee on Un-American Activities, he knew that he been subpoenaed to appear in conjunction with his Communist activities.

He -- he knew, he admits he knew in his brief that he knew of Ross Richardson's having testified before this -- before a -- a committee in Albany, at hearings where he originally was subpoenaed to attend.

And as a matter of fact, I think it's of some note here in connection with the argument that he -- that he was pulled in off the street and -- and sat before three unknown men without any explanation that it was the petitioner in the course of this testimony, who first mentioned the name of Ross Richardson.

In -- in making reference on page 295, during the interrogation and after he had refused to answer some of the questions, on 295 in the middle, Mr. Deutch says, “The Committee knows who Ross Richardson's statement that this gentleman had quit the Communist Party.”

So that the Committee or -- or the petitioner wasn't coming into this -- this hearing, with no idea of what the area of interest of the Committee was.I think he had a very definite idea.

Chief Justice Earl Warren: Well, what is there in the record to -- to show just what area of interest he was informed about?

Mr. Kevin T. Maroney: Well, as -- as petitioner counsel -- petitioner's counsel referred to yesterday.

At the outset of the hearing after he answers some preliminary questions about his age and address, and so forth, education, Mr. Tavenner, at about three quarters on the way down on page 293, explained to him that during the hearings in Albany last week, the Committee had received information to the effect that petitioner was involved in Communist Party activities at Cornell University, that if you were a member of the Communist Party group -- I'm -- I'm not reading this, I probably would do better to do it.

Chief Justice Earl Warren: Well, that's alright, if that's (Inaudible) do that perfect, just do it.

Mr. Kevin T. Maroney: That if you were a member of the Communist group, the Committee would like to ask you about your activities there at Cornell.

Now, the petitioner -- so then they did, they say, “Were you a member of a group of the Communist Party at Cornell?”

The petitioner at the outset said, “I wished to register a challenge as to the jurisdiction of this Committee under Public Law 601, which is the Committee's enabling legislation.”

Petitioner incidentally was accompanied by counsel on this occasion.

Now, he then said, “But under your jurisdiction as stated, I answered, yes, I was a member of the Communist Party.”

Then Mr. Tavenner said, the Committee was advised -- no, I -- I seem to have been wrong on my statement that he was the first one to bring in the name of Ross Richardson into the hearings, because he was -- he was so advised of Richardson's testimony.

He does however concede in his brief that he was aware from newspaper articles of Richardson's having testified before the Committee and having identified him as a member of the Communist Party.

Now, Mr. Tavenner then advised him that the Committee was advised that a witness by the name of Ross Richardson has stated that, “You accidently assigned between a Communist Party group on the campus and a member of the faculty at Cornell and that you knew the name of the member of that faculty who was a member of the Communist Party.

Will you tell us who the member of the faculty was?”

Mr. Deutch said, “Sir, I am perfectly willing to tell you about my own activities, but do you feel I should trade my moral scruples by informing on someone else?”

Now, then the Chairman explained to him that moral scruples was not a legal objection, that his declination must consist of something more than his moral scruples.

And Mr. Deutch then said, “As to details that, I think the whole question has been magnified more than it should have.”

And he further said at the bottom of page 294, “I can only say I do not believe I can answer questions about other people, but only about myself.”

Justice Hugo L. Black: Did he later -- did he later answer the question about members of the faculty?

Mr. Kevin T. Maroney: Oh no, sir.

He -- he refused.

Justice Hugo L. Black: I thought I read where he said that they were not members of the faculty.

Mr. Kevin T. Maroney: Well, I think he said he was not a member of the -- he was not a professor at all, but he did not identify the person.

Chief Justice Earl Warren: Mr. Maroney, the question I was asking was designed to unless that whether -- whether or not, the defendant is to be charged here with the knowledge of what was said at the Albany hearings, is there anything in here to indicate that the Committee informed him of -- of what the Albany hearings were designed to accomplish and -- and to tell him what was said at that one?

Mr. Kevin T. Maroney: Your Honor, other than the testimony and the opening statement during the course of the testimony of the petitioner's appearance in Washington, these other materials, the Albany hearings, the opening statement of the Chairman at those hearings or report of the Committee for 1954 and so forth, those things were put in on the question of actual pertinency of these questions to the subject matter being investigated by the Committee.

There -- there is no indication that the petitioner was aware of these other -- of this other information, other than his obvious awareness of the fact that the Committee had called Ross Richardson, had interrogated Ross Richardson concern -- concerning Communist Party activities at Cornell.

And the opening statement at the time of petitioner's appearance summarizing in a nutshell what had been furnished to the Committee concerning petitioners activities at Cornell and the Committee's desire to pursue with him his knowledge of Communist Party activities in Cornell and in the Ithaca area.

Now, his testimony wasn't limited to Cornell alone.

It was -- they did ask him questions about the Downtown Club on page 298.

“Were you ever a member of the Downtown Club at the Communist Party in Ithaca?”

He said, “I don't believe so.”

“Did you attend meetings of that group?”

And he said, “No.”

So that -- he was asked questions about Cornell, about the graduate group, about the professor, about the donor of the $100, he refused to answer the questions about the professor and the donor.

He was asked if he knew Homer Owen, who --

Justice Hugo L. Black: I thought he finally said that he -- it was not a professor, did he not?

Mr. Kevin T. Maroney: Well, he did say on page 295, Your Honor.

He said, “I could amplify that point, I do not mean the point of contempt.

I think -- I -- I happened to have been a graduate student.

The only one there and the organization is completely defunct and the individual you are interested in wasn't even a professor.”

The magnitude of this is really beyond reason.

Now --

Justice Hugo L. Black: Is that --

Mr. Kevin T. Maroney: -- the Committee --

Justice Hugo L. Black: -- is that one of the questions that he was indicted for not answering?

Mr. Kevin T. Maroney: Well, the -- the question appears on the preceding page, “Will you tell us who that member of the faculty was?”

Justice Hugo L. Black: Now, is that the one -- was he indicted for not answering that question?

Mr. Kevin T. Maroney: That's correct, sir.

Justice Hugo L. Black: Now, Richardson had told the Committee that there was a member of the faculty.

The petitioner flatly refused on the grounds of moral scruples to identify the member of the faculty.

Justice Hugo L. Black: At first?

Mr. Kevin T. Maroney: At first, then in debating to some extent.

He said that the organization is defunct.

In other words, he's -- he's saying that based on information that I know, but which I won't tell you or I won't let you verify, I am making a determination that --

Justice Hugo L. Black: I -- I understand.

Mr. Kevin T. Maroney: -- the answer is unimportant to you.

Justice Hugo L. Black: I understand that, but did he later say that the -- it was not a professor?

Mr. Kevin T. Maroney: He -- he does say at -- near that top of that page where it says Mr. -- 295.

He said, he was the only one there and the organization is defunct and the individual you were interested in, he doesn't deny there was an individual.

Justice Hugo L. Black: Well --

Mr. Kevin T. Maroney: The --

Justice Hugo L. Black: -- I -- I understand.

Mr. Kevin T. Maroney: -- the individual you were interested in wasn't even a professor.

Justice Hugo L. Black: But what -- read the question that he was indicted for not answering, was it not --

Mr. Kevin T. Maroney: Will you tell us --

Justice Hugo L. Black: -- I don't know which one it was.

Mr. Kevin T. Maroney: “Will you tell us who that member of the faculty was?”

Justice Hugo L. Black: Yes.

Mr. Kevin T. Maroney: He refused to answer.

Justice Hugo L. Black: And -- he refused to answer there, but did he later answer and say that it was not a member of the faculty?

Mr. Kevin T. Maroney: He said, “The individual you are interested in wasn't even a professor.”

He does not say he was not a member of the faculty.

Justice Potter Stewart: I suppose the faculty at Cornell like a faculty at most universities consist of instructors, assistant professors, associate professors and professors, is that correct?

Mr. Kevin T. Maroney: I assume so, Your Honor.

The record doesn't go into that.

I -- I think it clear here that the witness was not answering concerning this individual whom he knew the Committee was inquiring about.

Justice Hugo L. Black: An individual --

Mr. Kevin T. Maroney: And I certainly --

Justice Hugo L. Black: -- an individual?

Mr. Kevin T. Maroney: An individual who was identified by Ross Richardson as a member of the faculty.

A person whose identity, the witness obviously recognized -- obviously recognized that he could give an answer because he picks him out and then he says he's not -- he's not a professor.

So that there's no misunderstanding on the -- on the witness' part --

Justice Hugo L. Black: Well --

Mr. Kevin T. Maroney: -- as to who's identity is called for.

Justice Hugo L. Black: There's no misunderstanding maybe, but he answers that he was not a member of the faculty.

That's what they asked for.

Mr. Kevin T. Maroney: No, sir.

The question was, “Who was that member of the faculty --

Justice Hugo L. Black: That's right.

Mr. Kevin T. Maroney: -- for whom you were the contact with the Communist Party?”

Justice Hugo L. Black: Yes.

Mr. Kevin T. Maroney: Not was he a member of the faculty --

Justice Hugo L. Black: On who was that --

Mr. Kevin T. Maroney: -- who was he?

Justice Hugo L. Black: -- who was that member of the faculty and he's indicted for not answering that, isn't it?

Mr. Kevin T. Maroney: That's correct, sir.

Justice Hugo L. Black: And he did state that he was not a member of the faculty.

Mr. Kevin T. Maroney: He said he was not a professor.

Justice Hugo L. Black: But --

Mr. Kevin T. Maroney: I -- I think it makes quite a difference, Your Honor.

I think that he -- he may very well had been taking the position that he was an associate professor or -- or a -- an instructor.

I think that --

Justice Felix Frankfurter: Men are on faculties for decades without becoming professor.

Justice Hugo L. Black: Yes, sir.

Justice Hugo L. Black: And did he say this -- was he asked this later, “May I ask this question, was it made by a teaching fellow of any sort at the University, less than the rank of a professor, a person that was instructor in some place?”

Did he say, “To the best of my recollection, either do not believe made by any member at Cornell University?”

Mr. Kevin T. Maroney: Where is this, Your Honor?

Justice Hugo L. Black: On page 297.

Mr. Kevin T. Maroney: Well, this is the donation, Your Honor.

Justice Hugo L. Black: The donation --

Mr. Kevin T. Maroney: Isn't it?

Justice Felix Frankfurter: But it is the question.

Mr. Kevin T. Maroney: This is the $100 donation.

Justice Hugo L. Black: But you asked him about the donation, was he indited for that too?

Mr. Kevin T. Maroney: They asked him -- oh, yes.

Justice Hugo L. Black: What is that question?

Mr. Kevin T. Maroney: (Inaudible) that's on page 296.

Justice Hugo L. Black: 296.

Mr. Kevin T. Maroney: They asked him -- Mr. Tavenner said -- this is just a little above the middle of the page, “The Committee received testimony from Ross Richardson to the effect that you collected certain donations for the benefit of the Communist Party and then in one occasion you delivered to him the sum of $100, without designating to him the source of it.

Will you tell the Committee please, the source of that $100 contribution if it was made?”

Mr. Deutch, “No, this contribution was made.

I believe, I gave you the reason why I declined to answer regarding names and this was from a personal friend.”

And then in further discussions he says that he doesn't believe the donor of $100 wasn't a teaching member or wasn't a member of Cornell.

Justice Hugo L. Black: How many questions was he indicted for refusing to answer and what did each one involve?

Mr. Kevin T. Maroney: He was indicted -- the indictment appears --

Justice Hugo L. Black: For which he was convicted.

Mr. Kevin T. Maroney: Yes, sir.

The indictment appears at page 7 or beginning on page 6 of the record.

Questions are set forth on page 7.

First question, after the explanation as to Ross Richardson's testimony is, “Will you tell us who that member of the faculty was?”

The second question --

Chief Justice Earl Warren: And what -- what member of the faculty were they referring to there?

Mr. Kevin T. Maroney: Well, the -- the preliminary statement on that count explains that the Committee was advised that a witness by the name of Ross Richardson has stated that “You acted as liaison, this is the petitioner --

Chief Justice Earl Warren: What --

Mr. Kevin T. Maroney: -- to a Communist Party group on the campus, any member of the faculty at Cornell and that you knew the name of the member of that faculty who was a member of the Communist Party.

Will you tell us who that member of the faculty was?”

Now, Count Two is, “Will you tell the Committee, please, the source of that $100 contribution, if it was made?

And of course that question followed the recitation by the Committee that Richardson had stated that petitioner had turned over to him $100 contribution from a source which petitioner did not disclose to Richardson.

The next question was -- Count Three, “Is where were these meetings held?”

And he was acquitted on that count, because he -- he did say I think that although he wouldn't answer -- that he didn't where they were held and the District Court acquitted since he had --

Justice Hugo L. Black: Then he did --

Mr. Kevin T. Maroney: -- no knowledge.

Justice Hugo L. Black: He answered that he didn't know, didn't he?

Mr. Kevin T. Maroney: That's right.

And in that --

Justice Hugo L. Black: And he's indicted for not answering.

Mr. Kevin T. Maroney: -- that was a basis for the acquittal.

Justice Hugo L. Black: And the jury acquitted him on that.

Mr. Kevin T. Maroney: The District Judge, that he was tried without a jury.

Justice Hugo L. Black: You have acquitted him --

Mr. Kevin T. Maroney: Yes, sir.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Kevin T. Maroney: Now, Count Four, “Were you acquainted with Homer Owen?”

Count Five, “The witness is directed to give a name of the person by whom he was approached.”

And the evidence shows that that question refers to the person who approached him with respect to joining the Communist Party, in other words, the person who recruited him into the Communist Party.

Justice Hugo L. Black: How many persons then does that include that the Committee was refused -- why he refused to give the -- a name or a person, how many persons?

Are any those the same one?

Mr. Kevin T. Maroney: Or -- well --

Justice Hugo L. Black: That they asked him about?

Mr. Kevin T. Maroney: No, certainly now in his record you cannot say they're the same ones.

Justice Hugo L. Black: You have them one.

Mr. Kevin T. Maroney: If the petitioner would answer the questions it might so turnout, but --

Justice Hugo L. Black: We have one to four reasons (Voice Overlap) well one of them was, “Were you aquatinted with Homer Owen?”

Mr. Kevin T. Maroney: So, Owen is identified, that's right.

But -- but his reason for refusal was --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Kevin T. Maroney: -- he doesn't want to talk about other people.

Justice Hugo L. Black: What was advised of him -- important to knowing whether he was acquainted with Homer Owen.

That with that lot weighs the value of the First Amendment than when you put them into the balance of --

Mr. Kevin T. Maroney: Well, to this -- to this extent, Your Honor, Ross Richardson can testify that the graduate group at Cornell had consisted of six members, the petitioner, Homer Owen and Mr. Marzac and their wives.

You -- you will notice I think, we -- we covered it previously that during the course of the petitioner's testimony before the Committee, he says, he was the only member of the graduate group at Cornell.

So that, on the -- on the question of verifying the information received from Richardson as to the size and extent of the graduate group alone.

Justice Hugo L. Black: Well, why did you have to verify what the hired agent of the Government said that he said that man was there?

Mr. Kevin T. Maroney: Oh, I think the Committee, Your Honor, is -- is --

Justice Hugo L. Black: Well, they're not trying out (Voice Overlap) --

Mr. Kevin T. Maroney: -- as a right.

Justice Hugo L. Black: -- verification or they -- I assume that it wasn't of extreme important for them to bolster Mr. Richardson's evidence, was it?

Mr. Kevin T. Maroney: In trying to get the facts upon which they can make (Voice Overlap) --.

Justice Hugo L. Black: Well, they have the facts from him, didn't they?

Mr. Kevin T. Maroney: Well, the facts conflict with what the petitioner said, Your Honor.

And I think is the --

Justice Hugo L. Black: Well suppose he did --

Mr. Kevin T. Maroney: -- Committee like any tribunal.

Justice Hugo L. Black: -- suppose he did -- suppose he did, how would that have to pass legislation?

Mr. Kevin T. Maroney: Well, because the Committee has a right to -- to determine the extent --

Justice Hugo L. Black: I'm not talking about the right.

It better had the right -- excuse me.

It's been held to ask questions and have to pass legislation.

How would they have them pass legislation to know whether this doctor or whatever a professor, or whatever he was, had said one thing, if there was a conflict which I have seen here and Mr. Richardson had said another, who is Richardson being the Government informant.

Surely, they don't -- don't need to bolster the informant's evidence to pass legislation.

Mr. Kevin T. Maroney: No.

It -- it may be, Your Honor that they could proceed with an investigation that way, but on the other hand, a committee is certainly free as a court is free to attempt to get to the facts and to ascertain the correct facts.

And if it does have conflicting statements, it has the right to resolve what the actual facts were.

And I certainly don't think that that is any -- that because it has information from one source that a person can refuse to testify before the Committee just because it maybe accumulative evidence.

Justice Hugo L. Black: Well of course, it might be possible that they know exactly what it is and simply wanted to get him to refuse to answer a question.

Mr. Kevin T. Maroney: Well, I think aside from the fact, Your Honor that the Committee does have a right to -- to gather cumulative evidence, that this question as to Homer Owen was obviously a preliminary question and the Committee --

Justice Hugo L. Black: I suppose that the --

Mr. Kevin T. Maroney: -- may well have --

Justice Hugo L. Black: If it was preliminary, what's the importance that would justify sending a man to jail for hereon, what you call, dismissed as a preliminary question?

Mr. Kevin T. Maroney: Well, Your Honor, to begin with, he -- he was sentenced to 90 days, moreover --

Justice Hugo L. Black: He could've been sentenced for a year on that count, doesn't it?

Mr. Kevin T. Maroney: Oh no, he's been sentenced to 90 days.

Justice Hugo L. Black: I'd say he could have been --

Mr. Kevin T. Maroney: Or he could have been, yes.

But the point is Your Honor, that he can -- has no more right unless he interposes a legal objection to refuse to answer a proper preliminary question which may lead to a further, more direct inquiry than he has to refuse to answer a -- a question which is permanent on its face.

Justice Hugo L. Black: Do you say he has no more right, but the Committee has certain rights and it was restricted in certain ways, does it have a right to ask for question, which is of no importance to it in passing legislation?

Mr. Kevin T. Maroney: I think, I take in the circumstance of this case it does, Your Honor, under the Court's decisions in Barenblatt.

Justice Hugo L. Black: Well, that -- that basis could --

Mr. Kevin T. Maroney: This Court's decision in Barenblatt.

And --

Justice Hugo L. Black: Hope not, but --

Mr. Kevin T. Maroney: -- plus the fact, Your Honor that I think as far as this case is concerned that the other three questions that he was convicted for refusal to answer are pertinent of there face and that really the Court does not have to concern itself very much with the question relating to Homer Owen.

Justice Hugo L. Black: But it has to concern itself does it not with their importance, in connection with the balancing?

The committed right to get the information --

Mr. Kevin T. Maroney: Well not if --

Justice Hugo L. Black: -- against his -- against their -- his right not to be required to divulge his association.

Mr. Kevin T. Maroney: Well, not if the Court concludes that he -- his First Amendment rights in refusal to answer even if he asserted them which he did not.

In refusal to answer the first question, do not overwrite the Committee's legitimate interest in securing the information and therefore he was not authorized or not permitted as a matter of law, to refuse to answer the question.

If he's properly convicted for the first count, which I think it's very clear under the Court's decision he was or under Count Two or under Count Five, then in view of the fact that this was a general sentence, which is supported by a -- a proper verdict on any one count, then the verdict must be sustained.

Justice Felix Frankfurter: Is it your understanding, Mr. Maroney, that in -- investigation was by a congressional committee either in the House or the Senate, the Committee is restricted -- cannot ask questions of which it already knows the answers?

Mr. Kevin T. Maroney: No, sir.

Justice Felix Frankfurter: Or cannot call a witness as cumulative testimony to what has already been testified to and it can't do this again and again and again, is that your understanding that that's the past history of congressional investigation?

Mr. Kevin T. Maroney: I think that's correct, Your Honor.

The Committee can gather cumulative evidence for a legislation purpose.

Justice Felix Frankfurter: And you can ask questions which it has already -- which it knows or which it have documentary evidence and can pile it on?

Mr. Kevin T. Maroney: Yes, sir.

Justice Felix Frankfurter: And that's been done time out of mind in the whole history of congressional investigation?

Mr. Kevin T. Maroney: And very many committees have done it, Your Honor.

Now --

Justice Potter Stewart: Who's just stated the passing of -- that if we should hold that anyone of these questions was legitimate and proper that we should sustain the conviction in this -- that was the approach taken in the Barenblatt case and the Braden case?

Were there were in fact specific -- specifically imposed concurrent sentences.

Here, they -- they were not, there were just one general 90-day sentence for -- for conviction, isn't that true?

And one general $100 crime for conviction.

Mr. Kevin T. Maroney: Well, Your Honor, the -- the sentence here is the same type sentence as was imposed in Barenblatt.

It -- it is a general sentence upon the conviction on all -- on each of the counts.

In the -- in the slip opinion of the Court's decision in Barenblatt, the Court states that upon conviction under all counts, a general sentence of six months imprisonment and a fine of $250 was imposed.

Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one count, the judgment below must be upheld, if the conviction upon any of the counts is sustainable, citing the Claassen, Roviaro, Whitfield case to which we would add the -- the case of Pinkerton v. U.S., 328 U.S. 640, which I think you'll support for the type of sentence that was given here.

In other words, the -- the Court sentenced him to a general sentence which I think has the same effect and the Court has so held as if he had sentenced him to 90 days on each count to run concurrently.

And -- and then if anyone of those counts supports the general sentence, then the -- the verdict below must be sustained.

Now, to just spend a -- a minute or two on the -- on the question that be diverted from the beginning as to the -- the question here or the distinction that we make and we think the Court has made between actual pertinency or jurisdictional pertinency as the Court I think referred to it in the Watkins case and awareness of pertinency which is a completely different question.

As we see it, there's a two-fold obligation that is involved in one of these cases.

One is that the statute requires that there be proof of actual pertinency, pertinency as a matter of law to a subject under investigation by the Committee.

This is imposed by the statute, it's an element of -- of the offense, it's an element which the Government can prove or must prove.

And the failure of the Government to prove actual pertinency of course can be raised by the defendant.

The second problem arises as a result of the requirement laid down by this Court in the Watkins case, which involves the question of the awareness of pertinency which was a rule evolved for the protection and out of fairness to the witness.

And the Court clearly stated in the Watkins case that if the witness objects on the grounds of pertinency, it is the duty of the tribunal then and I think it's clear only then, need it make an explanation of pertinency to the witness.

If it is already been made clear to him, it would not even have to make in the -- further explanation in those circumstances.

But a -- an obligation on the Committee upon the refusal to answer to explain the pertinency and the connective reasoning if necessary, only arises when there is an objection at the time the question is propounded.

In the absence of such an objection, what the Government must do at trial is to show that there was a legislative committee that it -- that it would performing a legislative function, that it did have a subject under inquiry, that it was authorized to make and that this question was as a matter of law, pertinent to such subject under inquiry.

Now here, the District Judge found if upon this evidence that the Committee -- and cannot be the Albany hearings of which I think it's only fair to say that the -- the petitioner's testimony was a part even though it may've been held in Washington.

It was held here for his convenience.

The only purpose of the hearing being held here was because he -- he begged-off going to Albany on April 9.

If the District Court found that the Committee in the conducting the Albany hearings wasn't interested in Communism in labor and Communism in the field of education and the possible interrelationship between Communism and labor and Communism in the -- in the educational field.

The -- a petitioner's appearance before the Committee, he was told very clearly, the Committee wants to know about your activities at Cornell in the Communist Party your activities in Ithaca.

He was told specifically about what Richardson had testified before the Committee concerning the petitioner's activities.

And it had told him these precise areas that Richardson was unable to furnish and that they would like to get from the petitioner, the -- the name of the member of the faculty, of the donor of $100.

Justice John M. Harlan: Supposing they hadn't told them anything?

Mr. Kevin T. Maroney: If they -- if they --

Justice John M. Harlan: And just tired of questioning him and he to want to have -- and answered questions throughout to raising any objection, would that make any difference to your position?

Mr. Kevin T. Maroney: No, sir.

No, sir, because all we would have to show at the trial would be --

Justice John M. Harlan: A legal --

Mr. Kevin T. Maroney: -- pertinency as a matter of law the fact that he didn't raise the objection of pertinency relieves the Committee of the -- of the obligation of explaining it to him.

We point that out here to show that not only does -- did the Government establish its case in that way, but here additionally, there I think is abundant evidence that the petitioner in this case was aware of what the Committee was calling for.

He was aware of what the Committee was interested in and what he was called upon to give the Committee.

So that under -- under any theory of the case, it is perfectly clear that this witness refused with full knowledge of what was called for.

Justice Felix Frankfurter: What -- what is your basis for saying he was aware of it?

Mr. Kevin T. Maroney: Because of the explanation given to him about Richardson's testimony and the Committee telling him we want to -- we want to interrogate you about your Communist activities at Cornell, there explanation as to Richardson's testimony about the $100 donor.

I think that that put him on notice that that was the Committee's interest.

Justice Felix Frankfurter: But the record goes beyond that.

He says “I see.”

When the Chairman explained to him what it was all about, it is heard, “Yes, I see.”

And he said, “You invoke 601.

601 tells you what it's all about to invoke that in the terms and Mr. Doyle explained it to him, “Therefore you see, I'm calling your attention to the fact, this question goes into be extent.”

I just wanted -- called up your attention Mr. Deutch, “Yes, I see.

The only thing I'm saying, sir, my challenge is -- is a constitutional -- on the Public Law 601.”

Mr. Kevin T. Maroney: That's right, sir.

Now, I think that I might just mention very quickly the argument as to the First Amendment.

First of all or preliminarily, I might just mention that this Court in the Yates case, the Yates contempt to Communist case held that the refusal to answer as to the names of other people was although it might be understandable as far as a witness' reluctance to furnish names in certain circumstances, it is not a legal objection to the refusal.

I -- I think this record makes it clear the petitioner has noted -- had no -- at no time asserted a legal objection to responding to these questions.

On the point of the First Amendment, our position is he didn't raise the First Amendment.

No time that he refused to answer on the basis of the First Amendment and that we think that under the -- the Court's -- this Court's decision in the Ullman case, which involved the immunity statute that the Court there indicated in that case that it would not consider a First Amendment objection because he had not raised it before the trial court at the time he refused to answer the questions of the grand jury.

Secondly, even aside -- aside from that, we think it's very clear that he has no standing to rely on the First Amendment in refusing to answer as to some other person.

Here, he -- he identified himself as a member of the Communist Party and -- and he says, “But I don't want to identify the member of the faculty.”

Justice Felix Frankfurter: Well the fact that -- in fact, he seeks to protect somebody else wouldn't be invoking the First Amendment for somebody else, if in fact the question wasn't relevant either to the subject matter of the under power of the Committee or otherwise, was not a question that they could validly put.

Mr. Kevin T. Maroney: Oh, no.

I -- I agree with that Your Honor.

But -- I mean we don't -- you don't -- the Court doesn't even have to get to the point where it has to balance the Committee's interest.

Justice Felix Frankfurter: But not because he's trying to protect somebody else, it's because that is valid only -- I mean that's an invalid objection only if otherwise he's on the duty to answer.

Mr. Kevin T. Maroney: That's right.

That's right.

And that even if the Court should apply the First Amendment test that it -- that was enunciated in -- in Sweezy and Uphaus and Barenblatt, that it clearly should be resolved in favor of the Committee's right and duty to -- to exactly answers to these questions.

Chief Justice Earl Warren: Mr. Sawyer.

Argument of Henry W. Sawyer Iii

Mr. Henry W. Sawyer Iii: May it please the Court.

First of all, Mr. Justice Stewart asked the question to me at the outset of my argument yesterday.

I (Inaudible) to look in the library this morning and I regret to say that I come to the same conclusion as Mr. Maroney, sir.

Mr. Maroney has said that this Committee basically and he read Mr. Tavenner's remarks, was interested in pursuing and how does it subject to the interrelationship between the labor union infiltration on the one hand and the Communist on the Cornell campus on the other.

That having taken place by -- of this practice of summer -- taking of summer jobs.

The man, Marqusee, did that if you may recall.

And it's curious to me that if that's the subject, then that's what the Committee was interested in that they never asked Mr. Deutch anything about that practice.

Now, repeatedly it's this -- practice is used as a link to link together the subject matter of the hearing.

And I'm assuming now arguendo that reading the question discloses that the Committee is asking a series of questions about Cornell and obviously, even in the grammatical sense, a question must have a subject matter, of course, he knows when they say to him, “What was the source of the $100 contribution that the committee member or the committee counsel is interested in and the subject to that is the $100 contribution.

If that's what's subject matter means in the statute is or in this Court's decision, it means nothing.

It would only bar an inquiry which was conducted by in -- by madman who couldn't frame sentences.

It must mean more than that.

Now, the Government had not addressed itself to a much more basic problem in dichotomy in this case in the subject area, then whether or not, he made a pertinency objection.

And that is the striking contradiction between proof at trial and subject matter at looking at the hearing.

Now they say, oh, there was a link between -- between the proofs.

What was proof of trial -- proof of trial concerned all of these questions of the infiltration of labor in the Albany area and the labor youth league and all such matters.

And -- and the subject as it developed by questions of the hearing and I'm not speaking now whether witness was aware of the subject or not, let's assume he was totally aware of it, it was totally the graduate group of Cornell.

And the link is this practice of taking summer jobs.

The only connection is this one thing and this was never asked Mr. Deutch, whatsoever.

Now, if they had been interested in that -- that was their subject.

One will assume that they were back in (Inaudible) or asking if he knew Mr. Marqusee and did Mr. Marqusee takes such a job or were you ever connected with the labor youth league or some questions in that field, there's something about labor, but the record of Mr. Deutch's hearing before the Committee is totally devoid of any references to these matters which were later introduced at trial is being the subject.

I'd submit that the Government in no way, even addressed itself a -- a point to so, I think is the dilemma in sustaining this conviction from the standpoint of ordinary due process and the right of the defendant to have proved at trial, the elements of the crime.

And not to have them changed on appeal or the subject matter changed.

The Government proved to the hilt the subject of Cornell, I mean of Albany and labor and -- and not the subject that was actually the one.

And as I say, there's no question in my mind that they did it because they were concerned with the First Amendment risks so to speak of settling right down in Cornell.

And as soon as Mr. Barenblatt came along, they would -- had less concern.

And now they're -- they're were in Cornell or at least, the link between the two, but even if it's the link between the two, nobody asked him about that.

Didn't asked about the interplay and these are all questions that -- that they did not ask.

Now, I'd like to say, I just like to say parenthetically, what I said about this is just, so the Court won't misunderstand.

What I said was that when he came into this hearing room in Washington, he walked in and I said he knew two things.

He had a subpoena on his hand and he read the paper that Richardson had named him.

And that he came before an unidentified man and then he was sworn.

I didn't say they were unidentified from then on, but if you'll look at the record, he -- he was sworn, just a small point, but I don't want the court to think that I misled them.

They were totally unidentified until he was sworn and the question commenced.

And they turned out to be the three congressmen that they were indentified in the record.

Justice Potter Stewart: How far did you tell us that Ithaca is from Albany, about 150 miles?

Mr. Henry W. Sawyer Iii: Your Honor, I want to be accurate, it's in the footnote of my brief and that therefore I will --

Justice Potter Stewart: Now, I suppose --

Mr. Henry W. Sawyer Iii: -- look again.

It's 100 and -- it's further than New York from Washington, I mean it isn't -- you can't solve it by saying Ithaca I think is in the Albany area.

I think that's quite clear that would put Philadelphia in the New York area and Washington in the Philadelphia area.

It's almost 2 -- 200 miles, Your Honor, I don't know why you can't find that.

Justice Potter Stewart: Well, I can find that.

Mr. Henry W. Sawyer Iii: But it is in the brief and -- oh, yes, sir, 150 miles to the east of the -- of Albany.

It's a separate distinct Albany area and I can see that the Committee be interested and it's like its industrial complex there, with a lot of electrical industry.

Albany is connected to Detroit, the whole area and you can read a lot of this -- a lot of this material.

In fact a lot of it that got printed by mistake in the record.

It -- it's all about this labor union infiltration there.

And had vest this Cornell thing was a frolic, even if it was interesting to the Committee because -- and the Government never covered this point.

This Committee never existed according to the record to take any other testimony, it's a different subcommittee.

Justice Felix Frankfurter: Well, Mr. Sawyer, area isn't --

Mr. Henry W. Sawyer Iii: No, sir.

Justice Felix Frankfurter: -- isn't an intrinsic absolute this term, if the functional term --

Mr. Henry W. Sawyer Iii: I quite agree.

Justice Felix Frankfurter: -- depends in area in relation to what?

Mr. Henry W. Sawyer Iii: I quite agree, Your Honor.

It's just that they prove that you see a trial, I would be the first to agree with you that there's no magic in -- in that.

But I think there's some magic in it when they prove it as a subject that then becomes a discrete thing and that it contradicts what happened at the hearing.

But I -- I didn't want to touch upon one further point which seemed to me, the Government again has not met in any sense and that is the dilemma that's created by reason of this witness' full discussion of force and violence.

That being the information that it is said the Committee's need in order to legislate and this being the distinguishing feature which permits committees to go into what would otherwise be clearly a First Amendment-protected political activity.

And it's the -- it's the Government that suggested this to this Court.

In the Watkins case, this Court said I didn't get a chance to mention this yesterday, that in the Watkins case, in the Chief Justice's opinion, he says the Government contends that the public interest at the core of investigations of the House Un-American Activities Committee is need by the Congress to be informed of efforts to overthrow the Government by force and violence.

Now, I still say that -- that if that is the distinguishing peculiarity which distinguishes the Communist Party and its treatment before the law and it must be, Your Honors, because otherwise this Court won't have the -- the insulation between that and other political movements who merely may be unpopular.

If you cut yourselves a drift from this particular distinguishing feature, I submit that it'll be difficult if not impossible to limit these restraints and encroachments on the First Amendment in favor of the investigative power, because that distinguishing feature is the one that has kept it from lapping over into other fields.

Now, why is that a dilemma in this case?

Because this witness took the Committee to this very core.

He took them where this Court has always said they were entitled to go.

Only because of that core has this Court permitted in its opinions in Barenblatt and Watkins, it said it, it said it in CIO against Douds in the sense of all of these cases.

This -- they said -- you have said, "While this Court sits in CIO against Douds, we will not permit these encroachments which we here permit as to the loyalty oath in the Communist Party to be extended, it's only because we must know, we must be informed, we must protect ourselves about the problem of force and violence."

Here, the witness throughout his hearing, he's crossed-examined on it, talks to the Committee and tells them freely about force and violence.

And if that's true, he is taking them where they have been allowed to go in balancing encroachment against the First Amendment.

And how can we then justify being -- requiring compulsory testimony which would infringe the First Amendment, when they are only preliminary.

Mr. Maroney himself said, “Oh well, this question is preliminary to the Committee gained to what interests them.”

Well, what interests them according to the Government, the Watkins case is force and violence and this witness talked again and again about force and violence.

He was crossed-examined about force and violence, exhausted his knowledge about force and violence.

The Committee was satisfied that he knew nothing about the upper (Inaudible) of the Party and what they thought about force and violence, he was talking about his group.

And it ended on my red light, sorry.

Chief Justice Earl Warren: Well, you may finish your sentence or your thought.

Mr. Henry W. Sawyer Iii: Well, my thought --

Chief Justice Earl Warren: Yes.

Mr. Henry W. Sawyer Iii: Thank you, Chief Justice.

My thought was concluding that is that he had exhausted all of the information he had on that core which has justified these investigations.