RUSSELL v. UNITED STATES

His case is here on the summary calendar for review of his conviction by the District Court here in Washington, which had been affirmed by the Court of Appeals for the District of Columbia Circuit.

Our first contention which has absolutely nothing to do with the powers of Congress is that the indictment was invalid for failure to specify the subject of inquiry.

And the question, in view of something that Mr. Silard said in the Shelton case which preceded in this case is not whether the indictment failed precisely to -- to specify a subject of inquiry, but rather whether it has to say something about the subject of inquiry because in this case, as is true in the other five contempt cases now before the Court, there was nothing stated as to the subject of inquiry.

Here, the questions upon which your petitioner was indicted are set forth in individual counts and then with respect to all of them, the indictment merely says that the questions were pertinent to the question then on under inquiry.

Nothing further, just that.

In the course of this argument, I shall use the term subject of inquiry rather than question of inquiry.

In the Cruikshank case decided as well to go as the 92 volume of your official reports, this Court established a rule which had been prefigured and foreshadowed by decisions in the lower federal courts that when a statute defines an offense in generics terms, as the contempt statute does, that an indictment setting forth an offence pursuant to that statute must dissent its -- such an act were, must dissent to particulars.

In the 85 years since this Court's decision in Cruikshank, that case has been applied repeatedly and continuously and up until just last year in the lower federal courts to invalidate indictments attempting to allege various types of crime for failure to state factual particulars instead of statutory generic terms.

And a basic reason even in this Court and in the law of federal courts for such invalidation is that where an indictment uses generic terms instead of particulars, the defendant is deprived of his right under the Sixth Amendment to be apprised with reasonable certainty of the accusation against him so that he may prepare his defense.

Now, we do not reduce from the Cruikshank case and the long line of cases that have followed it and applied it.

We do not reduce and we do not urge that any indictment is invalid if for any generic statutory term, all of the particulars are not given.

We readily admit that so broad a rule, applied in some cases wouldn't make much sense (Voice Overlap)

Justice Felix Frankfurter: Where -- where is that indictment Mr. Fanelli?

Mr. Joseph A. Fanelli: It's at about page 6 of the record Your Honor, page 2, record 2.

For example --

Justice Felix Frankfurter: Did you ask bills of the particulars?

Mr. Joseph A. Fanelli: No, we did not but I will reach that point in just about five minute, sir.

Your Honor, I may just now in its real question that the Government made an opening statement that was quite revealing at the trial.

For example, in terms of a case where the Cruikshank rule might not make any sense is a -- that at the periphery of a -- the statutory offence of perjury is the requirement, that a witness had been sworn, that an indictment which fails to state the name of the person who administered the oath is not fair for that reason.

The name of that person is a simple, easily identified fact.

It is open to the defendant's easy investigation or to being obtained from the prosecution upon a bills of particulars and the name of the person who administered the oath is the same whether the indictment states it, whether the defendant obtains it on his own investigation or whether the prosecution supplies it by interrogatory.

That essentially is the Debrow case upon which the Government relies as being applicable here but that case which makes, we don't doubt, considerable sets in the context in which it would have -- was applied, makes no sense in the context of this case.

Of course, this Court does not set to apply by rule, even the well established Cruikshank line of cases or a somewhat new and novel rule that the Government suggests here that the indictments in statutory terms are generally good.

We take it that that this case like other cases must be decided in its own context and I turn to that context.

But I note in passing that as to the point that I am now discussing namely, whether this statute is invalid, I'm sorry this indictment is invalid for failure to specify the subject of inquiry, the context of this case is not so far as I am aware significantly different for any of the other five cases now before this Court.

Justice Charles E. Whittaker: Mr. Fanelli?

Mr. Joseph A. Fanelli: Yes sir?

Justice Charles E. Whittaker: May I ask you to understand, when you say indictment is invalid, I take it is that you mean it is void?

Mr. Joseph A. Fanelli: Yes sir.

Justice Charles E. Whittaker: Is that what you mean?

Mr. Joseph A. Fanelli: Yes sir, vitiated, void, invalidated, yes sir.

Yes, Your Honor.

Justice Charles E. Whittaker: And the reason is because the petitioner (Inaudible) statement of terms, the question under or subject under inquiry.

Mr. Joseph A. Fanelli: Yes, Precisely sir.

Justice Charles E. Whittaker: You mean that is not evidentiary?

Mr. Joseph A. Fanelli: Yes sir, precisely sir.

The first important aspect of the subject -- of the context to this case is -- that in this type of contempt case and by type, Mr. Justice Frankfurter, I mean contempt of Congress' cases, the subject of inquiry is generally a very difficult thing to ascertain.

It is true that those who believe that they have ascertained it, stated with confidence but different charges with equal confidence state different subjects of inquiry in the same case.

Justice John M. Harlan: May there'd be (Inaudible)?

Mr. Joseph A. Fanelli: I think they might, yes Your Honor.

One need only compare the opinions of this Court in the Watkins and Sacher cases with the opinions of the court below in those same cases or as another example, one need only compare the majority and dissenting opinions of this Court in Deutch, but in any event in this case, the subject of inquiry was a very difficult thing to ascertain.

As to the Government's position on it, they have always been confident that the subject of inquiry has been very clear, but it's been a different subject of inquiry at every level of this case.

At trial, the Government's basic position was that the subject of inquiry was no less than House Resolution Number 5, the resolution which empowers a House Committee on un-American activities.

At the same time at trial in a feeble to prove something which the Government calls special pertinence, some dozen-and-a-half possible subjects of inquiry were introduced but they were not hooked up in any way to this petitioner or the questions asked of him.

On appeal to the Court of Appeals, the Government again was asserting of what the subject of inquiry was.

I must take that in their brief in the Court of Appeals, it was stated somewhat ambiguously, but apparently the subject of inquiry was infiltration of communism among the leadership of the United Electrical Radio and Machine Workers of America or just possibly communist policy of colonization in essential industry.

In this Court, the Government has remained confident of what was the subject of inquiry at the time the petitioner testified.

In its brief and opposition that subject of inquiry according to the Government very clear, Communist activity at Anitoch College and now on its brief on the merits, the Government at least is consistent on the confidence with which it defines the subject of inquiry, now on its brief on the merits, the subject of inquiry has become communist activity and the Dayton Yellow Springs area.

On the congressional side, there has been somewhat more confusion.

The chairman of the subcommittee made an announcement that the outset of the hearings at which petitioner appeared.

The announcement covers some six pages of the record.

It recites a number of subjects that are not claimed to have any connection with the petitioner or the questions which he was asked and the (Inaudible) began in a time that must have been some five seconds, it mentions, as the chairman mentions in his announcement, that there was some sort of controversy in the Dayton Yellow Springs area.

He doesn't state what the controversy was and he explicitly states that Committee is going to stay out of it.

Then he goes on the say that complaints and just that complaints, not from whom or what about but just complaints from the Dayton Yellow Springs area had left to the series of hearings at which your petitioner testified.

But at the trial, when we sought to ascertain what these complaints from the Dayton Yellow Springs area were about, counsel for the Government objected made the explicit statement that our questions seeking to ascertain what was the nature of these complaints was “not relevant to any issue in this case” stated that we were just on a remote fishing expedition.

The Court agreed with them and we were unable to ascertain what the complaints were about.

And Committee counsel who testified at the trial, at the behalf of the Government testified that the hearings at which petitioner testified or appeared that the subject of inquiry that there wasn't any particular subject of inquiry or in other words that the Committee was pursuing no subject less than House Resolution Number 5.

So that at the beginning of the trial by the opening statement, during the course of the trial by our attempts to ascertain what these complaints from the Yellow Springs, Dayton Yellow Springs area were about and at the end of the trial when Committee counsel, who was the Government's last witness to testify, the Government consistently took the position at trial that the subject of inquiry was no different from, no more than, no less than but was House Resolution Number 5, the so called shadow of the House on American activities.

Justice Potter Stewart: What did the District Court find that -- that the subject under inquiry was or didn't -- or wasn't there any subject?

Mr. Joseph A. Fanelli: The District Court Mr. Justice Stewart -- The District Court, the Court of Appeals, and the grand jury all found that the questions were pertinent to the subject of inquiry, but they all managed to do so without stating what it was.

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

Mr. Joseph A. Fanelli: -- Mr. Chief Justice, may it please the Court.

Just before the recess, I was covering the aspect of the context here which is namely that the subject of inquiry in this case was a very difficult thing to ascertain.

And in that connection, I have one more item to mention on the congressional side namely that the annual report of the Committee which was again introduced by the Government at the trial in this case states that the subject under inquiry when petitioner was testifying was, “Communist infiltration in basic industries throughout the United States.”

At the same time, however, the annual report goes on to say that during the course of these hearings at which petitioner testified, several witnesses from institutions of higher learning were called apparently as site excursion.

As I have already noted in answer to Mr. Justice Stewart's question, the grand jury, the trial judge, the Court of Appeals all found that the questions here were pertinent to the subject of inquiry but all managed to do so without statement of what it was.

In short Your Honors, the subject of inquiry here is so difficult to ascertain that grand jury, trial judge and Court of Appeals stood silent on the subject and now, the Government clearly discerns a subject of inquiry namely communist activity in the Dayton Yellow Springs area which it specifically disavowed at trial as not related to any issue in this case and therefore part of a fishing expedition by the defense.

The second important aspect of the context here with -- with relation to this point is that this elusive thing, this thing that is so difficult to ascertain, this subject of inquiry is essential as the Court noted in Deutch to the -- to determination and therefore also to defense on at least four central issues in a contempt of Congress case.

Three constitutional issues namely, whether the subject transgresses First Amendment limitations, a second constitutional issue as to whether the subject of inquiry found was delegated by the Congress to this Committee and then again to the subcommittee, a third constitutional issue namely the due process, one as to whether the witness was appraised of the pertinence of the questions and the non-constitutional issue, part of the statutory offense whether the questions were pertinent to the subject of inquiry.

Again, to get the real color and flavor of this, contrast a perjury case, there the ascertainment of the inquiry is not at all related to two basic issues in a perjury case, the two central issues of truth or falsity and intentional falsity or honest error.

And yet, there is still a fair and important aspect of the context here on this question and that is that the failure of the grand jury to specify in this indictment, the subject of inquiry.

Prejudice is not only the defendant's defense in violation of his rights pursuant to the Sixth Amendment, but also the performance by the trial court, by the Court of Appeals and by this Court of their Article 3 functions of decision -- judicial decision and review.

Justice John M. Harlan: You're trying to raise the questions (Inaudible)

Mr. Joseph A. Fanelli: We don't argue that he did, Your Honor.

Justice John M. Harlan: (Inaudible) he did?

Mr. Joseph A. Fanelli: That's right.

We're not arguing here that --

Justice John M. Harlan: (Inaudible)

Mr. Joseph A. Fanelli: Well, when -- we're making no point of it, Your Honor --

Justice John M. Harlan: That means to your witness?

Mr. Joseph A. Fanelli: Well, it doesn't necessarily mean that he -- that he didn't.

We're willing to assume for the purpose of this case that he did not.

I don't want a prejudice other cases where someone maybe arguing differently on -- on the same set of facts or similar set of facts.

So far as the petitioner is concerned, it is the failure of the grand jury to specify the subject of inquiry in this indictment that makes it possible for the prosecution to convict petitioner on House Resolution Number 5 as the subject of inquiry to get the conviction affirmed on another subject of inquiry and to argue here for affirmance on a third subject of inquiry that was disavowed as -- at trial as unrelated to any of the issues in part of a fishing expedition.

The prosecution now says that we should have asked for a bill of particulars, but in answer to that suggestion, we say first, that it is the only grand jury's specification of the subject under inquiry that effectively confines the prosecution to one due process channel of prosecution for one charged offense.

Second, if we had asked for a bill of particulars instead of relying on the Government's position throughout the trial and in its opening statement, I suppose that the Government would now be arguing as it doesn't show them that it's not bound by opening statements and by bill of particulars.

But furthermore fundamentally we say, the persecution was clear enough on what it thought the subject of inquiry was at trial.

Our trouble is not that the prosecution failed to reveal its hand on the subject of inquiry that essential part of one element of this offense rather what we sought it from is that in deprivation of petitioner's rights both under the Sixth Amendment and under the Due Process Clause and here, I have in my mind such cases as Giordenello, Stirone, Cadiacos, namely that you can't be convicted of one offence and have it affirmed on another, that in deprivation of his rights, the Government has revealed a different hand as to the subject of inquiry at every adjudicatory level of this case, as to the prejudice to this Court, to the Court of Appeals and to the trial court resulting from the failure of the indictment to specify the subject of inquiry.

This Court in Watkins had verdict to the troubles on review arising from the vagueness of House Resolution Number 5, but -- yes sir?

Justice Charles E. Whittaker: (Inaudible)

Mr. Joseph A. Fanelli: Oh, we also make that argument.

But I'm trying to point out the reasons, Your Honor, why this Court should hold that an indictment in this type of case should give the nature of the subject of the inquiry.

We also make an another argument independently that the proof of subject under inquiry, that is the proof of a subject -- that is a permissible subject of inquiry failed in this case.

Justice Charles E. Whittaker: (Inaudible) indictment (Inaudible) to establish is adequate to (Inaudible) in presence of deliberate (Inaudible)

Mr. Joseph A. Fanelli: Your Honor, in answer to that question, I would like to refer you to the cases -- no, it is not the general law in our view, if I may differ with Your Honor.

But I would like to refer you to the cases we have collected, beginning at page 41 of our brief and particularly, the cases cited in footnote 27 of page 43.

Every one of those cases will be contrary to the suggested statement you've just made, Your Honor.

Justice Tom C. Clark: You say foot -- footnote on page 40, what?

Mr. Joseph A. Fanelli: Footnote 27 on 43, Mr. Justice Black.

But here, the situation is much worse than the difficulties of Court faced in Watkins because the indictment does not specify the subject of inquiry, this Court can be almost certain but not absolutely certain that the grand jury found House Resolution Number 5 as the subject of inquiry from which it found probable cause for pertinence because that was the Government's position at that time in the pre-Watkins phase, that is in the days before this Court's decision in Watkins.

That was the Government's uniform and basic position in this case and in every other contempt to Congress case.

This Court can be almost certain, but not absolutely certain that the trial judge also convicted on the basis of House Resolution Number 5, which under the Watkins case is impermissible subject of inquiry, being too vague and third, this Court can be almost certain but not absolutely certain that the Court of Appeals impermissibly in view of Cardiaco and Stirone and etcetera affirmed that conviction on the basis of still a -- another subject of inquiry although we don't know what it was because by that time, this Court had decided the Watkins case.

A fourth and important aspect of this context is that to approve of this indictment is to sanction a most extraordinary violation of the well-settled rule against amendments of indictments by trial court or by prosecutor.

Here, the grand jury left the blank at the very center of this case that settle upon which at least those four important questions depend which the Government, the trial judge and the Court of Appeals could fill in at will and did.

And fifth and lastly and maybe most importantly is that once the grand jury has done its duty and ascertained a subject of inquiry on the basis of which it confined the probable cause to charge an offence pursuant to the contempt statute which of course is the grand jury's function and we don't understand that the Government denies that.

The subject of inquiry is stated in the indictment simply without difficulty and in just a few words as Mr. Terris said to in the course of the Shelton case argument, its communist activity and infiltration of news media or here, communist activity in the Dayton Yellow Springs area.

It is no difficulty at all for the grand jury or the Government to state it once the grand jury has performed its function and found it.

Indeed, that is just the case of Lorch.

Lorch testified at the same hearings of which petitioner testified.

He was first indicted by precisely the same sort of amendment as here, but the trial court out in the Southern District of Ohio dismissed that indictment for failure to specify the subject of inquiry.

The Government went back to the grand jury and got an indictment which states that the subject of inquiry at the time was communist activities in the Dayton Yellow Springs area.

And if the subject of inquiry stated in just a few words, the defendant can prepare his arguments in defense and the Courts can intelligently decide on such issues has is the subject of inquiry sufficiently definite, is it within the Committee's delegated powers, is it one which outweighs the concomitant First Amendment transgressions, were the questions pertinent to it?

Was the witness had far as of that pertinence?

In fine, the Government insists on indictments which do not specify the subject of inquiry although there is every reason in affording the defense an opportunity for defense and in affor -- and affording the Courts an opportunity for intelligent review to insist on that specification and no reason at all for not specifying it except that prosecution can be obtained and affirmed more readily because of the very prejudice to the -- to defense and to the Courts in their Article III duty which results from non-specification.

In the Sinclair case, the Court stated that the Government must plead pertinence in a contempt of Congress case and surely in view of the considerations we have advanced this Court must have meant more than the empty ritual of having the Assistant United States Attorney who's accredited to the grand jury read the statute and see that it's quoted accurately in the indictment.

The Government relies heavily on the Markham case.

This was a perjury case.

The Government says that it holds -- that in a perjury case, you don't have to state the inquiry.

And the Government says further the perjury case is just like contempt of Congress cases.

We say first that in the Markham case, the opinion explicitly states and the record shows that the inquiry in the Markham case was, as this Court stated, manifest on the face of the indictment.

Moreover, as we've already noted, in a contempt of Congress case, unlike a perjury case, knowledge of the subject of inquiry is the touchstone to defense and judicial solution on practically all of the important issues in the case.

We might note further that per --

Chief Justice Earl Warren: Your time is up but I'm going to give you five minutes to respond if you -- if you should wish it Mr. Fanelli and the Government may have five minutes. (Voice Overlap)

Mr. Joseph A. Fanelli: Thank you very much.

Justice Felix Frankfurter: Mr. Fanelli may not have the time.

If I may miss -- the comment you were going to make about the bill of blank -- about the bill of particulars.

Mr. Joseph A. Fanelli: I -- I did refer to that in the course of my argument but when I get up again, I'd be glad -- glad to refer to it again, Mr. Justice unless (Voice Overlap)

Justice Felix Frankfurter: I guess what I know whether -- may I ask this question and you can answer later?

Would no bill of particulars cure, assuming you're right about the defect, is this is an incurable defect?

Mr. Joseph A. Fanelli: Well, I don't see how it can cure --

Justice Felix Frankfurter: Well, I just -- just want to know what --

Mr. Joseph A. Fanelli: In our case --

Justice Felix Frankfurter: Yes, in -- in this case.

Mr. Joseph A. Fanelli: Well, I don't see how a bill of particulars would have been any different from the opening statement, Your Honor and also, I don't think it would cure it in any case because --

Justice Felix Frankfurter: I don't know if --

Mr. Joseph A. Fanelli: -- we're entitled, Your Honor, even if they haven't made an opening statement, we're entitled to be tried on what the grand jury found as this offense, not on what the Assistant United States attorney thinks it is and therefore, his statement to us doesn't supply that the effect on the indictment --

Justice Felix Frankfurter: But whatever difference there maybe between an opening statement, I suppose there were some difference between talk and the deliberateness of a bill of particular, but waiving that you say this is -- this was an incurable inadequacy --

Mr. Joseph A. Fanelli: Yes, sir.

Justice Felix Frankfurter: -- falling short of the requirement of the constitutional provision?

Mr. Joseph A. Fanelli: You have stated our contention precisely.

Thank you.

Chief Justice Earl Warren: Mr. Maroney.

Argument of Kevin T. Maroney

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

It is our view that the indictments in each of these cases which are for purposes of the argument just made substantially identical conform to the requirements of Rule 7 (c) of the Federal Rules of Criminal Procedure in that they are plain, concise and definite written statements of the essential allegations of the offense.

As Justice Whittaker suggested, it is well-established that indictments in the statutory language are ordinarily sufficient.

That was the rule enunciated by this Court in the Debrow case.

It was also repeated in the Markham case, which is particularly apposite here because the Markham case involved a determination by the Court of the sufficiency of an averment in the indictment that the alleged false statement, that was perjury case, the alleged false statement was material to a question on an -- then under inquiry by the Veterans Administration.

Justice Hugo L. Black: What case is that?

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

Justice Hugo L. Black: Is that cited in your brief?

Mr. Kevin T. Maroney: Markham.

Yes, sir.

It was cited in -- in our Shelton brief.

Justice Hugo L. Black: The Shelton brief?

Mr. Kevin T. Maroney: Yes, sir.

This -- this argument is made in Shelton and since this was the first brief or the first case set for argument, we have developed this point primarily in the Shelton brief and refer to it and incorporated in the -- in the other briefs where the question is raised.

It's referred to on page --

Chief Justice Earl Warren: I suggest Mr. Maroney that you don't force us to -- to read two or three or more sets of briefs in order to know what your issues are in the -- in the case.

I think if you -- if you at least give us a -- fair citations of your -- of your point on the brief that would be adequate and if you want to refer us further to other briefs, but don't -- don't leave us in a point where we position -- where we read this brief and we can't -- can't get your case from it unless we -- we go back to some other case that -- that isn't --

Mr. Kevin T. Maroney: Well, Your Honor --

Chief Justice Earl Warren: -- consistent with our rules, I think.

Mr. Kevin T. Maroney: Your Honor it is argued our essential position is set forth in our brief in this case at pages 38 and 39 in which we incorporate the developed argument as set forth in the Shelton brief.

Chief Justice Earl Warren: But he asked you -- Justice Black asked you if this case was cited in your brief -- in this brief and you said, “No, it was cited in the Shelton brief,” but if you rely on it this case, why isn't cited here?

Mr. Kevin T. Maroney: Well, we were -- we were trying to -- to make it for the convenience of the Court so that we wouldn't be unnecessarily repeating legal arguments in each brief which were common to several cases.

And our -- we tried to -- to -- to develop a -- a master brief so called since these cases were all set together and to try to eliminate, insofar as possible, unnecessary duplicate reading as to what our position is.

At any rate, Your Honor, the Markham case which -- which we do refer to in -- at -- in the Shelton brief at page 80, the Court there held that the mere averment that the false statement was material to the matter under inquiry by the Veterans Administration was sufficient.

The averment of materiality in a perjury case is directly analogous it seems to us, to the averment of subject matter and pertinency in a contempt of Congress case.

And it is our position that in -- in light of the established principles of these cases, the allegation that the -- there was a subject under inquiry and that the questions refused of answer were pertinent to those -- to that inquiry is a sufficient averment.

What the subject under inquiry was -- is a matter of proof.

The -- the circumstances which demonstrate the pertinency of the particular questions is that -- to the subject under inquiry is a matter of proof.

Now, we think it also well-established that -- as established in the Markham case and in the Debrow case that the -- the test for the sufficiency of an indictment is whether or not it sufficiently appraises as a defense of the specific charge for which he is to be tried and enables him to prepare a defense and whether it is sufficiently precise to enable to him to plead it in bar of a subsequent prosecution for the same offense and we submit the indictments in these cases, particularly in this case meets that test.

Now, the contention is made that because the subject under inquiry is a nebulously, that -- in view of that particular of circumstance in this type of case, the Court should depart from the general principle as to the sufficiency of indictments and require, especially as concerns contempt of Congress cases that the Government or that the grand jury set fourth in the indictment what the subject under inquiry was.

On the other hand, we think that when the -- when a defendant is appraised as he was in this indictment and in the other indictments of the subcommittee or the Committee concerning which he is alleged to have appeared and to have refused to answer questions, when the specific questions are set forth in the indictment as they are all of these cases, together with the allegations that they were pertinent to the subject then under inquiry that he is in a position to prepare his defense.

The record here -- the -- the hearings of the Committee which are available to him in connection with the preparation of -- for trial, in this particular case leave no room for doubt so as to confuse a defendant with what he has to meet in a -- in the criminal trial.

The -- this record shows that the Committee or that -- the Committee which conducted the hearings in Dayton as distinguished from a subsequent Committee which followed up on those hearings here in Washington and that which the petitioner appeared.

The -- the Committee in Dayton announced at the beginning of the hearings that it was going to investigate communist activities generally in the Dayton and Yellow Springs area.

Now, the opening statement does refer to a lot of things.

It refers to legislation.

It refers to the communist conspiracy and the international situation and so forth, but I don't think there can be any doubt from an overall reading of that as to what the Committee intended to do at these hearings in Dayton that is to investigate communist activities in that area, Dayton and Yellow Springs area.

Now, if there where any doubt from the opening statement, the hearings themselves and the questions which were put to the particular witnesses demonstrate beyond all question that the Committee's interest and that the Committee's area of inquiry was communist activities in the Dayton, Yellow Springs area.

They -- they interrogated the witness Strunk concerning his knowledge of the organizational structure in the Dayton area, his knowledge of certain leaders of the Communist Party in that area, his knowledge of Communist Party infiltration in -- in that particular area.

There were other witnesses called who testified as to communist activities in the Yellow Springs area, as to the existence of a young communist leagues cell at Antioch College which is in Yellow Springs, as to the petitioner's membership in the Communist Party.

All those things and only that type of thing were developed throughout the hearings conducted in Dayton.

Now, if that weren't enough, and I think that this Court clearly, in the Watkins case and in the Barenblatt cases, said that the subject done under inquiry can be determined from the statement of the chairman at the outset of the hearings, from the resolution of the Committee here concededly as the Court has held in the Watkins case, the resolution itself does not add materially to a determination of what the subject under inquiry was.

What the opening statement does and properly can, the interrogation of the witnesses at the hearings do in this case unquestionably, establish that this Committee was inquiring into communist activities generally in the Dayton and Yellow Springs area and in conducting such a general investigation, it necessarily, as any such investigation would, encompassed within such a general investigation certain, more specialized, more particularized subjects, infiltration of the Communist Party in to the UE the United Electrical Workers' union.

Unknown Speaker: Dayton?

Mr. Kevin T. Maroney: Sir?

Unknown Speaker: In Dayton?

Mr. Kevin T. Maroney: In the Dayton and area, yes sir and several leaders of the UE were called and were asked to testify concerning certain strike activities.

I think particularly concerning a Univis -- a strike at the Univis Lens Corporation which is in that area at which the Committee tried to develop to what extent the Communist Party and its leaders had been sent in during that strike to, you sir so to speak, the functions of the union in the conduct of the strike.

Now, as I say, if that were not enough, when the witness -- this witness himself, the petitioner came before the Committee, he was not left floundering at all for what the Committee was trying to find out from him when he first -- he answered preliminary questions, and these statements which I'll try to paraphrase begin in the record of pages 123.

He has -- he was -- he asked preliminary questions as to his attendance at Antioch as to his working in Yellow Springs during the critical time period, his working in Antioch and his residence there.

He -- he was told by both Committee counsel and by the members of the Committee, and beginning down at the bottom of 123, they made reference to two witnesses who would appear the date of the hearings, John O'Brien and BB O'Brien, husband and wife who had testified as to their prior membership in the Communist Party and who had testified as to the existence of a young communist league cell at Antioch College in about 1942.

Their testimony also demonstrated that the leader and the organizer of this young communist league group at Antioch was Herbert Reed, who was a Communist Party functionary from Dayton, who had no connection with Antioch College as such.

But that he had come in to the -- to the campus and had organized this YCL group.

They also referred the witness to testimony that had been given before the -- the Committee at the Dayton hearings, testimony of Professor Robert Matchan who was on the faculty at Antioch and which indicated to the Committee's satisfaction the existence of a Communist Party group in 1945 or 1946.

And they -- they said after having made those points to the petitioner, they said on page 126 of the record at the -- at the top, having referred to the YCL group in 1942 at Antioch and the 1945 Communist Party Cell at which certain members of the faculty or of which certain members of the faculty were members.

They say, now there's an important link in between the actual organizers; Communist Party organizers in 1945 were not known.

You may be in a position to supply that information to the Committee.

We know what it was in 1942.

We are asking you now to supply the missing link to that testimony.

The -- the -- the other evidence that Committee had, had already demonstrated that he -- he had been or at least he was identified as having been a member of the Communist Party at about this time, he's working in this area and certainly there was the likelihood that he could furnish for the committee.

If he would -- whatever information he had, which might shed -- shed information on the three-year period of Communist activities between Dayton and Yellow Springs and Antioch of which the Committee had a void.

He was told that he -- he was told I think very clearly, that is the information we're trying to get from you.

This is the reason why we think you can give it to us.

Will you answer this question, or several questions and his reply was that he refused on the basis of the First Amendment.

Now we think no circumstances that there is just no question at all that this petitioner in preparing his case for trial on the criminal contempt charge certainly was in a position to properly prepare his defense and to make whatever defenses he had available to him, and that being the case we submit that this indictment meets quite far the test for the sufficiency of an indictment.

Justice Potter Stewart: How far is the Yellow Springs from Dayton, 20 miles?

Mr. Kevin T. Maroney: They're 20 miles apart, yes sir.

The record -- the record contains that information and I think the petitioner -- this petitioner is during the course of his testimony before the Committee, they asked him if he -- he went back and forth, and he said they were about 20 miles apart and that he did go back and forth during this time and Antioch -- Antioch College is in Yellow Springs.

Now, the -- another point which is -- which was not made orally, but which has been extensively briefed in this case, and which is also raised in several of the other cases which are to be heard after this concerns motions of the petitioners in a number of these cases including this case made before trial to dismiss the indictments, to dismiss this indictment, I'll confine it to this case, motion to dismiss this indictment or in the alternative for a hearing on the ground that more than -- that 13 or more of the indicting grand jurors were employees of the Federal or District Government, and therefore, according to affidavits submitted in support of the motions, affidavits which are principally I might say, based on the opinions of their counsel and in this case, on a preliminary survey resulting in opinions expressed by Professors Jahoda and Cooke, opinions to the effect that a government employee in 1954 necessarily would have been so intimidated and so fearful as a result of the Government Loyalty Program that he ought to be held as a matter of law to be a biased grand juror in this kind of case.

Now, basically our primary contention is that the supporting affidavits in these cases which were submitted in support of the motion to dismiss, and in the alternative for a motion, for a preliminary hearing on that question do not contain any specific facts as to actual bias by these particular grand jurors, and we think that since that is so at the under the -- under the case law and under the -- what appears to us to be the prevailing rule with respect to challenges to grand juries that these petitioners -- this petitioner was not entitled either to a hearing, certainly was not entitled to a dismiss along the indictment.

Justice Charles E. Whittaker: (Inaudible)

Mr. Kevin T. Maroney: No sir.

There originally was a statute or a provision which disqualified government employees from service as jurors in the District of Columbia, and because of the difficultly of getting grand jury -- jury panels, Congress passed a statute in I think it was 1908 or thereabouts, which was the subject of this Court's decision in the case of Wood v. United States which is cited also in our Shelton brief, it's 299 U.S. 123.

In -- in that case, this Court held that that statute authorizing government employees to sit as jurors in criminal cases in the District of Columbia was constitutional.

The question of government employees sitting in criminal -- as jurors in criminal cases in the District also was considered by this Court in the Frazier case, which is also cited in the brief.

The Frazier case involved a -- a prosecution of an individual for violation of the narcotics laws I believe.

The defendant challenged the impartiality as a -- as a matter of implied bias of a government employee rendering a fair and impartial verdict in a case where the Government, where his employer was the -- was the prosecutor, was the party to the case.

And this Court held that the fact of government employment did not render a government employee impartial as a matter of law, as a matter of showing in any particular case with respect to any particular juror that he -- he was in fact intimidated by virtue of his employment could be shown on voir dire examination and of course would be a proper question for voir dire examination.

But in the absence of such is showing as to actual bias or fear on the part of the particular juror, the Court would not impute from the circumstances of employment alone that he was not an impartial jury.

Justice Charles E. Whittaker: (Inaudible)

Mr. Kevin T. Maroney: No sir, the -- that's -- that's another important distinction we think applies here.

There is no prevision that we know of in the federal system for voir dire examination in the usual sense as to determine bias with respect to grand jurors.

The rules -- Rule 6 of the federal rules criminal procedure do provide for challenges to the grand jury or to any grand jury on the basis that the grand jury lacks legal quali -- the legal qualifications, that is that some of the grand jurors don't meet the residence requirements or the age requirements and so forth.

Justice Charles E. Whittaker: (Inaudible)

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

Justice Charles E. Whittaker: (Inaudible)

Mr. Kevin T. Maroney: That's correct sir, or that a particular grand juror may not be legally qualified.

Justice Charles E. Whittaker: (Inaudible)

Mr. Kevin T. Maroney: That's right sir, or at least it might -- it might of showing that grand juror was not legally qualified, I'm -- I'm not sure, would necessarily disqualify the entire panel, but there is a provision at any rate under the rule for a challenge to the grand jury on the basis of legal qualifications only.

There is no provision for a challenge to a grand jury on the basis of bias.

Now, we think that that rule also carries over following the return of an indictment, so that you can challenge or at least embark that -- we think this much is clear anyway that what they would like to do, and that is to embark on a fishing expedition trying to probe the grand jury that returned an indictment, trying to probe its motives and its fears, and its biases hoping that something will turn up so that they can then use that as a basis for challenge.

We think that that certainly is not prohibited and has no support whatever in any of the case law in the federal system or in the State system.

Now, certain other cases, which we cited in our brief, do hold and we think properly so, that where a defendant can show that a particular grand juror or group of grand jurors were biased as a result of corruption or malice that the Court will -- and upon such as showing, upon an actual, factual demonstration that that was the case that the Court would in the -- certainly in the exercise of its powers to supervise criminal justice will set aside such an indictment (Voice Overlap)

Chief Justice Earl Warren: Suppose the -- suppose the grand jurors that are complained off here were relatives of members of the Committee, would you have to -- would you have to prove those actual bias in their minds from something they had said or done before the validity of the indictment that they challenged?

Mr. Kevin T. Maroney: If it were just one grand juror?

Chief Justice Earl Warren: No I said if these were --

Mr. Kevin T. Maroney: All 13 of these were relatives?

Chief Justice Earl Warren: Yes, yes.

Mr. Kevin T. Maroney: Oh I think, probably that would be a sufficient showing of -- of actual bias which -- for example I think some of the cases have held that a showing of financial interest on the part of a -- of a grand juror.

Chief Justice Earl Warren: But I -- I realize that that would be an actual -- actual bias, but suppose their employees of the Congress?

Mr. Kevin T. Maroney: Well of course, in that kind of case Your Honor.

Chief Justice Earl Warren: Would they -- would you have to show them that they were -- they had actual bias if it -- if it was demonstrated that they were employees of the Congress?

Mr. Kevin T. Maroney: Well, -- well the Court will, depending on what the underlying circumstances are, find actual bias by virtue of the circumstances of a case, for example.

Chief Justice Earl Warren: (Voice Overlap) the relationship to the prosecution, isn't that -- isn't that relevant?

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

For example in the Frazier case, which -- we mentioned earlier, several of the -- this is the petit jury now in the Frazier case, and the Court held that the Government employees were not -- should not be held to be biased by virtue of the fact that they're Government employees alone.

Two of the particular Government employees were later shown to have been employed by the Treasury Department which was the -- the very department which had investigated this offense -- the Narcotics Bureau or the Treasury Department.

The Court pointed out in Frazier that neither of these employees of the Treasury Department were employed in the Narcotics Bureau.

They were employed in some other -- I think if they were employed in the Narcotics Bureau then it might be said that that particular juror should be held to be sufficiently close to an interested party that he should be disqualified.

Chief Justice Earl Warren: But suppose they were not employees of the Congress, but were employees of some department that was under programs that were initiated by and investigated by and -- and supervised by Congress.

Mr. Kevin T. Maroney: Well, to a certain extent I suppose that applies to all government employees.

Chief Justice Earl Warren: That was I -- that was I was getting at.

Mr. Kevin T. Maroney: And of course, we rely on this Court's decision in the Dennis Case, which was later Case of -- of Frazier, and the Dennis Case involved contempt of Congress Case, involved an individual who like -- this petitioner was charged with having to refuse to testify concerning Communist Party activities.

There, it was the petit jury.

The petit jury which was indeed determined the guilt or innocence of the particular defendant and in this Court in the Dennis case held that fact and even in view of the newly -- of the then newly existing loyalty order that the -- the -- there shouldn't be imputed two government employees such as a bias as to make them disqualified.

Chief Justice Earl Warren: Well, were those grand juries or trial juries?

Mr. Kevin T. Maroney: Petit juries Your Honor and we think that is on a very important distinction.

Chief Justice Earl Warren: There you can have -- there you can have a voir dire and you can -- you can test a man's mind.

Mr. Kevin T. Maroney: That's -- well --

Chief Justice Earl Warren: You can find out what he's got in his mind, but here you cannot do it.

Mr. Kevin T. Maroney: That's true Your Honor, but that is because of the traditional view of the Court with respect to grand jury proceedings.

The grand jury, unlike the petit Jury of course, is strictly an accusatory body.

Certainly, traditionally, there is no impediment to a grand juror, or several grand jurors taking part in proceedings of which they may have personal knowledge for example.

In a small community, it may -- it may happen from time-to-time, whereas presumably somebody like that might be disqualified from a petit jury, but we think that the distinction that the Courts -- that the actual distinction between the function of a grand jury and the function of a petit Jury makes it far less imperative that the Court allow an inquiry of voir dire based on such general assumptions as we have here, such general opinions has have been shown in these affidavits supporting the motions and exploratory inquiry into the fears or the motives of grand jurors.

Justice Felix Frankfurter: Mr. Maroney, have we got any figures -- Government got figures to indicate the total potential jury qualified versus in the district and the total number of government employees that could be taken out of that pool?

Mr. Kevin T. Maroney: I -- we can certainly get them Your Honor.

I -- I think that it would be clear to all of us that it would certainly be 50%.

Justice Felix Frankfurter: If it is -- if it's -- if it's very easy to get, would you mind?

Mr. Kevin T. Maroney: Certainly wouldn't Your Honor.

Justice Felix Frankfurter: I'm not making -- there's no (Inaudible), I'm just curious.

Mr. Kevin T. Maroney: Oh, no, no, no. No, but I think as Your Honor knows that it was that problem--

Justice Felix Frankfurter: I know (Voice Overlap)

Mr. Kevin T. Maroney: -- that arose -- that gave rise to the statute which -- which didn't make federal employees, competent juries in the District of Columbia.

Justice Felix Frankfurter: But what you're getting to a greatest social magnet for people who come here because it's such a wonderfully interesting place, with all the wonderful things going on, cultural center, 103 embassies, etcetera, etcetera, lots of leisured bias people now make it their home.

Mr. Kevin T. Maroney: So that -- we think that, certainly on -- on the showing that they may, and the lack of any specific facts, the lack of even of any allegations of actual bias on the part of anyone of the grand juror, that's the indicting grand jurors, that they were not entitled to the relief request, in this case and in the other cases where that question is raised.

Chief Justice Earl Warren: Mr. Maroney, may I ask you just one other question on that -- on -- on that bias.

Assume, let's just assume for the sake of argument that these 15 jurors who work for the Government were frightened then would be -- would be afraid of their jobs.

For instance if they fail to indict at first in this -- in this area, let's just assume that they were, how could a man under your theory ever attack that and ever get it -- ever get it grand jury that would not be composed of people who were guided by those fears?

Mr. Kevin T. Maroney: Well, he either has to have some kind of evidence from which he can make a preliminary showing to that effect or he can't make the showing.

The law --

Chief Justice Earl Warren: But you wouldn't (Voice Overlap) -- you wouldn't let him have a hearing to determine -- to determine that.

Mr. Kevin T. Maroney: Our -- our view is, when we think that it's -- it's clear that the law makes no provision for interrogation of grand jurors on voir dire and in the cases which do recognize that indictments will be invalidated by a virtue of corrupt action or a malicious action on the part of grand jurors are dependant as most situation such as that upon the defendant being in a position to come forward and make a demonstration that that was the case.

There's no --

Chief Justice Earl Warren: Well, I suppose here -- I suppose here their showing was that -- that these men do work for the Government, that there are these loyalty programs, that there are certain practices that -- that government employees are discharged at times on -- on confidential information that is not available to them and that they have no way of defending themselves on their jobs.

And -- and so therefore, they say these people by -- by operation of law are biased and they want to show -- they want to show through -- through hearing where they would examine the jurors that fear does possess them.

Mr. Kevin T. Maroney: Well that's -- well, that's what they wanted to do Your Honor.

Chief Justice Earl Warren: What else could they do, would they have -- would the man have to say -- would I tell somebody in the defense that I'm afraid and that's the reason I indicted your -- voted to indict your client?

Mr. Kevin T. Maroney: Your Honor that's -- we think that's the only remedy they have.

The law does not give them any other remedy other -- because of the nature of the grand jury.

They have a protection at trial, it isn't as if they're left to the wolves.

They have a trial coming up.

They have a trial coming up before petit jurors.

At that time, they will be allowed to make a detailed exploration into the actual bias of particular petit jurors and after all, it is the petit jury that is going to render the verdict as to whether there is guilt or innocence.

The grand jury has not done that.

It doesn't -- that's not the function of the grand jury.

All the Grand Jury says is, “This man will be put to trial”, that's all.

Chief Justice Earl Warren: Yeah, but in this kind of a case, there is nothing -- there is nothing open to him to defend on in your -- in your view, if -- if he actually refused to answer the questions, that's -- that's all you concede that he has a right to show at the trial.

Mr. Kevin T. Maroney: Well I am -- he has his (Inaudible) defenses that he can -- I mean like any other defenses that he can prove they've got the wrong man.

He can prove an alibi that it was somebody else who refused to answer these questions.

I mean undoubtedly, if he -- if he was there -- if he was -- and if he did refuse --

Chief Justice Earl Warren: But the only elements of the crime were -- where that he failed to answer the questions and it seems to me that its -- there's no one he can cross-examine on the subject and if the -- if the grand jury was biased against him, he's -- he's guilty when he -- when -- when he goes into Court.

Mr. Kevin T. Maroney: Well, not Your Honor --

Chief Justice Earl Warren: On this kind of a case, it's different (Voice Overlap)

Mr. Kevin T. Maroney: Not Your Honor.

Chief Justice Earl Warren: -- case is different (Voice Overlap)

Mr. Kevin T. Maroney: Not if he isn't guilty Your Honor.

Chief Justice Earl Warren: -- felony case or a -- or a murder case, but here what is open to him other than the fact that he wasn't the man who's there.

Mr. Kevin T. Maroney: Well, he has a jury trial.

Chief Justice Earl Warren: Yeah, but what -- what's -- according to your theory he's not -- he's not able to prove anything.

Mr. Kevin T. Maroney: Well, I mean it may well be and I think it frequently is in these cases that the issues are fairly -- and certainly the factual issues of fairly cutting drive, the defendant who subpoenaed, he appeared he refused to answer questions.

The only thing left really, as a practical matter, is whether or not he made legal objections which he's entitled to make.

If he did those things and if he didn't make proper legal objections, he has violated the statute.

He has the same defense that anybody else has in any kind of a criminal case.

Thank you Your Honor.

Chief Justice Earl Warren: Mr. Fanelli.

Rebuttal of Joseph A. Fanelli

Mr. Joseph A. Fanelli: Mr. Chief Justice sir first, I want to thank you for the graciousness of permitting me the extra time, I think that's the first time that's ever happened to me in my life.

I'd like to state while I have the time and while it hasn't run out that we argue not only the invalidity of this indictment for the failure to specify the subject under inquiry, not only the subject that Mr. Justice Whittaker referred to, that is failure to prove a permissible subject of inquiry, not only the subject that my brother counsel touched on in the latter part of his argument that the indictment was invalid for an additional reason, but we also argue that the defendant was called for the purpose of punishing him for contempt rather than on legislative aid, on the particular facts of this case.

Also, under the Yates Case that he committed one indict -- one offense which was a committed one -- one offense for -- unlike Yates, not the offense for which he was indicted and that therefore, this conviction must be reversed for that reason and four reversible in prejudicial errors that occurred at trial in a particular aspect of this case.

Now, I'd like to take a -- and we think they're all good, but I just don't have the time to argue them all.

I would like to spend just one moment on the specification of subject of inquiry in the indictment and then touch for a few moments on the grand jury point.

That is the business of government employees on it.

I'm afraid that my brother counsel has pretty well-demonstrated what has always been my feeling about this subject of inquiry that once you think you have it, you're very confident about it.

I will repeat that the subject of inquiry now claimed was specifically disavowed at trial and I might point out in addition that as to the Univis Lens -- Univis Lens strike, the United Electrical and Radio Workers which occupied a lot of time in this hearing have no relation at all to the questions ask to the petitioner, and that the only statement as to petitioner was, that he was not involved in that strike.

I want to say in the end that as to Markham, as I've stated, the Court found the inquiry manifest on the face of the indictment and record supports the Court on that.

Justice Felix Frankfurter: I suppose Mr. Fanelli, your argument and (Inaudible) is that if indictment had specified what the subject that the inquiry was, the Government would be nailed down to that.

Mr. Joseph A. Fanelli: Yes sir, that's --

Justice Felix Frankfurter: But --

Mr. Joseph A. Fanelli: -- a very important part of our argument.

Justice Felix Frankfurter: I suggest the same -- the same restriction, the same confinement for maneuvering on part of the Government is served by the bill of particulars.

Mr. Joseph A. Fanelli: I don't think so Your Honor because --

Justice Felix Frankfurter: I mean if you --

Mr. Joseph A. Fanelli: No.

Justice Felix Frankfurter: -- if you will list it, if you ask for bill of particulars, you may say that subject -- the scope of the inquiries asked him so the bill of particulars hold him to that, doesn't it?

Mr. Joseph A. Fanelli: Well, they say no, we say yes, but Your Honor --

Justice Felix Frankfurter: They say no?

Mr. Joseph A. Fanelli: Yes, they do in the Shelton case.

Justice Felix Frankfurter: (Voice Overlap) bill of particulars.

Mr. Joseph A. Fanelli: Yes, so they argue, but I say this Mr. Justice, that it isn't just a question of nailing down the prosecution.

It's the question of nailing down the prosecution to the crime which the grand jury has charged and this is not taken care of by bill of particulars.

Justice Felix Frankfurter: No.

In other words the -- the specificity doesn't come from the grand jury, but so far as any fairness or unfairness, waving the question whether a grand -- an indictment can be amended. I appreciate that argument, but on the question of fairness, the bill of particulars has the same purpose.

Mr. Joseph A. Fanelli: In terms of not -- not having the Government jump around them, but it doesn't --

Justice Felix Frankfurter: I'm -- I'm giving you notice.

I'm giving you notice.

Mr. Joseph A. Fanelli: That -- that -- that may be true also, but it doesn't take care of a good part of our argument Mr. Justice because it doesn't nail down the Court of Appeals to what the grand jury said, and if I may say so with all the --

Justice Felix Frankfurter: In the -- in the Court of Appeals, in the interest of time of I'm interrupting you -- in the Court of Appeals, say although the bill of particulars bound into this.

Although, the Government says the bill of particulars restricts are put to this, the Court of Appeals can go beyond that or differ from it?

Mr. Joseph A. Fanelli: Well, it apparently did in Shelton.

It departed -- well, I don't know what it did, to tell you the truth I mean because I didn't state it.

That's why -- this is the -- this is the prejudice to courts, that is also not taken care of by bill of particulars on -- I see a red light here on.

Chief Justice Earl Warren: You state your other -- other quite quickly briefly because I wanted to hear it.

Mr. Joseph A. Fanelli: I did -- I did want to make one other comment if I may, about as this -- this point namely that the Government has not suggested one single reason from their point of view as to why this indictment should not specify the subject of inquiry.

And it was until the most recent era of cong -- congressional contempt cases, it was traditional to state and the cases are cited in our brief, to state the subject of inquiry in contempt of Congress cases and they state no reason now for departing from that traditional approach in a more dragnet procedure of not stating it and if there were not the constitutional issues involved, this case boils down, if there were no constitutional issues related to this point, to this Court's supervisory powers over the federal courts and whether it's going to permit a conviction obtained by procedures so unfair stemming from this failure of specification to spare.

Now, to come to the grand jury point with Your Honor's permission for a moment, I -- if I understand the Government's argument correctly, the Government admits that a grand juror like a petit jury must be impartial.

As the Chief Justice drew from the Government, they don't seem to provide any avenue for testing this, but at least they concede that much and then in any event, this Court has said again and again that one of a defendant's rights is to an impartial, or rather the word that has been used is unbiased or non-biased grand jury.

I want to say to Mr. Justice Whittaker that it is not our contention that government employees are prohibited from sitting in prosecutions by the United States and I want to say to Mr. Justice Frankfurter, that we are not arguing anything but a grand jury which sat in Washington D.C., in or about 1954, as this grand jury did with a majority of government employees in a case related to the National Security of the United States or more specifically to communism and we say as to that type of case and not grand jury that it was not qualified to pass upon probable cause in this case.

Justice Charles E. Whittaker: (Inaudible)

Mr. Joseph A. Fanelli: No sir, I'm sorry I didn't -- apparently, I failed to make myself clear.

I will state it again.

What we are saying is that for a grand jury in 1954, to have honored in a case involving the National Security, or communism if you will, the two are frequently acquitted although I think there are differences, a majority of government employees who have just been through seven years of the intimidation and oppression of loyalty-security programs, that a grand jury sitting at that point could not validly have honored a majority of government employees.

Justice William J. Brennan: (Inaudible)

Mr. Joseph A. Fanelli: Well, let me -- I was just going to go on Mr. Justice Brennan to the proposition that in Frazier, Mr. Justice Jackson had the insight to foresee what was beginning to happen, that in Dennis, in 1952 and Dennis rejected a contention there be -- specifically noting that the -- the loyalty order had been in effect for just two months, but even there, two Justices of this Court dissenting, took judicial notice of what I am complaining about in 1954.

Now, I'm told that in dissenting opinions, you must have paid too much attention to those, but I don't believe that.

The in most dissenting opinions, those Justices took judicial notice of what we have proven in this case, and what became obvious by 1954 when we reached the stake in this nation.

I wish I could evoke it but one need only read Mr. Justice Frankfurter's opinion in Dennis or Mr. Justice Black's also, when we reached the period, when one could say what the profit might give that hunts every men his brother with a neck and we're just slowly emerging from that, but I'm not arguing about a grand jury sitting today or in another type of case, no one that sat in 1948.

We do argue with subsidiary contention namely that we were at least entitled to a hearing, and that to grant us a hearing today under bias is not the same as a hearing then because as we put it, when the battle is over, all men would pray, and you can extract this fear now, and that therefore the indictment should be dismissed on that ground.

Justice Hugo L. Black: I understood you to say you proved it, did you say you proved what you are saying?

Mr. Joseph A. Fanelli: I think we did.

Now he refers to the opinion of two --

Justice Hugo L. Black: Where – where is the proof in the record if you will?

Mr. Joseph A. Fanelli: There -- if you would start with record number 9.

This was an affidavit with counsel and the case that --

Justice Hugo L. Black: So that -- is that affidavit of the court that you -- to which you refer?

Mr. Joseph A. Fanelli: Well, it incorporates two affidavits by two social psychologists who -- who made a survey.

Well, it wasn't just an expression of opinion Mr. --

Justice Hugo L. Black: How far does that go now?

I just want to know in fact the (Voice Overlap) affidavits?

Mr. Joseph A. Fanelli: Well, as to those two affidavits.

Justice Hugo L. Black: I don't want to -- your time is up.

Justice Hugo L. Black: Well, I know it is sir, Your Honor and if you begin with record number 12, 12 and 13 particularly and read the quoted material.

Justice Hugo L. Black: (Inaudible)

Mr. Joseph A. Fanelli: Yes, thank you very much.

Print this transcript Transcript:

Argument of Harry I. Rand

Chief Justice Earl Warren: Number 11, Herman Liveright, Petitioner, versus United States.

Mr. Rand.

Mr. Harry I. Rand: Mr. Chief Justice and may it please the Court.

This case, like the three which had preceded it, seeks the reversal of a judgment of the Court of Appeals for the District of Columbia Circuit affirming a conviction for contempt under 2 USC 192.

Petitioner here, at the time he was subpoenaed to appear in early 1956 in Washington before the Internal Security Subcommittee of the Senate, was employed as a program director at a New Orleans television station.

When he appeared in--

Justice Felix Frankfurter: As a what director, Mr. Rand?

Mr. Harry I. Rand: A program director.

When he appeared in response to the subpoena on March 19, 1956, he found sitting as the sole member of the Subcommittee Senator Eastland.

And, he was interrogated for some hours in the afternoon of that day, first, in closed executive session for about five minutes, and then an open public session for about, I think, an hour-and-a half to two hours by Senator Eastland, the sole member of the subcommittee sitting throughout the entire session, and by Robert Morris who, at that time, was Chief Counsel of the Subcommittee.

He answered numerous questions put to him with respect to his educational and employment background.

He refused, however, to answer 15 questions, including inquiries as to whether he was then a Communist and whether he had, at any time in the past, been a member of the Communist Party insisting that, in light of the scriptures of the First Amendment, the subcommittee had no authority or power to inquire into his personal and private affairs, into his political beliefs, or into his associational activities.

When he was asked whether he was relying on the Fifth Amendment, he expressly disclaimed any reliance on the privilege against self-incrimination accorded by that amendment.

For his refusal to answer the 15 questions, he was indicted for contempt.

He filed a motion to dismiss similar in nature to the motion which was filed in each of the preceding cases argued to this Court, a motion, in part, putting an issue of a question as to the competence of the grand jury and other questions which have been argued to Your Honors here this last week and this morning.

The motion to dismiss, like the other motions in the other cases, was denied in all respects.

Petitioner went to trial.

He was convicted, fined, and sentenced to three months imprisonment.

We urge reversal of the judgment of conviction on each of the grounds which we have set forth in the eight divisions in the argument of our brief.

We cannot, of course, in this half-hour argue orally each one of those points.

With the Court's permission and to the extent time permits, I should like, therefore, to address myself just to two of the grounds on which we rely for reversal.

First, it's our contention that petitioner here, in this case, was denied an opportunity adequately to cross-examine and to make a full defense with respect to the issue which has, here, been called the issue of probable cause.

I think it's now in plain view of the briefs filed by the government and in view of the oral arguments made by government counsel in this Court this last week that whatever the quarrel may be between the government and the petitioners here as to the assimilation of Fourth Amendment criteria to cases of this kind, whatever their quarrel may be as to the quantum of proof necessary to prove probable cause, as we have termed the issue, that the government now concedes that it is the duty of the government to make a showing and the duty of the Courts to consider in striking the balance which this Court says must be struck between the private interest and the public interest involved, it's the duty of the Court --

Justice Hugo L. Black: Why do you limit that to the private interest and the --

Mr. Harry I. Rand: Well, the private interest and the public interest in maintaining privacy inviolate as against the public interest in securing testimony from a witness, notwithstanding the scriptures of the First Amendment.

Justice Hugo L. Black: In a particular hearing.

Mr. Harry I. Rand: At a particular hearing from a particular witness.

The government now tells us that they agree --

Justice Felix Frankfurter: A statement from a particular w-- particular hearing, particular witness, regarding a particular piece of evidence.

Mr. Harry I. Rand: That is correct, Your Honor.

Now, the government says that --

Justice Felix Frankfurter: Not otherwise obtainable from anybody.

Mr. Harry I. Rand: Well, if the showing is made that it's not otherwise obtainable from anyone, now, so far as I know, none of these cases has such a showing been made by the government that the -- that it's in none of these cases, if I remember my records, has the government that the evidence sought from this particular witness has not been obtained or could not have been obtained from other sources, Mr. Justice Frankfurter.

Justice Felix Frankfurter: And the same would apply to a court proceeding, I take it.

Mr. Harry I. Rand: I'm sorry?

Justice Felix Frankfurter: And the same would apply for a proceeding in Court --

Mr. Harry I. Rand: That's right.

Justice Felix Frankfurter: If the witness is called.

Mr. Harry I. Rand: That's right.

Justice John M. Harlan: And, the grand jury in -- perhaps in Moreland Act Commissioner in New York.

Mr. Harry I. Rand: I assume in many other proceedings, Mr. Justice Harlan.

Justice Felix Frankfurter: Everywhere where there's of course power to make a man open his mouth when he wants to keep it shut.

Where there's an attempt by a legal person to make a man open his mouth when he wants to keep it shut.

Mr. Harry I. Rand: That's right, and I suppose in each of these proceedings, Mr. Justice Frankfurter, one considers the type of proceeding which is involved, the urgency for securing the information in this particular hearing by this particular tribunal in this particular manner, the question as to whether the information might not be procurable in other fashions and all these factors.

I am sure this Court as well as other Courts will consider and are required to consider in order to determine whether, under the circumstances of a particular case where a particular witness is being heard and being interrogated in a particular fashion, First Amendment rights should be invaded or may be invaded notwithstanding the great interest, not only of the public, but of the Courts and of the Congress, I assume, in maintaining privacy inviolate to the extent it can be maintained inviolate where urgent interests of state do not require that an invade -- that it be invaded.

Now, I as--

Justice Felix Frankfurter: It means that if defendant's counsel in a criminal case wants to stipulate a fact unequivocally and ambiguously, the prosecution must accept that stipulation and not call witness to that fact.

Mr. Harry I. Rand: I did not intend that to mean --

Justice Hugo L. Black: Well, do you --

Justice Felix Frankfurter: May you explain the difference?

Justice Hugo L. Black: Are you agreeing that when you put in balance the right of a public to get evidence against the right of a person to have his First Amendment freedom, that there might not be a considerable difference between a murder case where a witness' evidence is essential in order to determine the guilt or innocence of a man and in a hearing before some agency or some investigating Committee where the relevance is there, what hangs on that, whether that evidence is needed for the purpose of passing a law.

Mr. Harry I. Rand: I am not so-agreeing, Mr. Justice Black, and I would protest any such equation of interest or urgencies, indeed--

Justice Felix Frankfurter: How about a larceny case, instead of a murder case?

Mr. Harry I. Rand: Even in a larceny case.

Indeed, Mr. Justice Frankfurter --

Justice Hugo L. Black: Make it as a trespass case.

Make it anything, while he's getting a trial in a court and the question is his guilt or innocence.

The materiality of it, how much time is afforded for the government to get it in court trials in order to demand to have due process of law as compared with the right to get evidence which the Court said in the first discussion of the whole question is to be the least possible power adequate to the end desire, namely, the least possible power adequate to enable the government to pass a law.

Justice Felix Frankfurter: I assume the defendant said, “I don't want any witnesses against me.

I want to save time, money, and inconvenience.

I admit the following facts and I want to know whether when the defendant, himself, is protecting his due process by admissions.”

You can say the prosecution can't be allowed to put witnesses on the stand to human testimony and confirming testimony, although that testimony has been in by 3 or 2 previous witnesses.

Mr. Harry I. Rand: Well, Mr. Justice Frankfurter, of course that's not the case I'm arguing here.

Justice Felix Frankfurter: I understand that but I consider the principles you are proposing.

Mr. Harry I. Rand: Yes, but in these cases --

Justice Felix Frankfurter: This isn't just 18.

Mr. Harry I. Rand: Mr. Jus --

Justice Hugo L. Black: Well, why don't you answer then?

I don't see why you --

Mr. Harry I. Rand: Well, I don't know what the question is.

Justice Felix Frankfurter: I put it --

Mr. Harry I. Rand: I assume statements were being made.

Justice Felix Frankfurter: I put it --

Mr. Harry I. Rand: But, I had not heard any questions.

Justice Felix Frankfurter: My question is whether in a trial in which a defendant, for his own protection, gets up to eminent counsel and says “I admit the following facts,” unequivocally, unambiguously, is the prosecution shut off from accepting that fact, that stipulation, and saying, “No, I want to put-in human testimony to establish fact and to confirm it by having four witnesses swear to it because the jury may not be convinced by one witness.”

Mr. Harry I. Rand: Well, to the extent -- Mr. Justice Frankfurter, to the extent that a human being citizen or non-citizen protests interrogation on the ground that his First Amendment rights or the rights protected by the First Amendment, thus, the rights to express himself to hold political beliefs, the rights to have had certain associational activities, to the extent that a witness, even on a criminal trial, contends that that is being invaded, to that extent, I believe a Court would consider the urgency of securing such testimony as against the witness' right to remain silent.

Justice Felix Frankfurter: If the defendant --

Mr. Harry I. Rand: Now --

Justice Felix Frankfurter: -- says, “I don't want to prosecute you to put on a dramatic, persuasive witness who will unduly influence the jury.

I'm admitting all these facts and, therefore, I object.”

Mr. Harry I. Rand: Well, as I understand, Mr. Justice Frankfurter, the defendant is not trying to protect his own rights, as you put the case to me.

Justice Felix Frankfurter: He's protecting his own what?

Mr. Harry I. Rand: The defendant -- the defendant is merely suggesting that he would prefer not to have others put on as live witnesses who would stipulate as to the fact.

Justice Felix Frankfurter: Well, then, I'll have the witness' counsel, an eminent counsel of a witness who's called who'll test against having his client open his mouth because the facts are already conclusively in evidence.

Mr. Harry I. Rand: Well, Mr. Justice Frankfurter, I am pleased that I do not have to argue that case here, but I do think that the urgency of law enforcement is something different from the urgency of securing information for the purpose of considering whether a law, not defined, shall be enacted at some future date.

I'm surprised, for example, when the government, here, urges on this issue of probable cause that, although the quantum of proof, the probandum, in a criminal prosecution may be substantial, it should be less substantial here.

That is, that one -- that a Congressional Committee need not have as much cause to call a witness, says the government, as one that needs in a law enforcement procedure to get a warrant.

Justice Felix Frankfurter: That wasn't my question.

Justice Hugo L. Black: You don't have a protection, then --

Justice Felix Frankfurter: That wasn't my question.

Mr. Harry I. Rand: I understand that.

Justice Felix Frankfurter: My question was quite different and, from my point of view, you do have to answer my question for me to understand what you are arguing.

Mr. Harry I. Rand: Well, Mr. Justice --

Justice Felix Frankfurter: You don't have to because you don't think so, but I'm just telling you my mind and not your mind.

Justice Hugo L. Black: May I ask you, if you do not understand what's called a balancing test to have been based on the -- this premise, that any time a witness is called on to answer questions that's made trenched close to his First Amendment rights, that then comes a question of balancing and I suppose, although I agree with you that the test weight might be quite different with reference to a Committee or administrative agency and Court, but I suppose that rule would no less be applied in the Court.

If the Court's balancing test is a genuine test, in that when it appears even in Court that, by the introduction of certain evidence, the -- it's going to treat somebody's First Amendment right, the Court would consider in determining the admissibility of that evidence.

But, it was necessary to balance the interest, I suppose, under that test of the public in getting that evidence against the interest of the public in protecting First Amendment rights if the test is truly followed.

Mr. Harry I. Rand: Mr. Justice Black, I -- although I have no cases to support my position, I should think that would be so.

I see no reason, for example, why the privilege against self-incrimination, which traditionally, has been protected in the Courts, as well as in congressional Committees, should be put on al higher level than the privilege under the First Amendment, not the Fifth, to remain silent with respect to certain activities and with respect to certain beliefs.

Now, I don't know that the Courts have been confronted with this problem and I hope, for one, that I need not be here to argue the problem.

I think it's a more difficult one.

It's a more difficult case to argue than the case I'm arguing here and particularly, if I may continue, in view of the fact that the government has now conceded that what must be shown here as a minimum is that the Committee -- the subcommittee in this case had some information in its possession or within its knowledge which gave it reasonable ground to believe that this particular witness, Mr. Liveright, petitioner here, had something -- some information which might be of value to the investigation in which the subcommittee was, at that time, engaged.

Justice Hugo L. Black: Value in what?

Mr. Harry I. Rand: Some -- of some value to the subcommittee, in that the subcommittee might learn something by interrogating this witness in connection with an investigation in which it presumably was engaged.

Now --

Justice Hugo L. Black: To do what?

Mr. Harry I. Rand: In order to legislate --

Justice Hugo L. Black: Use for what purpose?

Mr. Harry I. Rand: In order to legislate.

I don't know for what purpose here because the Committee has not made a claim -- the subcommittee has not made a claim in this case what legislation it had in mind, what specific legislation it had in mind and, as I shall argue, as we argue in our brief certainly, the subcommittee here likewise, in our opinion, had not specifically delineated the subject matter.

So that, here, we are dealing with many generalities and many vague concepts but, at least, the government says “we agree we have to make a showing and we agree that the Court had to consider whether this subcommittee had some information which gave it reasonable ground to believe that this petitioner could be of some help to it in the investigative process leading toward legislation somewhere in the mind of the subcommittee.

Justice Potter Stewart: Do you think that's a fair statement of the government's position, really?

Mr. Harry I. Rand: Well, the government --

Justice John M. Harlan: I don't understand the government to come anywhere near your approach on this probable cause issue.

All they say is that, certainly, when it comes to assessing the ger -- the -- assessing the character of this investigation as one for exposure or exposure's sake or as one being pursuant to a legislative obj -- proper legislative objective, then the question as to whether there is held a scale or hauling of people in off the streets of what might be a germane consideration.

But, I understand you and the other people here are arguing these cases on the premise that this investigation, at least accepting the decisions of this Court, is in pursuance of a legitimate legislative purpose.

And, your argument on probable cause is within the framework of it being a legitimate investigation, am I right?

Mr. Harry I. Rand: Well, of course, this argument is within that framework.

We, of course, argue that there was no true legislative purpose but, Mr. Justice Harlan, if I may direct your attention to the government's brief, I think I --

Justice John M. Harlan: You say there's no legitimate investigation here because you don't accept the Barenblatt case.

That's all.

Mr. Harry I. Rand: No --

Justice John M. Harlan: If you start from that premise, are you contending that this is not a legitimate investigation?

Mr. Harry I. Rand: We are contending here that this was not a legitimate investigation, not-- it's true because we do not accept the Barenblatt case and we are still -- we believe --

Justice John M. Harlan: Then what's the effect about --

Mr. Harry I. Rand: Not we, I believe.

Let me say that because the Barenblatt case, of course, does not govern the other cases such as Shelton, Price, Whitman where there was a profess examination or investigation into infiltration in the Press.

One may -- this Court -- a majority of this Court may ultimately assimilate Barenblatt to --

Justice John M. Harlan: Do you think Barenblatt doesn't govern that either?

Mr. Harry I. Rand: I do not believe that a majority of this Court has said that the congressional committees have -- such as these, have authority to investigate Communist infiltration into the Press.

I think that--

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

Justice John M. Harlan: Education is alright, but not Press.

Mr. Harry I. Rand: Well, I have not said that education is alright, Mr. Justice Harlan, but I'd like, if I may, to direct myself to your question.

I do not--

Justice Hugo L. Black: I want to ask you a question --

Mr. Harry I. Rand: Sorry.

Justice Hugo L. Black: About Barenblatt before that, and you had decided many things that I did agree with but I had not suspect and do not yet know that it decided once and for all every question that's asked by this Committee is legitimate, whether it's relevant in a particular incident to aid the Committee in making law or not.

Did you so understand the Barenblatt case?

Mr. Harry I. Rand: I have not so read it, Mr. Justice Black.

Justice Hugo L. Black: Do you understand that it could or attempted to decide for all time, this being a legitimate Committee, in Barenblatt, it was legitimate in all the cases to ask the question which might come up in the next case?

Mr. Harry I. Rand: I had not so understood it but, of course, the government reads it that way, Mr. Justice Black.

The government reads Barenblatt as justifying what they say is an investigation into Communist activities or organization in general in the United States.

Justice Potter Stewart: I think the dissenting opinions in Barenblatt and Wilkinson render those cases that way, don't they?

Mr. Harry I. Rand: Mr. Justice Stewart, I had not so read the dissenting opinions, but if I can get back to Mr. Liveright who of course has retained me as his counsel, I should like to -- I should like to address myself to Mr. Justice Harlan's remarks suggesting that I am mistaking the government's position.

And, I should like to direct the Court, Mr. Justice Harlan particularly, to page 52 of the government's brief in this case where the government says expressly -- this is at the first full paragraph sec -- third sentence.

This Court indicated in Barenblatt that congressional committees can subpoena a witness, at least when the investigation is in an area closely related to rights protected by the First Amendment, only if the Committee has information giving reasonable ground to believe that the witness has information of value to the investigation.

Similar statement made at page 54 of the brief, similar statement made in the Shelton briefs, so I certainly did not intend to mistake the government's position.

I understand the position as orally stated here, notwithstanding Mr. Justice Frankfurter's, I think, attempt to secure a greater clarification, perhaps a more limited statement from the government.

The government's position stated here is that the government must show in every trial for contempt under 2 USC 192 in these cases, and that the Court must consider whether there is information which the Committee knew about, had in its possession, with respect to this particular witness, giving it reason to believe that this witness had something to tell the Committee which would help it in its legislative -- in its investigative process.

So, we get down really to two questions which are essentials in these cases.

Justice Felix Frankfurter: May I ask you, therefore, whether that means that, in every congressional investigation, the Chairman of the Committee, when John Doe is called as a witness, must explain to him why -- state to him the specific knowledge in the possession of the Committee that makes it relevant to call him and relevant to ask the question that he's being asked.

Is that your position?

Mr. Harry I. Rand: That is not my position.

Personally, that is not my position.

I know it was Mr. Rauh's position.

I b -- it may well be that --

Justice Felix Frankfurter: How can you escape it from your point of view if --

Mr. Harry I. Rand: Let me--

Justice Felix Frankfurter: If you ask, if you summon a witness without having knowledge -- revealable knowledge as to the reasons for asking him and if it is important or constitutionally necessary to tell him why he's being asked specific questions, why is a duty of a Chairman of a Committee to tell that, the burden is on the Committee to tell that to a witness before he's interrogated?

Mr. Harry I. Rand: If a witness inquires, it may be the duty.

But, Mr. Justice Frankfurter, I think --

Justice Felix Frankfurter: Now, when the witness here asked, he --

Mr. Harry I. Rand: He did not.

Justice Felix Frankfurter: Alright.

Mr. Harry I. Rand: Now, Mr. Justice Frankfurter, I think what's being confused are two considerations here.

Justice Felix Frankfurter: What --

Mr. Harry I. Rand: First ---

Justice Felix Frankfurter: --are the things being confused here?

Mr. Harry I. Rand: Well, I'm trying, despite great difficulty to keep them clear in my presentation.

The first -- we are not urging what has generally been called the matter of luminosity here.

In other words, we're not urging that there has been any defect in these proceedings by reason of Mr. Liveright not being informed, despite his questioning, despite his inquiry, or notwithstanding the lack of inquiry, not being informed as to why he was being called.

We, however, are urging that the government concedes that, in order to effect this balancing process, in order that a balance which this Court says must be struck, the trial court must consider what it was that was so important to the Committee which caused it to call this witness to ask him questions generally deemed to invade First Amendment areas and, when he refused to answer them, to submit him to the Courts for punishment for contempt.

As I read this Court's opinions, the majority opinions in this Court, this Court has said the trial court must strike that balance because, unless it strikes that balance, we're in danger of having first -- the rights generally deemed protected under the First Amendment unjustly invaded.

The government apparently reads the opinions of this Court the same way because the government says, “We agree that, at the trial, we've got to show to the trial court, because the trial court has to affect this balance to strike it, we've got to show to the trial court why it was we -- the subcommittee wanted this witness.”

Justice Felix Frankfurter: But, Mr. Rand, I put it to you, in all good conscience, if that's the constitutional requirement, then it not only be who but it is demanded of the Chairman of each Senate or House Committee to put that into the record when he summoned -- when a witness appears before it and from questions of Court, or else, you're running the great danger of retroactive testimony as to what was in the minds of people who didn't disclose their mind.

Mr. Harry I. Rand: Well, I agree, Mr. Justice Frankfurter, but I do not have to go that far for purposes of this case.

For purposes of the case, I'm arguing here today.

Such retroactive testimony, we are running into in all these cases, as Your Honors have noted.

With respect to subject matter of inquiry, we're continually getting rationalizations after the fact.

In this case, however, it seems to me that the least that was required, and so the government concedes, I know it -- the government's concession does not bind the Court.

But, the government concedes that the least that was required was a showing at the trial stage of this proceeding of what information this subcommittee had in order to justify its summoning of this petitioner in this investigation.

Now, what happened here, this was not --

Justice Felix Frankfurter: The same thing would be true if the Congress exerts or exercises its own power of committing for contempt.

I do not see --

Mr. Harry I. Rand: I should think so.

Justice Felix Frankfurter: I do not see that there's more limitation because of the First Amendment on a Court than there is on Congress, and therefore, McGrain and Dougherty, McCracken, every blessed investigation from the beginning of time would require or would in the future require a Chairman to make a solemn, serious, detailed account speech to the witness as to why he's there and why he's being asked these questions.

Mr. Harry I. Rand: Well, Mr. Justice Frankfurter, unless there is some showing to the Courts of why the witness is there or why he's being asked the questions, and I respectfully submit that this whole balancing process is merely lip service, t --

Justice Felix Frankfurter: It all depends what you mean by balancing it.

Mr. Harry I. Rand: That's --

Justice Felix Frankfurter: We'll next have a scale brought into Court and weigh it in a proper guarded scale rather than balancing an offense in which it will delineate it in those prior decisions.

You may not like them, but there they are.

They may be overruled but here they are up to this point.

Mr. Harry I. Rand: Well, Mr. Justice --

Justice Hugo L. Black: I understand you're trying to argue within them.

Mr. Harry I. Rand: I am trying to argue within them, Mr. Justice Black, and it seems to me that arguing within them, we have been denied our rights here.

The government introduced, at the trial of this case, evidence through the mouth of Mr. Robert Morris, Chief Counsel of the Subcommittee and the only material witness for the government, evidence as to what information the subcommittee had, the warrant justifying the summoning of this witness, what information it had prior to the subpoenaing of the witness.

When we cross-examined Mr. Morris, we found Mr. Morris told us that he had secured this information from a confidential informant whom he described as a reliable informant.

We sought, by cross-examination, to obtain the identity of this informant.

The government objected and we were denied an identification of the informant.

We sought to ascertain whether the informant was a professional informant or casual informant.

The trial court denied us an opportunity to inquire as to that.

Mr. Morris had said that he talked to this unnamed informant on three or four occasions about petitioner here and it was those discussions on those three or four occasions either by telephone or outside Mr. Morris' office that had led the subcommittee to summon this witness.

We tried to test the credibility of Mr. Morris' testimony by asking how long these discussions had lasted with respect to petitioner.

The trial court, on the government's objections, refused to permit us to inquire for these matters.

Prior to the commencement of the trial, we had subpoenaed -- we had issued subpoenas to Mr. Morris, as Chief Counsel of the Subcommittee, and to the Senate Clerk requesting that the -- all the information on the files of the subcommittee relating to petitioner be brought to Court to enable us to inspect that information and to use it if it was deemed necessary to use it.

On the government's motion, those subpoenas were quashed in their entirety.

After Mr. Morris had completed his testimony and we'd been denied cross-examination of Mr. Morris, we again asked the Court to direct that Mr. Morris be instructed to bring into the courtroom that information, so far as it was reflected in writing, relating to this petitioner which Mr. Morris had said had caused the subcommittee to subpoena him.

This time, the Court didn't wait for any government objections.

The Court summarily and peremptorily denied our request.

So, what happened here was that we were denied any opportunity, whether by cross-examination, by subpoena, or otherwise to test the credibility of what Mr. Morris had said was the inf -- had said as to the information causing the summoning of this witness as to the need by the subcommittee for this witness' testimony.

Nothing appears in the record to indicate why Mr. Morris should've been granted such favors, favors generally not granted other witnesses whether government or otherwise.

The only reason which the trial court has signed for denial of our right to cross-examine, denial of our request for information was that the information, according to the representations of government counsel and Mr. Morris, was confidential.

I want to leave one note -- make one further note with respect to this issue before I conclude, and it's this.

This is not a case like the Barenblatt case where, as Your Honors may recall, there had been sworn testimony by others putting Mr. Barenblatt in the Communist Party or at least indicating that Mr. Barenblatt had participated in activities of the Communist Party.

There was no sworn testimony, whatever, with respect to Mr.Liveright prior to his being summoned and, so far as we know, there is, to this date, no testimony on the public record of any of these Committees, either if these Committees whether in the House or the Senate, putting Mr. Barenblatt -- Mr. Liveright in the Communist Party either as a member or as a participant.

I see my time is --

Chief Justice Earl Warren: You've had very little opportunity to make your argument.

We'll give you five minutes in rebuttal if you decide to have it.

Mr. Harry I. Rand: Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: So, the government may have five minutes extra also.

Argument of J. William Doolittle, Jr.

Mr. J. William Doolittle, Jr.: Mr. Chief Justice and may it please the Court.

Petitioner is arguing two points in this oral argument today.

He has only adverted to one.

I hope to be able to cover it so that it won't be covered solely in rebuttal.

Justice Hugo L. Black: Is the indictment printed?

Mr. J. William Doolittle, Jr.: Yes, sir, it is.

Mr. Justice, it is in, again, in this blue volume.

Justice Hugo L. Black: This appendix?

Mr. J. William Doolittle, Jr.: And it's at pages 1 through 3, but it's after the pink divider.

You see, the first part of that volume is the brief in the Court of Appeals and it's after the pink divider.

Then, the numbering starts again and it's at page 1.

Now, the two basic questions that are raised and that I do hope to be able to cover in the time available are, first, the basis for the Committee's -- subcommittee's calling the petitioner and, second, the extent to which a subject under inquiry and the pertinency of the questions to that subject were adequately established and proved.

Now, the question of the basis for calling the petitioner has been raised here in the context of the trial court's limitation on the right of petitioner's counsel to cross-examine concerning the identity of confidential informants.

Now, I think it's very important to realize the context in which that particular question first arose in this case originally at the trial, and I might say that there was no question of the Committee's basis for calling petitioner raised at the hearing, at trial, the only question that was raised with respect to acquiring this information on which the Committee based its calling of petitioner was petitioner's contention that the Committee already had all of the information that it sought to obtain.

In other words, that its calling of petitioner was a vain act, not that the subcommittee didn't have any basis for calling him.

Quite the contrary, that it had all of this basis and didn't really need to know anything else.

Now, we argued in our brief and we do contend that this would be no defense since the subcommittee does have a legitimate interest in confirming its information in determining whether or not the informants that have given it this information are reliable and in establishing a foundation for asking further questions.

However, after the trial level, the petitioner is now raising this question as to the basis for the subcommittee's calling petitioner.

We point out, first, of course, that this is, we submit, fatally inconsistent with his prior contention that the subcommittee already had all of the information that it sought answers on, and I might say that's at page 128 of the joint appendix where that statement appears in the trial record.

Justice Hugo L. Black: Was the conviction on all the count?

Mr. J. William Doolittle, Jr.: The conviction was on 14 out of 15 counts, Your Honor.

Justice Hugo L. Black: Which one was not?

Mr. J. William Doolittle, Jr.: 15 was the one that was not.

Justice Hugo L. Black: When -- where they said he had refused to tell whether his wife would be coming?

Mr. J. William Doolittle, Jr.: That's right.

The District Court did not convict him on it.

Justice Hugo L. Black: Did jury acquit on that?

Mr. J. William Doolittle, Jr.: No, actually, the District Court dismissed that.

Justice Hugo L. Black: Dismiss?

Mr. J. William Doolittle, Jr.: Yes, sir.

Neither at the hearing or at the trial did petitioner rebut what the government contends is the presumption of regularity in the subcommittee's having called petitioner and, thus, we submit the issue of the basis for the subcommittee's calling petitioner just was not brought into the case.

However, it is plain from the record in this case that petitioner was not called as a result of indiscriminate dragnet procedures, to use the language of Barenblatt.

Subcommittee counsel, at the trial, gave sworn testimony concerning the information that provided the basis for the subcommittee's calling petitioner.

We've set forth that information at pages 4 and 5 of our brief, summarizing what was testified to a trial.

Justice Hugo L. Black: Did you put it all in your brief what you find?

Mr. J. William Doolittle, Jr.: Well, we've summarized, Your Honor.

I think you'll find the references are fairly complete to the joint appendix.

Chief Justice Earl Warren: Mr. Doolittle, may I ask if that is all testimony that is also -- was also brought up before the Committee or is this --

Mr. J. William Doolittle, Jr.: I was--

Chief Justice Earl Warren: Or is this -- any of this new matter?

Mr. J. William Doolittle, Jr.: I was about to point out, Mr. Chief Justice, that substantially all, and I believe all, of this information was in fact actually discussed in the hearing before the various questions were asked.

This -- in this hearing before series of questions, either the Chairman or the chief counsel would state what information the subcommittee had and then it would proceed to ask the petitioner the questions but I think, in specific answer to your question, the information that did come out at trial was not, in any significant way, different from the information that obviously formed the basis of the various questions that petitioner was asked at the time.

Chief Justice Earl Warren: May I ask you this question now, Mr. Doolittle.

Do you consider yourself bound by the record before the Committee in that respect or do you contend that the government witnesses, in order to prove a necessary element of the crime, can bring in testimony that was not before the Committee to show the importance to the government and the importance to the Committee of the testimony that it sought to elicit from the petitioner?

Mr. J. William Doolittle, Jr.: Well, if I could have one point of clarification, Mr. Chief Justice, when you say not before the Committee, do you mean not --

Chief Justice Earl Warren: It was not --

Mr. J. William Doolittle, Jr.: Not -- not disclosed in the hearings?

Chief Justice Earl Warren: Not disclosed in the -- yes, not disclosed in the hearing at which petitioner was present.

Mr. J. William Doolittle, Jr.: It is our contention, Mr. Chief Justice, that the subcommittee does not have any obligation to disclose the information at the hearings, and our position is that the first time there comes any burden on the part of the United States taken as a whole, Congress and the Executive Branch, to make any disclosure on this point is when, if it does take place at trial, a strong and substantial showing is made by the defense that there was no basis whatsoever.

Then, the government must make at least a prima facie showing that the Committee did have some basis.

Chief Justice Earl Warren: Will you do that in rebuttal or do you do that in your case in chief?

Mr. J. William Doolittle, Jr.: Well, it would depend on -- presumably, I mean -- I'd say, technically, it would be rebuttal because as we say --

Chief Justice Earl Warren: Can you do it in your case in chief?

Mr. J. William Doolittle, Jr.: I'm sorry?

Chief Justice Earl Warren: Can you introduce such testimony in your case in chief, that is, testimony that is not covered by the record itself?

Mr. J. William Doolittle, Jr.: Well, again, you're talking about testimony that was not brought out at the hearings.

Chief Justice Earl Warren: At the hearing, yes.

Mr. J. William Doolittle, Jr.: Yes, we can certainly contend that the government can do so --

Chief Justice Earl Warren: Then --

Mr. J. William Doolittle, Jr.: If it's--

Chief Justice Earl Warren: Can you --

Mr. J. William Doolittle, Jr.: If the inquiry is made with what was the basis and, as I say, a strong showing is made that there was no basis, then, as we say, the government certainly may disclose to a reasonable extent the basis that there was.

Chief Justice Earl Warren: Now, if you're going to do it in your case in chief, how could you put the defense to the test of making a strong showing before you're advised to do it?

Mr. J. William Doolittle, Jr.: I'm afraid I don't quite understand the question, Mr. Chief Justice.

Chief Justice Earl Warren: Well, I understood you to say that when there was a strong showing by the defense at the trial that -- as to whether or not there was a showing made, that you could put on testimony to prove that there was, that this had been done because of proper investigation on the part of the government.

But, I ask you, how could they make a strong showing if you're going to put on the testimony in your case in chief?

Mr. J. William Doolittle, Jr.: Well, it's quite possible, of course, that the case in chief will establish so clearly that their -- that the Committee had an actual basis that, perhaps, the petitioner won't --

Chief Justice Earl Warren: Yes.

Mr. J. William Doolittle, Jr.: -- be able to make any showing, but there are any number of facts, for example, a conclusive -- an absolutely conclusive demonstration that the information that they were talking about involved some other person, then it couldn't have involved petitioner.

Chief Justice Earl Warren: I see.

Mr. J. William Doolittle, Jr.: I argue that the first point that petitioner has raised in that concerns the Committee's basis for calling the petitioner.

After subcommittee counsel had testified to the effect that I have referred to and as set forth on pages 4 and 5 of our brief, he submitted to cross-examination on a number of aspects of that information such as, as counsel has pointed out, the reliability of the informants and the form in which the information was received, that is to say, whether it was oral or written, circumstances in which it was received, and so on.

And, it did appear from the record, there's no indication to the contrary, that the Court would've allowed further questioning along these general lines.

The line was drawn at compromising confidential informants.

Now, I would like to point out that the types of information that were brought out in this case and the form in which the information was brought out in this case is the same as it was in the Barenblatt case, that is to say, it is the same type of information, the same form that the Court relied on to rebut the proposition that the witness was called as a result of indiscriminate dragnet procedures.

Now, in this case, as in so many of these cases, the contention is again raised that the subject under inquiry by the subcommittee when the petitioner appeared was not sufficiently set forth at that time and was not proved by the government at trial.

And, here again, it is not so much contended that there were no indications of subject matter but, rather, there were too many such indications and that they were inconsistent with one another.

I think it is very appropriate in these circumstances to consider briefly why it is important to identify a subject under inquiry, and also, to consider the character that a subject under inquiry may assume.

Of course the primary reasons for identification of a subject under inquiry by an investigating committee are essentially practical.

A witness, in deciding whether or not to answer each question, needs to know the subject under inquiry at that time so that he can reach a judgment, on the one hand, as to whether that subject is within the Committee's general investigating authority and, on the other, as to whether the particular question that he's trying to decide whether to answer or not is pertinent to that subject matter.

What I want to emphasize is that the proper focus for this must necessarily have been the witness' focus is upon the relationship that each question bears to what the subject under inquiry was, at the time of the question was asked, and what the witness understood it to be at that time.

Now, as a practical matter, the subjects under inquiry by a subcommittee with investigatory authority as extensive, and yet, as interrelated as that of the Senate Internal Security Subcommittee are bound to develop essentially in layers.

There is no question but that the Internal Security Subcommittee of the Senate had been engaged for a number of years in one basic investigation with a single central theme, and that is the investigation of com -- of the Communist organization and activities in the United States.

And, in a very real sense, that is always a subject under inquiry, against which the subcommittee's questions may be properly judged.

However, as much for convenience and efficiency as for any other reason, the subcommittee will often conduct hearings focused upon a narrower aspect of that basic subject, a lesser included subject under inquiry, so to speak.

A good example of this is the three-day set of hearings that the subcommittee held on Communist infiltration into news media which is involved in the Shelton, Whitman, and Price cases.

Not infrequently, however, the breakdown within the basic subject under inquiry will coincide not with a group of witnesses in one trade or profession but with a single witness, thus, in the present case.

The subcommittee was pursuing as a part of its basic subject under inquiry, which was Communist organization and activities in the United States, generally.

The more specific subject on which it had reason to believe that petitioner had information was recent revisions in Communist organization and Communist activities in the south.

And, finally, the subject under inquiry may be, and often is, narrowed down even more for the purposes of asking a specific single question.

The present case provides an excellent example of that.

Prior to asking the petitioner whether he had contributed funds to the Communist Party, the Chairman informed him that the subcommittee wish to know how the Party was financed, thus, establishing a subject under inquiry for that one particular question.

And, this illustrates what I mean when I say that the subject under inquiry often manifests itself in layers.

When this last question was asked, the basic subject under inquiry was Communist activities generally, within which, the witness was being questioned on the narrower subject of organizational revisions and activities in the south.

And then, for the purpose of this one question, the subject was expressly narrowed to Party finances.

Now, it is, of course, this stratification of greater and lesser included subjects under inquiry that explain some of the statements by the prosecutor and by subcommittee counsel at trial, suggesting a broad subject of inquiry in terms of Communist activities generally.

Those statements, however, were in no way inconsistent with, nor did they in any way change what the government's evidence showed, the subject under inquiry to have been and what the petitioner understood it to be.

Now, I should like, very briefly, to review the evidence that did establish what the subject under inquiry was in the present case.

On March 19, 1956, the petitioner appeared before the Senate Internal Security Subcommittee very briefly in executive session but, upon his refusal to answer to questions concerning Communist associations, he was temporarily excused.

Shortly thereafter, on the same day, he was called before the subcommittee in open session.

Before he was asked any questions, subcommittee counsel read a statement by the Chairman setting forth the purposes of the hearing and the critical portion of that statement was this paragraph.

“We shall try to determine to what extent Soviet power operates through the Communist Party here and to what extent other organizations have been devised to effectuate its purposes.

We shall study the structural revisions that the Communists have made in their network in order to avoid detection, and endeavor to trace the movement of individual agents through these changing structures.”

Petitioner was then asked, and answered, a number of questions about his current employment in New Orleans and about his previous employment in New York and elsewhere.

Then, subcommittee counsel, after stating that the Committee had information that petitioner and his wife had been instructed by the Communist Party to avoid formal party associations when they went south, made this statement.

“The purpose of subpoenaing this witness and asking him the following questions is to determine to what extent Mr. Liveright's activities have been carried out in New Orleans in the framework of a Communist Party and to what extent they have been carried out in some other framework.”

Petitioner was then asked and refused to answer questions as to whether he was then a Communist or whether he had ever been a member of the Communist Party, and these refusals form the basis for counts three and four.

Then, the Chairman, after noting that we are tracing the activities of the Communist Party in United States, made this statement.

“Our information is, sir, that you are sent south and placed there with your wife on a mission for the Communist Party and were told by your superiors not to become involved with the Communist cell that was a professional group in the City of New Orleans, but the word was used by your superiors to stay clean.”

The Chairman then asked petitioner the questions that form the basis for counts five through seven, whether he was sent on a mission for the Party into the south, whether he had affiliated with the Communist cell in New Orleans composed of professional people, and whether Communist meetings had been held in his home in New Orleans.

Then, after petitioner was asked and refused to answer question about being membership director of a named unit in the Communist Party, the Chairman stated that the subcommittee desired to know how the Communist conspiracy was financed and that it had information that petitioner had given money to the Communist Party on various occasions.

Petitioner refused to state whether this was true, and this refusal forms the basis for count 9.

Then, petitioner was asked the questions on which counts 10 through 14 are based.

This concerned mainly certain activities in New York, the holding of Communist meetings in his home in New Orleans, when he joined the Communist Party, and whether he had been told by the Communist leadership to stay clean in New Orleans.

Thus, as the Court of Appeals found, and that's at page 8 of the record, not only was the subject under inquiry spelled out at the beginning of the open session to be “structural revisions that the Communists have made in their network to avoid detection and the movement of individual agents through these changing structures,” but it was further refined by a specific statement that the subcommittee wish to determine the extent to which petitioner had been sent south to carry out Communist activities on an undercover basis.

And then, each of several series of questions was preceded by a careful explanation of the way in which the questions were pertinent to the announced subject under inquiry, although most of them were pertinent on their face and these matters, of course, were established at trial by the government's introduction of the transcript into the record.

Now, since petitioner did not raise the subject of the subject under inquiry or the pertinency of the questions asked, we contend that it is not open to him to contend that he was not up apprised of these matters.

His objection, which was a lengthy legal statement comparable to that involved in the Barenblatt case, expressed only his objection to being questioned on his political beliefs and his associational activities.

The only mention of pertinency, like in Barenblatt, was that he might wish to challenge the pertinency of the question of the investigation, and that's a type of objection that was expressly held in Barenblatt to be ineffective to raise a pertinency objection.

Furthermore, however, it is plain that the petitioner was aware of the subject under inquiry and of the pertinency of the subject's -- of the questions to that subject.

Prior to his appearance at these hearings, his counsel called the subcommittee counsel who informed him in general terms as to the subject matter of the inquiry, and counsel indicated that he understood.

The same counsel represented petitioner at the hearings themselves.

He did not indicate that there was any variance between the subject disclosed to him in advance and that actually inquired into by the subcommittee.

Petitioner, of course, heard the repeated explanatory statements at the hearings by the Chairman and by subcommittee counsel.

And, we submit that there cannot possibly have been any question in his mind as to what was being inquired into and how the questions were in fact pertinent.

Counsel, in his brief, has also raised several other questions and I should like to deal with as many of them as I can within the time available to me and, as to the remainder, we will of course rely on our brief.

The first of these contentions is that the Senate Resolution, under which this subcommittee was operating, was unduly vague.

Now, the authority of this subcommittee to act arose out of Senate Resolution 366 of the Eighty-First Congress, and that's set forth in the petitioner's brief in this case at pages 50 and 51.

Actually, there's a paragraph or two that is not included there, but I'll refer to that a little later.

In each subsequent session, that basic resolution has been readopted and, in this case, the Senate Resolution that readopted the one that was in effect at the time of this hearings was Senate Resolution 174 of the Eighty-Fourth Congress.

Now, as a whole, we submit that this resolution, Senate Resolution 366, and the precise terms are repeated in 174, that their terms are very much clearer than the House Un-American Activities Committee charter which was considered in both the Watkins and the Barenblatt cases.

And, the Rule 11 of the House which was involved in those cases is set forth in our brief in this case on page 21.

But, specifically, this -- Senate Resolution 366 and 174 specifically authorize an investigation into “infiltration by persons who are or may be under the domination of the foreign government or organizations controlling the World Communist Movement or any other movement seeking to overthrow the Government of the United States by force and violence.”

And, we submit that that is a very clear and specific authorization for the conduct of this particular investigation.

However, that should not be thought to be the case.

Like House Rule 11, this resolution -- series of resolutions, indeed, comes to us with a persuasive gloss of legislative history that shows that the Senate did authorize investigations of Communist activities in this country like the ones that are involved in these cases.

To use the same factors that the Court cited in the Barenblatt case in discussing the legislative gloss of House Rule 11, first, this subcommittee has devoted most of its energies to investigating Communist activities in various phases of American life, and those hearings are set forth in our brief in this case at pages 26 and 27.

The Senate has repeatedly continued the life of the subcommittee at each Congress, and the resolutions that do that are set forth in pages 27 and 28 of our brief.

The Senate has never narrowed the authority of the subcommittee and the Senate has continually supported it with substantial appropriations and those by the same resolutions that I have referred to, cited in our brief.

Now, the contention is also made that this subcommittee could not act, at the time that it was questioning petitioner, because the Senate was in session.

Section 134 (c) of the Legislative Reorganization Act provides that Committees shall not sit while the Senate is in session without special leave.

Now, we contend, first, that this claim is not open to the petitioner because he did not object at the hearing when, if something was to be done about this, it could've been done.

He did not inquire as to whether this problem was present, and we submit that it is not now open to him to raise the objection.

However, we submit, too, that in any event, Section 134 (c) is a procedural limitation for the benefit of Congress alone in order to secure attendance at its various sessions and that, in any event, it was not intended to confer any rights upon witnesses.

Finally, Section 2 of Senate Resolution 366, which is set forth at page 3 of our brief in this case, expressly gave the subcommittee authority to sit and act at such places and times during the sessions, recesses, and adjourned periods of the Senate as it deemed advisable.

Thirdly, the contention on the subject of the authority of the subcommittee is raised that counts one and two are invalid because the executive session at which they were asked was not authorized.

Section 133 of the Legislative Reorganization Act requires that there'd be a majority vote of a subcommittee to authorize executive sessions, and it is to that provision that petitioner is referring.

Here, again, we contend that this point is not open to the petitioner because he did not raise it at the hearings when it could've been corrected.

However, we do submit that it is unnecessary to resolve this question one way or the other since it does affect only 2 of the 14 counts.

On the basis of which, petitioner was convicted since he was given a general sentence that is less than he could've received on any one count.

His sentence must be confirmed if any one count is valid.

Next, I should like to touch briefly on the point of government employees being on the grand and petit juries.

Government counsel in the Russell case has stated the government's basic position.

That is, that in order to challenge an indictment on this ground, there must be an allegation of specific and convincing evidence of strong bias on the part of individual grand jurors.

Now, the affidavit, on the basis of which petitioner did make the challenge that he made, does not, unfortunately, appear on the record here.

However, it is substantially similar to that in the Shelton case, and that appears on pages 4 to 8 of the Shelton record, except that it does not contain the last two paragraphs of the Shelton affidavit which alleges personal knowledge on the part of counsel in the Shelton case.

But, the Court, I think, may take the Shelton affidavit as being substantially what was involved in this case.

Now, it is our contention that that affidavit was far too general.

It did not allege specific and convincing or any other kind of evidence biased on the part of individual grand jurors, nor did it even state any specific evidence of fear or intimidation on the part of government employees generally.

Now, we contend of course that the same considerations are applicable to the petit jury but, of course, it is important to realize that, with respect to a petit jury, and there was a jury involved in this case, that voir dire is available.

In this case, there was and --

Justice John M. Harlan: There was a jury?

Mr. J. William Doolittle, Jr.: There was a jury in this case, yes, sir.

Justice John M. Harlan: (Inaudible)

Mr. J. William Doolittle, Jr.: Yes, sir.

There was a petit jury in this case.

Justice John M. Harlan: (Inaudible)

Mr. J. William Doolittle, Jr.: There was a petit jury in this case and counsel did participate in the voir dire, yes, sir.

Justice John M. Harlan: Was there an application after the grand jury found it was voir dire?

Mr. J. William Doolittle, Jr.: I don't believe so.

Well, I just don't know about that.

Justice William J. Brennan: The very same situation as was -- as in the Russell case.

We asked for a hearing in the alternative if --

Mr. J. William Doolittle, Jr.: Hearing was requested.

Yes, certainly, a hearing was requested.

I didn't understand your question to go to that point.

Justice Charles E. Whittaker: (Inaudible)

Mr. J. William Doolittle, Jr.: No, this of course was afterwards.

That's why I didn't understand Mr. Justice Harlan's question.

It --

Justice John M. Harlan: I understand.

My question was before the matter reaches the grand jury, was there an application in the (Inaudible) with respect to the jurors?

Mr. J. William Doolittle, Jr.: Grand jury?

No, sir, there was no such --

Justice John M. Harlan: No?

Mr. J. William Doolittle, Jr.: No.

The application was made actually at roughly the time of trial to have a hearing in which the grand jurors would be brought in for questioning as to --

Justice John M. Harlan: (Inaudible)

Mr. J. William Doolittle, Jr.: Right.

Chief Justice Earl Warren: Would it make any difference, in your case, whether it had been made before he was indicated or afterwards?

Mr. J. William Doolittle, Jr.: Well, I don't suppose it really would.

I don't suppose that it would.

Now, in this case, in the case of the petit jury, an extensive voir dire examination was in fact conducted as to whether nature of the charges involving, as they did, communism and questions relating to communism, or the government employees -- the government employment of some of the jurors might affect their decision.

Petitioner's counsel asked some 13 questions along this line, those are 86 to 94 of the transcript.

The Court, itself, asked six more relating to this very point and those are set forth at pages 95 to 96 of the transcript.

The Court then actually dismissed to jurors on related grounds, first, an employee of the Central Intelligence Agency and, secondly, a woman who was an officer of an organization that had conducted a study of the security program.

Petitioner also raises the question as to whether or not the indictment was sufficient in this case.

Now, the sub -- first he raises this question with respect to the allegations on the subject under inquiry and the pertinency of the questions.

The indictment did allege that the questions were pertinent to the subject then under inquiry.

Justice Charles E. Whittaker: May I ask you another question?

Mr. J. William Doolittle, Jr.: Surely, yes, sir.

Justice Charles E. Whittaker: (Inaudible)

Mr. J. William Doolittle, Jr.: Yes, sir.

Justice Charles E. Whittaker: (Inaudible)

Mr. J. William Doolittle, Jr.: That's right.

The challenge was raised on the same basis for both.

Justice Charles E. Whittaker: (Inaudible) same basis?

Mr. J. William Doolittle, Jr.: Well, the charge -- the complaint as to both is that there were government employees.

There was a general motion to disqualify for a cause made with respect to the petit jury.

Petitioner did move at trial to have all government employees disqualified from the petit jury on the ground that they were government employees.

Justice Hugo L. Black: Where is that motion?

If it takes you too long, don't bother then about it.

Mr. J. William Doolittle, Jr.: Page 10 of the joint appendix, Mr. Justice.

Now, as government counsel argued in the Russell case, no Court has ever indicated that such detail as the petitioner would ask for here is required in indictments in cases of this type and the Court of Appeals for the District of Columbia Circuit has repeatedly held to the contrary.

It is our contention that the insistence upon specifically stating subject under inquiry and the pertinency of each question to that subject under inquiry would be inconsistent with Rule 7 (c) which calls for a plain, concise, and definite written statement of the essential facts constituting the offense charged.

We point out, for one thing, that there was no bill of particulars in this case indicating that there was any confusion on the part of the petitioner at trial.

We also point out that indictments substantially the same, exactly the same, on this point were involved in Barenblatt, Deutch, and Wilkinson and that the question was not, at least, sufficiently obvious for counsel in those cases to raise or for the Court to rule upon.

Secondly, the question is raised as to whether or not the authority of the subcommittee had to be more spelled out in more detail than it was in the indictment in this case.

We submit that the authority of the subcommittee was set out in sufficient detail, and here is the detail in the indictment.

Pursuant to the Legislative Reorganization Act of 1946, Section 102 (1)(k), 60 Stat. 818, and the Senate Resolutions 366 of the Eighty-First Congress and 174 of the Eighty-Fourth Congress, and to the standing rules of the Senate.

And, incidentally, the standing rules of the Senate are relevant because they give the authority of the judiciary -- the basic authority of judiciary committee as a standing committee.

We submit that nothing more than this could reasonably be required in an indictment that must have a plain, concise, and definite written statement of the essential facts constituting the offense charged.

I see that my time has run out.

Thank you.

Justice Hugo L. Black: May I ask you just one question.

Mr. J. William Doolittle, Jr.: Yes, sir.

Justice Hugo L. Black: Is there any argument here in connection with that ground of the motion to dismiss which allege that there had only been one offense committed, instead of 15?

Mr. J. William Doolittle, Jr.: No, sir.

That claim has not been raised.

Justice Hugo L. Black: That's been abandoned here.

Mr. J. William Doolittle, Jr.: Yes, sir.

Chief Justice Earl Warren: Mr. Rand.

Rebuttal of Harry I. Rand

Mr. Harry I. Rand: Mr. Chief Justice, may it please the Court.

A few remarks with respect to the issue of probable cause, I think we ought to be quite plain here just what happened in this case.

There was no information before the subcommittee with respect to this petitioner prior to his summoning.

There is nothing in the record, so far as we know, of the subcommittee such as one found in the Barenblatt case where a prior witness had named the wit -- this particular witness, Mr. Barenblatt, on the one case, and Mr. Liveright here, as a member of the Communist Party or a participant.

What Mr. Doolittle undoubtedly had in mind in responding to the Chief Justice's question was that the subcommittee made reference to the fact that there was some information which it had which caused it to summon petitioner but there was none, so far as we know, so far as been disclosed on the record here.

Mr. Morris, at the trial, testified that there was some such information.

We sought to cross-examine.

We sought to get it by subpoena.

We sought to get it by direction from the Court.

We were denied any opportunity to cross-examine as to the information or to get it by direction of the Court.

We did not waive our rights.

At page 117 of the joint appendix, appears our request made to the Court after Mr. Morris testified that he'd be directed to bring the information in.

The Court denied that request.

We said we wanted the information in order to test the veracity of the witness.

Mr. Morris' veracity could not be tested by us.

Now, in response -- with reference to Mr. Justice Whittaker's reference last week to the Draper and Caroll cases, let me make it plain.

That, had the unnamed informant been named, had we then had an opportunity to call him, it may well be that we could not have asked Mr. X anything relating to the truth of the information he had presumably given Mr. Morris.

It may well be that the competence of that information as proof of guilt, if it were, of the petitioner might not have been brought in issue, but we certainly should've been permitted an opportunity to test whether in fact Mr. Morris was telling the truth, whether in fact there was such information communicated to him by telephone and in meetings.

And, if there was some information, we should've been given an opportunity to find out from Mr. X, the unnamed informant, whether this was the Liveright whom he mentioned when he talked to Mr. Morris, whether perhaps it wasn't another Liveright that he had in mind.

This is what we were denied.

We were denied an opportunity to test the existence and the reliability of the information presumably given to the subcommittee, not its competence as proof of guilt.

Now, if we are not going to be given that right, if petitioners in these cases are not going to be accorded that right, then any investigation of any person can be justified merely on the ipso dixit of a Chief Counsel of a Subcommittee and of the self-serving avowal by a Committee that its investigation is legitimate and bona fide.

There is no other way we know of making a showing such as today, for the first time, not on their briefs, the government would impose on petitioners a strong and substantial showing that there was no basis for the calling of this man.

We don't have a case here, such as Mr. Shelton fortunately had, where someone had crossed out the name Willard and written in the name Robert.

We have a case here where the subpoena was directed toward Herman Liveright.

Unless we are given an opportunity to test the veracity of the government's witness who testified in chief to test whether in fact there was such information in existence, a fundamental question, we are being denied the rights accorded all defendants in all criminal trials.

Now, turning to the question of subject matter under inquiry, here again, as Mr. Fanelli made it clear, it was the case in Russell, we have a shifting of the nature of subject matter under inquiry from stage to stage of this litigation.

And, for the first time in this Court, we find the definition of delineation of subject matter that you'll find in the brief.

You'll see it nowhere else below.

In the Court of Appeals, the government counsel took the position that this was part of the investigation into the Communist infiltration into the Press.

Here, the government, apparently, abandons that suggestion.

In the trial court, the government prosecutor said this.

He said the powers this Committee had on the business it was investigating was the entire breadth of its powers under Resolution 366, and at no time has this since been narrowed down to any particular subject such as a topic or a particular geographic location or a particular and narrower activity.

There is no such thing as a matter under inquiry, anything more narrow than the full powers of the Committee.

That was the testimony of Mr. Morris that apparently was the ruling of the trial court because the trial court did not particularize as to any subject matter, although it found the indictment questions pertinent to the “subject matter under inquiry before the Committee at that time.”

We then are brought back, inevitably, to Resolution 366, this broad resolution, this vast resolution about which I know no better characterization than that offered by one of the champions of this subcommittee -- the Internal Security Subcommittee.

Its former Chairman, Senator Jenner, who certainly knows, more than I do, what the subcommittee was engaging in, in the years when Senator Jenner was a member and a Chairman of the subcommittee.

And, Senator Jenner, on the Floor of the House, as we quote him in our brief, had this to say about the powers of this subcommittee, about the Resolution 366.

He said Resolution 366 authorizes the subcommittee to look after the Internal Security of the United States, but it must be realized that it is hard to draw a line indicating where the subject begins and where it ends, and I suggest that if Senator Jenner, a --

Justice John M. Harlan: Is that in your brief?

Mr. Harry I. Rand: That is in our brief, and that -- it's in our brief in the quotations in our brief.

I don't know at what page but this is 100 Congressional Record 843.

And, if Senator Jenner, himself, could not determine where the subject began and where it ended, I suggest that Mr. Herman Liveright, a mere layman, likewise, should not be required to have determine where the subject began or where it ended and I suggest that a trial court, in measuring the necessity for calling a witness before it as against his rights to remain silent, could not determine where the subject began and where it ended, particularly when the government refused to say at the trial.

Thank you.

Print this transcript Transcript:

Argument of Leonard B. Boudin

Chief Justice Earl Warren: Number 12, William A. Price, Petitioner, versus United States.

Mr. Boudin.

Mr. Leonard B. Boudin: May it please the Court.

The petitioner, William Price, a reporter at the time on the New York Daily News, seeks review here of his conviction by the Court in the District of Columbia, Judge Keech, sitting without a jury under 2 U.S.C. 192.

This is part of the same series of hearings, which are involved in the three preceding cases other than -- other than Russell and which was also the subject of an opinion by Judge Youngdahl in United States against Peck which deals with and disposes in our favor of the constitutional issues and which I will not discuss until the end of my argument on the more technical aspects of the case.

Now, the petitioner here was called in both executive and public sessions.

The executive in December 1955, a public in January 1956 and the questions that were put to him were over a wide reach, covering such matters as his activities in a labor union of these paper men, that is his running for office, his knowledge of a particular young woman whose name appears in the record, his traveling as a pilot in an airplane, he'd been in the Navy in Latin America after the war and finally the usual question of Communist Party membership and meetings.

This was a very wide range as Your Honors will see when I point out that the subject matter of the inquiry was never indicated to this petitioner.

But what is particularly significant since the petitioner here has been indicted and convicted not for his appearance in December, 1955 but his appearance in January, 1956 is that the questions put to him, as developed by Mr. Rand upon the trial of his trial counsel, were identical in the executive session of December, 1955 and the public session of January, 1956, raising, therefore, the question which we do raise here Mr. Justice Harlan as to the legislative purpose of a second inquiry which is the only subject here of this appeal.

Now, I may say here that Your Honors will read the record of the executive as incorporated here and the public hearings to see that the petitioner denied all wrongdoing because various insinuations were made by the Government counsel -- by Committee counsel.

And Your Honors -- Honors will note that the petitioner did raise the question of legislative purpose not relying merely upon the arguments of conscience discussed by Mr. Justice Stewart in the Deutch case, did say why am I here, did say there is no legislative purpose and at no point, not only was the subject of -- not only was pertinency not showing, but at no point in this hearing was the subject matter indicated to the petitioner.

Now, the petitioner, after being indicted by a jury composes as in the other cases, a majority of whom the Government employees, made the motions to dismiss the indictment which is set forth in the record and a motion was denied and also made -- served a subpoena duces tecum upon the Committee for the purpose of showing that there was no probable cause and no legislative purpose for subpoenaing him.

And that motion -- that subpoena duces tecum was quashed and the motion was denied and the petitioner proceeded to trial.

At the trial, counsel for the Government insisted that the subject matter of inquiry was the total strategy and tactics of world communism and counsel for the Committee, to the extent that he testified on the subject and as the Government says correctly in its brief somewhat ambiguous testimony, the testimony that Government relied on, counsel for the Government again said it was world communism generally, but there is an exhibit introduced namely the full Committee hearings in which Senator Hennings as Your Honors will recall and one other Senator talked about the investigation of news media and so the Government here on appeal says, “No, it was not an investigation the world communism really.

It was an investigation of media”, although that is not consistent with Mr. Sourwine's testimony on this point at the trial.

The trial court in this case, whatever it maybe done and I don't recall what the activity the trial courts in these other cases, made no finding as to the subject matter of the inquiry except stated it was a proper inquiry and the Court of Appeals made no statement as to the subject matter of the inquiry so that we are compelled to rest upon these divergent points of view expressed by the Government here and by Mr. Sourwine below and by the record itself.

But, Your Honors will recall what I said before that at the time of the Committee hearing, assuming luminosity as that term is now used here to be important, the witness was not told the subject matter of the inquiry.

Now, we raise here in this short argument, the following points principally.

First, was there reasonable cause or legislative purpose or justification for calling Mr. Price, either at the executive session and certainly at the public session, which is the subject of his inquiry?

Secondly, assuming that the Government made or attempted to make a showing of such legislative purpose, was defense counsel here as in Liveright, permitted adequately to cross-examine Mr. Sourwine, the sole witness on this point and thirdly, was the subject matter of the inquiry shown to the witness at the time of the hearing?

I may not reach this third point where the several others which are dealt with in our brief.

Now, as to probable cause, this is one of those unusual cases in which the Committee counsel admitted that they had no evidence placing Mr. Price in the Communist Party.

In most cases, the claim was made, sometimes it's supported, here no such claim is made.

What then was the reason for calling Mr. Price, a reporter on a daily-news internationally known for its conservative events, if I may use that term?

Three reasons are given and we suggest to the Court that none of these reasons separately or cumulatively deserves -- deserve a subpoena by any rational approach.

First, that Mr. Price ran as a candidate on a newspaper guild slate for office which Mr. Sourwine, without a single word of evidence, a single claim of support except something like public repute said was a Communist slate.

I passed over the question of the effect on trade union elections if a man who runs for office can therefore be subpoenaed and come down merely to the question or whether that was a reasonable thing here.

The second reason given by Mr. Sourwine is that the petitioner, the petitioner here knew this young woman whom that -- whom Mr. Sourwine testified was a Communist courier.

And these are very serious charges to make against anybody particularly by Committee counsel under the public privilege and I point out to Your Honors that there is not a word in this record to justify that kind of defamatory statement made as a justification for calling a newspaperman on the daily news.

More, more, the record here shows that the lady involved had testified before the same Committee six -- some months before and had not asserted privilege in answer to questions put to her.

This is Mr. Sourwine's statement at the end of his testimony, yet, this is argued as a reason for calling a newspaperman because he had some relationship rather with a young woman, not a reasonable thing at least for congressional committee.

Thirdly, and this I think is the most disturbing, Mr. Sourwine's said to Mr. Price, he believes, he didn't know, had joined in a statement printed in a Daily Worker, a Communist newspaper if Your Honors please, in defense of the Communist Party.

Now, it is true, let's assume that, it is true that the statement as printed by the House of the American activities Committee in a volume which unfortunately is not in the record does say text to statement in defense of Communist Party, but if Your Honors will read the text of that statement and see who the signatories are, Your Honor will see that it was a 1941 statement, an appeal to the President of the United States and the Congress, not to the Daily Worker which happen to reprint it as they had a right to do I assume, and that wasn't our responsibility, an appeal to the President and Congress against the possibility of the Communist Party might be declared illegal and against, although what could this could do in this situation, I don't know, against such things as the Oklahoma (Inaudible) which as Your Honors may recall was being applied in 1940 to various members of the Communist Party.

This appeal is a most rational, honest decent appeal that anyone could -- could read as witnessed the fact that is, the signatories include Zechariah Chafee, Hocking, just was admitted to the Academy of Arts and Letters, one of a series of great honors, Professor Lehmann of the Union Theological Seminary, Francis Fisher Kane of Philadelphia, whom Your Honors know, the great lawyer.

These are the kind of people. It is very likely that Mr. Price who said he didn't recall having signed this, never signed it at all which he probably ought to be ashamed because the William Price here is the William Price of Swarthmore, Mr. Price has never been to Swarthmore, but this accident and as I say these were true and not justifies subpoena and with one of the three things that led to this man against whom the Committee had no information being subpoenaed.

Now, I come down to the question of let's assume all these, however, was very weighty and the committee did have this information and there might have been some evidence as to a curia, although Mr. Price's testimony on the curia issue and an involvement any conspiracy is very explicit in his denial.

We served a subpoena on the Government for the purpose of producing all information it had with respect to this young woman because it happened that she had testified before the Committee and completely exculpated herself and we asked for all information with respect to Mr. Price.

As I said before, the subpoena was quashed and when Mr. Rand attempted on penetrations to get information from Mr. Sourwine to justify what he had said on his direct examination to justify the calling of Mr. Price.

The trial court upheld his refusal to answer and the Government here says, “Well, the trial court only upheld the refusal to answer ten questions as if the number of questions was to be determined over the constitutional right to cross-examine a witness with respect to the testimony that he had given on direct.

This is no longer a First Amendment problem.

This is a right -- is a normal right of the defendant in a criminal case to cross-examine with respect to what has been adduced on direct.

The trial judge merely said this is confidential testimony and the Government added to that upon this appeal a new argument and since probable cause says that Government was not an element of a crime, therefore we did not have a right to examine it because it was only an element of the right to call the witness.

Now, if the Government will read Chief Judge Learned Hand's opinion in Andolschek which Mr. Rand referred to and United States against Copeland, the Government will see that whenever the Government has the information bearing upon the guilt, innocence or the right to prosecute a defendant or the right to introduce evidence against the defendant then the Government no longer has the right of confidence with respect to its records if they have any bearing on that point.

And Judge Learned Hand in the United States against Copeland where Your Honors denied certiorari which did not involve an element to the crime but the question of whether the wiretap -- the records of the Government -- wiretapping records had led to the arrest of the defendant in that case.

Very much like this in the sense sort of a reasonable cause except they're involved with the Communications Act.

Judge Learned Hand said, “It is however one thing to allow the privileged person to suppress the evidence and toto coelo, another thing to allow him to fill a gap in his own evidence by recourse to what he suppresses.”

Yes, Mr. Sourwine was -- was stating what he had as facts and would not allow us to go in to it and Judge Learned Hand said, “The prosecution must decide whether the public prejudice of allowing the crime to go unpunished was greater than the disclosure of such “state secrets,” that was espionage Your Honors, you'll recall, such state secrets as might be relevant to defense, that was a felony, that was espionage, this is a misdemeanor.

And finally, Judge Learned Hand said and this Court knows this language I am sure, “Few weapons in the arsenal of freedom are more useful than the power to compel a Government to disclose the evidence on which it seeks to forfeit the liberty of its citizens.”

Now, we come last in the next two minutes to the question of luminosity.

Did we ask -- did we raise the issue of pertinency, the issue of right of the Committee to ask?

The Government says, “We didn't use the word “pertinency.”

Well, I submit that neither did Mr. Watkins as Your Honor will see buried in his statement was a reference to the fact that he hasn't -- see how these things are relevant, but basically, he was challenging the power of the Committee.

I'm sure this Court did not mean in the majority opinion written by the Chief Justice to lay down a strict rule that the word of pertinency must be used otherwise the Committee has no duty to state the subject matter or the respects in which the matter is pertinent.

And in Deutch, there Mr. Justice Stewart's opinion dealt with a very narrow thing, a man came forth and said, “My conscience does not let me answer the information.”

He didn't challenge the power of the Committee.

We challenged the power of the Committee when we said there is no legislative purpose in your inquiry committee, so to intact where Judge Youngdahl acquitted Seymour Pat.

Here, we rely upon what the Chief Justice said in Quinn against United States, Mr. Justice Harlan concurring in that aspect of the Court's opinion part 1 where the Chief Justice said, involving the Fifth Amendment, “There is no ritualistic or talismanic formula necessary to invoke the Fifth Amendment” and what the Chief Justice said there we apply here.

If the Committee was in any doubt as to subject matter -- as to the meaning of the witness' objections stated in five different ways, “All it had to do” as the Chief Justice said, “was to ask the witness whether he was challenging the Committee's power,” but nobody was under any doubt as to whether the witness was in fact challenging the Committee power.

Your Honors will read this record.

Your Honors will see that what the Committee was concerned about was one thing.

“Mr. Price,” they said, “Are you sure you're not pleading the Fifth Amendment?”

That was all I wanted to know.

They didn't care whether he was pleading pertinency, legislative purpose, Committee jurisdictional power, just to be sure that the Fifth Amendment was not being involved here.

I don't go in to the question of Committee's motivation on that point.

I merely say hereto the Committee was very able to see that there was a direct challenge to its power and in this record with the varied number of subjects covered in the Committee hearing, the Committee had to tell the witness what the subject matter was.

I may add one more footnote, what I have said is a dependence upon Deutch, the dependence upon the Chief Justice's opinion even if narrowly construed in Watkins, but I do not think that a witness whatever maybe his duty to state the subject matter -- to state his objections to -- on pertinency grounds when pertinency is a problem has any duty before a congressional committee if the Committee is silent upon the principle substratum of this investigation namely, subject matter.

When the Committee states subject matter, the witness maybe under certain circumstances, I'm not prepared to -- can see all cases now may waive, but the witness can never waive his right to know what the Committee is investigating.

And if the Court will read sometimes again as it must occasionally -- such cases as Sinclair, the Court will see that in Sinclair that there is no question as to what the Committee was investigating in detailed discussion that it had with counsel who appeared and was permitted to talk if I recall him there.

The Committee indicated subject and finally, the Court will examine the indictment in Sinclair.

It will see a 22-page indictment in detail, explaining the subject matter of the inquiry.

I don't wonder that in this case those subject matters of inquiry were indicated in the indictment because none was stated in the Committee hearing.

Chief Justice Earl Warren: Mr. Doolittle.

Argument of J. William Doolittle

Mr. J. William Doolittle: Mr. Chief Justice, may it please the Court.

I will try to deal with all the points covered by the petitioner and first to the point that he dealt with in most detailed last and that's the subject under inquiry and pertinency of the questions to that subject.

Now, it is the Government's contention that the subject under inquiry was in fact proved to be Communist infiltration into the news media.

And the basic reasons as far as the hearings as a whole are concerned are those that I stated in arguing the Whitman case.

Here, however, it is very important for the Court to realize that at trial counsel for the petitioner repeatedly conceded that the subject under inquiry is precisely what I've said that it is, Communist infiltration into news media and we've set forth the citations and some of the quotations of those concessions at pages 27 and 28 of our brief in this case.

Moreover, the whole premise of petitioner's argument which he makes most vigorously in his brief that this whole hearing constituted an unwarranted attack on the free press.

The whole premise of that argument is that these hearings were in fact concerned with Communist infiltration into news media.

After this, I should like to advert to one point that petitioner does make in his brief that is a seemingly inconsistent remark by subcommittee counsel part of which is quoted in the petitioner's brief at page 25 here and which is set out in more detail in the Whitman brief at page 22.

That statement which as I say is referred to by counsel here and has been referred to by counsel and some of the other cases, is to the effect that Mr. Sourwine, the subcommittee counsel, denied that infiltration of the press was the subject under inquiry.

Now, to understand that remark it must be appreciated that there had been public statements to the effect that these hearings were an attack upon the free press.

The subcommittee was most sensitive to this charge as I think we would all agree and rightly should be.

And their concern was evidenced by statements that I have referred to in prior arguments made both by the Chairman of the Committee and by Senator Hennings particularly at page 1588 of the hearing record.

Now, it is quite clear from the context that in making of the remark that counsel had referred to here, the subcommittee counsel thought whether he was reasonable and thinking so or not, but the subcommittee counsel thought that the Committee was then being charged with an attack on the free press and his denial goes to that.

It's particularly obvious that this must be so since he went on to state that the chairman has already told you that that is not the case.

Well, the only thing that the chairman had already told anyone was that this was not an attack on the free press.

I might point out that in any event, petitioner was not present when this remark was made.

It goes only to the question of what the subject under inquiry in fact was.

Now, as to the appraisal of the petitioner, that raises of course of the subject matter and pertinency, our contention is that the witness did not object to this at the hearing and that under both Watkins and Barenblatt, a witness must make a specific objections on these grounds in order for it to be effective.

The statement that he made, again, a lengthily legal memorandum, was clearly insufficient under Barenblatt where roughly the same kind of legal memorandum was involved.

And we understand from what petitioner says at page 29 of his brief that in essence he conceives that this is so.

I read the bottom of page 29 of his brief as largely conceding that no objection was made.

In any event, we believe that he was satisfactorily appraised.

The witness ahead of him who appeared was a newsman, who was questioned about his party affiliations and about infiltration into the typographical union.

The petitioner was asked some preliminary questions concerning -- concerned primarily with his newspaper background.

As far as the pertinency of the questions are concerned, counsel at trial conceded that at least counts one, two and eight are pertinent to an investigation of communist infiltration of news media and that concession appears at pages 291 and 292 of the trial transcript in this case.

Now, on the basis for calling the petitioner before the subcommittee, petitioner raises this question generally and also in a context of his effort to subpoena subcommittee records not only on petitioner but on other -- on one other person, and also to his efforts to cross-examine with respect to confidential informants.

Now, we contend that neither at the hearing nor at the trial did petitioner rebut the presumption of regularity in the subcommittee's calling the petitioner so as to bring its basis for doing so into issue.

However, we do believe that the record is perfectly plain that petitioner was not called as a result of indiscriminate dragnet procedures.

As counsel has pointed out, subcommittee counsel gave sworn testimony as to the information on the basis of which petitioner was called.

Now, I would like to point out that counsel did omit a little bit of the information that counsel testified was a part of the basis for he's being called.

We -- incidentally, the initial -- the basis for he's being called in the first place as testified to by subcommittee counsel at trial is set forth on page 5 of our brief.

And I would want to point out that among the things that were involved were information that petitioner after returning from war time naval service had flown an airplane on a trip to Central and South America during which time he is accompanied by a courier for the Communist Party.

Then subcommittee counsel as -- as counsel for petitioner has pointed out, petitioner was called before an executive session and then after some time had elapsed, he was called before an open session.

Now, on pages 6 and 7 of our brief, we have set forth the information or I should say the reasons stated by subcommittee counsel at the trial as to why petitioner was recalled in open session after he had refused to answer questions in executive session.

And in essence, the reasons there stated are that the Committee had had experience in the past that some times a witness after being -- being given a chance to think it over did decide to answer the questions and that from the very -- the demeanor of the witness, they felt that they had reason to believe that he had information, that he might be willing to disclose at a later time, as I say this is set forth on pages 6 and 7 of our brief.

Subcommittee counsel did submit to cross-examination on such things as when the various information that the subcommittee had that was received and in what form, but here again, while it appeared that the Court might be willing to allow cross-examination along the same general lines, the Court did draw the line at the request of the Government that requiring the subcommittee counsel to disclose the confidential informants.

Therefore, the information on which the subcommittee did base its calling of the petitioner is as an in prior cases substantially the same as this Court did regard in Barenblatt as having been sufficient to rebut the notion that petitioner there was called as a result of any indiscriminate dragnet procedures.

Now, one point that has been raised and a number of these cases that has not yet been dealt with and I should like to deal with briefly at this point is one of the indictment points and that is the question of whether or not the indictment had to allege willfulness because that issue is in a number of these cases.

Now, the statute that is involved here, 2 U.S.C. 192 does not contain any statement, willful or otherwise, concerning state of mind that is required to be proved in these cases.

However, this Court in the Quinn case, 349 U.S. 155 said that it is a deliberate intentional refusal to answer that is required in these instances and the indictment in this case as in several of the others alleged unlawfully.

Now, the only court which is the Court of Appeals of the District of Columbia that has directly focused on this question has repeatedly said that this is enough, that is to say that the word “lawfully” is enough, particularly, particularly, since the very word “refusal” which of course is in all of these, itself imports a deliberate intentional act now which of course is what is required under the Quinn case.

Now, petitioner has in oral argument hinted at, but in his brief exten -- extensively argued his contention that this hearing and the hearings of which it was a part constituted a violation of the First Amendment because there was an investigation of the press.

Now, the fourth estate is not immune to investigation simply because it is the press.

Other fields that are protected by the First Amendment have been held subject to investigation such as education in the Barenblatt case, propaganda in the Braden and Wilkinson cases.

And the statements of this Court made in the Barenblatt case I think are particularly applicable.

I have adverted to them before, the notion that an educational institution is not a constitutional sanctuary from inquiry in to matters that may otherwise be within the constitutional legislative domain merely for the reason that inquiries made of someone within its walls.

And further that, we think the investigatory power in this domain is not to be denied to Congress solely because the field of education is involved and we submit that no less is true of the press.

Furthermore, in this case, there is simply no basis for the assertion that it was the free press as such that was being investigated rather than communist infiltration in news media.

The chairman and Senator Hennings expressly disavowed any purpose to investigate the press as such.

Their statements at -- in the hearings at pages 1588 and 1717 to 1718 are most impressive in that regard.

And I note that this Court in the Barenblatt case relied on similar statements to answer the contention that the education that the content of the classroom as such was being investigated.

The questions that were asked in these hearings of petitioner and of the other witnesses that appeared, probed in to the witnesses' positions, their activities, their associations, not what they wrote, not the content of the newspapers for which they worked.

The hearings themselves were pursuant to Winston Burdett's testimony that the Communists had in fact infiltrated news media and the Committee was following up that information.

Finally, the Court of Appeals found to the contrary in this case, that's at page 4 of the record, by reference to its opinion in the Shelton case which in turn is at page 242 of the Shelton record where it said, “This inquiry was in no sense an investigation into the press as such, but into the question whether the constitutionally guaranteed freedom of the press was being used to undermine that very freedom and the foundation on which it rests.”

Now, one further point is made with respect to the authority of the subcommittee in this case and that is the contention that whatever the reach of Senate Resolution 366, it does not -- Congress did not intend that news media be reached.

Of course, it was similarly contended in the Barenblatt case that Congress could not have intended that a subcommittee or a committee be authorized to investigate education.

And of course, the Court rejected that argument for reasons that are equally applicable here.

There is no indication whatever that Congress intended to exclude the press from the authority that it gave to the Senate Internal Security Subcommittee and certainly that is an area that is no less sensitive than education.

Furthermore, the Senate clearly approved of this particular phase of the subcommittee's work.

The subcommittee had conducted hearings on Communist activities in radio and television and non-Communist propaganda, these are cited at pages 26 and 27 of our brief in the Liveright case.

Furthermore with full knowledge of the instant hearings which have been reported to them in Senate Report 1385 of the 84th Congress, Senator -- the Senate appropriated a large sum with which the subcommittee was to continue these very hearings.

Now, we submit that there cannot be any serious contention that these hearings were authorized by the Senate.

Thank you Mr. Chief Justice.

Chief Justice Earl Warren: Mr. -- Mr. Doolittle, I --

Mr. J. William Doolittle: Yes, sir.

Chief Justice Earl Warren: I've been -- just been looking at the testimony of Mr. Sourwine and I'm at page 51 in this appendix and the middle of the page is Mr. Sourwine, let us start over again.

Are you able to tell us of your own personal knowledge of any information that the Committee had on Mr. Price prior to subpoenaing him to appear before if -- now, then he goes on until all of these things seem about the courier and about the signing of this statement and so forth.

Is that -- is any of that new matter and if so, which is new matter so far as the petitioner is concerned and what was brought out in his presence at the -- at the hearing of the Committee, would you just take it now from --

Mr. J. William Doolittle: Mr. Chief Justice, none of the material that came up in trial was -- as far as any contention that we've ever heard came as a surprise to the petitioner.

This was all going into in the hearings.

Chief Justice Earl Warren: It was all --

Mr. J. William Doolittle: This information was not new as far as the petitioner is concerned.

Chief Justice Earl Warren: This was all done at the Committee hearing in the presence of the -- of the petitioner?

Mr. J. William Doolittle: Yes sir, in term -- and in terms both of information stated to be in the possession of the subcommittee and in terms of the questions that were asked, that's right.

Chief Justice Earl Warren: Can you tell me if Mr. Price who signed that -- that statement as you say in defense of the Communist Party, was that in fact this Mr. Price?

Mr. J. William Doolittle: There's no in -- there is no definite indication that it was, but -- there's no -- there's no clear indication one way or the other.

Chief Justice Earl Warren: Is there any indication that it is not?

Mr. J. William Doolittle: No clear indication except that he had -- he has --

Chief Justice Earl Warren: Well, I understood that -- I understood from Mr. Boudin that it showed that it was a man from Swarthmore County --

Mr. J. William Doolittle: Well, I'm talking about what -- I'm talking --

Chief Justice Earl Warren: -- because this man had never been there.

Now is that -- do you -- don't count an indication?

Mr. J. William Doolittle: Well, the indication yes sir.

I'm saying that the record itself does not clearly reflect one way or the other.

Chief Justice Earl Warren: What is your present judgment as to whether -- whether this is the Mr. Price who signed that statement or not?

Mr. J. William Doolittle: I think it's probably a fair way to read the record that it is not Mr. Chief Justice.

Chief Justice Earl Warren: But still that testimony was produced against him on his trial and he was denied -- denied the right to cross-examine concerning this, is that right?

Mr. J. William Doolittle: Well, this was brought forward as one of a number of items and I think you'll see that in the context, the one of the least important items -- a number of items that the subcommittee had.

Chief Justice Earl Warren: You do not think that would be important before an American jury at this -- at this particular time?

Mr. J. William Doolittle: Oh, it might very well be.

Of course there's no -- there was no jury in this case Mr. Chief Justice.

Chief Justice Earl Warren: -- making a defense of the Communist Party, you don't think that would affect him very much?

Mr. J. William Doolittle: It conceivably it might but as I say there was no jury.

Chief Justice Earl Warren: Conceivably it might -- don't -- don't you -- don't you think that it would?

Mr. J. William Doolittle: I think it might.

Well again, there was no jury in this case and furthermore --

Chief Justice Earl Warren: Oh, I thought this was the one there was a jury?

Mr. J. William Doolittle: No sir, no jury.

Chief Justice Earl Warren: You don't even think it would affect the judge?

Mr. J. William Doolittle: I would hope not sir.

Justice Felix Frankfurter: Who was the judge?

Do you know?

Rebuttal of Leonard B. Boudin

Mr. Leonard B. Boudin: Judge Keech, Your Honor.

Chief Justice Earl Warren: Mr. Boudin.

Mr. Leonard B. Boudin: Before going back to the questions put to my friend Mr. Doolittle on which my answers might differ as to the facts.

I don't want to leave the constitutional issue to my brief.

I do want to say that we do challenge the power of the Committee to investigate the press and we think that both Judge Youngdahl, speaking for the judiciary and Mr. Walter Lippman speaking for the press, put their finger on the real problem because Mr. Lippman pointed out --

Justice Felix Frankfurter: Where is this -- where is this (Voice Overlap)?

Mr. Leonard B. Boudin: This appears at page 40 of my brief Your Honor.

Justice Felix Frankfurter: Is he a witness?

Mr. Leonard B. Boudin: No, he was not a witness.

Justice Felix Frankfurter: He is just -- news paper man --

Mr. Leonard B. Boudin: This is just an observation by a well-known public commentator which I think is sound to some of the arguments made by the Committee without factual support.

Justice Felix Frankfurter: Yes but Mr. Doolittle is here to be cross-examined and Mr. Lippman is not.

Mr. Leonard B. Boudin: I understand that but I'm -- I'm here to be cross-examined.

I am stating Mr. Lippman's view.

Justice Felix Frankfurter: But I don't mind you're stating the views of Mr. Lippman as your own.

Mr. Leonard B. Boudin: I will adopt --

Justice Felix Frankfurter: Where do -- we're getting off pretty far when every -- every news column has made a relevant argument with an inference it's almost evidentiary.

Mr. Leonard B. Boudin: I will state them as my own.

Justice Felix Frankfurter: With all due respect to Mr. Lippman, whom I've known for the rest of almost my whole life.

Mr. Leonard B. Boudin: I will then adopt them as my own avowing to his knowledge when I say he said, “In what form of generation had ever before in our history has the Government claimed the power to examine and pass judgment upon who shall work on newspapers.”

Now, when Senator Hennings of whom I -- I am a great admirer was the late Senator Hennings --

Justice Felix Frankfurter: You mean you are and he was --

Mr. Leonard B. Boudin: I was always a great admirer and he was--

Justice Felix Frankfurter: You are --

Mr. Leonard B. Boudin: Yes, I regret to say.

When Senator Hennings tried to separate himself a little bit from this subcommittee upon which he found himself, I think for the first time of his life, the Internal Security Subcommittee, he having devoted himself to the protection of civil liberties on another subcommittee, this judiciary committee when he said this is not an effort.

This is not an attack upon any one newspaper, but an effort on the part of this Committee to show an attempt -- I'm leaving out a few words, in the Communist Party, the influence or to subvert the American press.

Now, I suggest Your Honors that the remark was made that an investigation of the press is proper in order to protect it.

It's exactly the thing that will undermine a free press and whenever the Government moves in, whether in this Country or the Soviet Union or in Nazi Germany or elsewhere for the purpose of determining what the press shall say or who shall work on it, it is subverting what we understand in this country to be freedom of the press.

And it may look better when it happens to the United States and the Senate Committee uses these words, “But it is no better no matter what country under which it is done.”

Now, I turn to the second point in the last couple of minutes and say to Your Honor's question, Mr. Chief Justice, no information was given to Mr. Price when he appeared before the Committee as to charges against him, questions were put but he was not told.

I think I'm fair in my reading of the record.

We have information that X was a communist courier and went with you on this trip.

Secondly, when Mr. Price -- when Mr. Sourwine appeared at the trial, Mr. Sourwine never claimed that any such information had been given to Mr. Price.

I want also to indicate Your Honors that we do not see how this whole series of cases like Grosjean and Rumely and Hannegan are consistent with what was done in the present situation.

And the time is too short for me to analyze the argument but we refer Your -- Your Honors to our briefs on this point on the First Amendment.

Thank you Your Honors.

Print this transcript Transcript:

Argument of Gerhard P. Van Arkel

Chief Justice Earl Warren: Number 10, Alden Whitman versus United States.

Mr. Van Arkel.

Mr. Gerhard P. Van Arkel: Mr. Chief Justice, may it please the Court.

The petitioner was indicted on 19 counts for declining to answer certain questions of the Senate Internal Subcommittee put to him on January 6, 1956.

He was tried without a jury.

He was convicted on all counts.

He was sentenced to a term of 6 months suspended prison sentence and a fine of $500.00.

On appeal, the Court of Appeals for the District of Columbia affirmed the conviction and Your Honors granted certiorari.

At the time of his appearance before the subcommittee on internal security, the petitioner appropriately raised questions concerning the authority of the subcommittee and concerning the pertinency of the questions which were asked him, objections which were renewed throughout the course of his interrogation.

He answered fully all questions concerning his own acknowledged membership in the Communist Party between the years 1935 and 1948 and made it entirely clear to the committee that all of his activities have been lawful, political activities when engaged in.

He declined, however, to answer any questions which sought the names of persons who have been associated with him in the Communist Party or from which their identity might readily be ascertained.

At his trial, the petitioner took the stand in his own defense; he testified at some length concerning the reasons which had led him to the depths of the depression in 1935 to become a member of the Communist Party.

The fact that his studies in history --

Justice Felix Frankfurter: How old was he then?

Mr. Gerhard P. Van Arkel: He had just graduated from college, Justice Frankfurter, Harvard incidentally Mr. Justice.

Justice Felix Frankfurter: In 1935?

Mr. Gerhard P. Van Arkel: In 1935 -- well, I believe he graduated in '34 in the event he was comparatively recently out of college.

He explained that his studies of history had convinced him that third parties had exercised an energizing influence in American political life.

He described at some length or offered to prove his activities within the party which were the usual rather humdrum activities attending public meetings, distributing leaflets, selling copies of the Daily Worker and the rest of it.

He made it clear that his membership in the party had not been clandestine, that it was known to his friends and associates, that he engaged in no conspiratorial activities and that the same was true so far he was aware of those who were associated with him in the party.

Indeed there is, if the Court please, a striking parallel between the reasons for his entering the party and his activities within it and those of (Inaudible) which Your Honors held were insufficient to warn his exclusion from the bar.

He also testified at length concerning his growing disinterest in the party; his eventual dissatisfaction with it and his reasons for leaving the party in 1948, some 8 years prior to the time of his interrogation by the subcommittee.

He was asked at trial to state his reasons for declining to answer the questions which had been put to him and he responded as follows; I read from page 9 of our brief and I omit some portions of his answer.

He said, ?I felt that by I being compelled to answer the questions which I decline to answer that I would be cast in the role of an informer.

Unlike most Americans, I have been brought up to despise and deplore the tattletale, the squealer and the informer.

I felt I would be violating the principles and tenets on which I have been brought up, if I were asked to assume that role.

I felt that I knew that I have engaged only during the period of Communist Party membership only in lawful activity.

I knew that my associates had engaged only during the period on Communist Party membership only in lawful activity.

I felt that as a result of what I knew to be the case, that if I were to name names to be an informer, that the result would be terrible trouble on the shoulders and the heads of people to were as innocent as I of any wrongdoing.

I was confirmed in this belief by the fact that I knew my own knowledge of people who had lost jobs, whose careers have been wrecked; whose families have been upset, whose children have been dislocated purely because I have been exposed to the committee by somebody for what in its own time had been perfectly legal activity.

And I felt that it would be a mean and ignoble thing if I would be defective; an agent to bring destruction on people.

I knew that of course it would be possible to save my own skin by giving the committee what it was pressing me for; namely the names of other people, but I felt that I couldn't in all conscience do this because it seemed to me that one of the great heritages and privileges that I had as a citizen in a democracy was that of personal responsibility for my acts.

I felt certain as a matter of inner conscience here, that I could not disclose the names of innocent people in order to be a possible benefit to myself.

I realize that as a result, I would undoubtedly have to stay on trial for contempt.

The likelihood arose of going to jail which I am not anxious to do, but I'm here less anxious sir to become in my own eyes an ignominious person and I feel deeply that I would utterly lose my self-respect were I to violate the terms of my own inner integrity.?

Justice Mr. Justice Harlan : What was the sentence?

Mr. Gerhard P. Van Arkel: A suspended sentence of 6 months in prison with $500.00 Your Honor.

Now if the Court please, I should like to leave the numerous legal issues which are raised by this case to our brief in order to discuss it solely in terms of the balancing test.

Justice Potter Stewart: The statement that you just read was made by this petitioner at his trial?

Mr. Gerhard P. Van Arkel: At his trial Your Honor; he took the stand and testified and I read his testimony at the trial.

Justice Felix Frankfurter: Did he take similar ground before the committee?

Mr. Gerhard P. Van Arkel: Yes, he did Your Honor.

He couched it in terms of the authority of the committee and in terms of pertinency of the questions but he made it entirely clear that would and he did answer all questions except those which sought the names of his associates or information from which they could be identified and it is clear enough that this is the line which he drew at the time of his appearance --

Justice Felix Frankfurter: I understand that.

Did he state to the committee he's scrupulous against --

Mr. Gerhard P. Van Arkel: He did Your Honor --

Justice Felix Frankfurter: -- making the line, not merely the legal grounds but the --

Mr. Gerhard P. Van Arkel: He did Your Honor; he did

Justice Felix Frankfurter: Do we have that from the record here?

Is it in this blue thing?

Mr. Gerhard P. Van Arkel: It's one in the blue thing Your Honor.

Justice Felix Frankfurter: What appeared before the Senate Committee?

Mr. Gerhard P. Van Arkel: Oh yes Your Honor.

It's summarized --

Justice Felix Frankfurter: I'm not questioning it, I just want to look at it.

Mr. Gerhard P. Van Arkel: Yes.

Your Honor will find that the language of the letter which he presented to the committee, the important sections of it are set out at page 21 of the record which you have there.

Justice Felix Frankfurter: The blue thing.

Mr. Gerhard P. Van Arkel: That blue thing; that is right Your Honor.

Justice Felix Frankfurter: What page is it on?

Mr. Gerhard P. Van Arkel: At page 21.

Justice Felix Frankfurter: Thank you very much.

Mr. Gerhard P. Van Arkel: Now at the outset of applying the Barenblatt balancing test, we're faced with a serious problem which has plagued this case from its very inception and that is that to know what the subject under inquiry was.

We have appended to our brief as Appendix A, a tabulation which shows what the subjects under inquiry in this case and its companion cases was asserted to be at various stages of this inquiry.

And Your Honors will readily see from that the other confusion and inconsistency which has followed this issue through this case.

This served to emphasize Mr. Fanelli's argument that unless the subject under inquiry is clearly stated in the indictment, the government is free at each and every stage of the case to change its position with respect to what the subject under inquiry was.

For the purposes of my argument here, I will assume that the subject under inquiry was that which the government now asserts it to be, noting that they have changed their positions since they filed their brief in opposition to certiorari and I will say only that which they now define as communist activities in news media.

Justice Mr. Justice Harlan : Did he make a pertinency objection before?

Mr. Gerhard P. Van Arkel: He did Your Honor, not only at the outset of the hearing but repeatedly.

If you'll look at page 4, page 7, Footnote 4 of our reply brief, you will find summarized there the numerous record citations to his objections on the ground of pertinency.

Now, as I say, I should like to contrast the fragility of the government's interest in getting answers to the questions which you asked with the urgent and impelling reasons of personal privacy which lead the petitioner to decline to answer these questions.

At the question under inquiry genuinely been the communist activities in news media.

The obviously pertinent question to have asked the petitioner would have been, ?Do you have any present knowledge concerning communist activities in news media??

Since this was not a question which sought the identity of others and since the petitioner had left the Communist Party some eight years before, the answer to that question would almost certainly have been, no.

Or the committee might have inquired, do you have any information about communist activities in news media since the passage of the Internal Security Act of 1950, the administration and enforcement of which it is one of the duties of the committee to investigate.

Again the petitioner would almost certainly have answered that question, ?no?; and what is significant about this case is that nothing which even remotely approaches those two possibly pertinent questions were put to him.

On the contrary, the committee promptly rummaged around in ancient history.

The first question they asked him which he declined to answer related in 1938, 18 years prior to this inquiry, and the most recent question which he declined to answer related to 1948, 8 years before the inquiry.

Now, we suggest to this temporal remoteness and which we would acquaint with these spatial remoteness on which Your Honor relied in Deutch, has in this case a certain special significance.

It might properly be said I think that 1950 marks a kind of watershed in the public and official attitude toward the Communist Party.

Prior to that time it was by and large regarded as another lawful political party.

In that year, this Internal Security Act was adopted, in that year Your Honors has decided American Communications Association against Douds and it was in that year that Korean hostilities erupted.

So we say that for the purposes of the Barenblatt balancing test, questions which relate to years prior to the 1950 must weigh much less in the scale than activities engaged in subsequent to that time.

Obviously, activities engaged in during this period will have far less impact on the national security than activities engaged in since not only because they are more remote in time, but also because they differ importantly with the three.

And we think it is important that all of the questions asked related to lawful political activity.

Now I'm of course aware that Your Honors have held that law -- inquiry in the lawful political activities on the part of these committees is proper, but Your Honors have not held to my knowledge that this is not a relevant consideration to bear in mind for the purposes of accomplishing the balancing test in Barenblatt, that is to say obviously there is a significant difference I would suggest in the standard of pertinency which might properly be applied, in the case of the congressional committee investigating a present plot to blow up the White House and questioning of the kind here involved which seeks only information concerning remote, lawful political activity.

Now, it seems to me that what I've said to this point is relevant in judging the petitioner's private interest, that is to say faced as he was with these questions, I think that he might well feel himself fortified in asserting his reasons of personal privacy by the fact that what the committees sought was remote in time, concerned lawful activity and had -- could shed little light on the national security.

But the -- I cannot improve on the petitioner's own statement of the urgent, compelling personal, private reasons which led him to decline to answer these questions.

I would only ask that Your Honors recall that this inquiry took place in 1956.

This was at time when the country was beginning to emerge from that era of our history which for want of a better name we call McCarthyism.

For months, for years prior to this hearing, the public prints have been full of innocent law abiding citizens who had been humiliated, persecuted, vilified sometimes even to the point of suicide and death because I have been revealed before one or another of these committees.

The petitioner's fears that his answers to these questions might bring harm to innocent persons were not factitious or contrived notions.

They were headlines of the time and I suggest to Your Honors that if under the Barenblatt balancing test, the desire of a citizen to avoid unjustified harm to innocent people is not a sufficient justification of personal privacy then none will ever be found.

This moral, this epical, this humane, this disinteresting reason for declining to answer, is the most compelling reason that this Court will ever have put before it.

Justice Felix Frankfurter: Mr. Van Arkel, suppose I agree to your last few remarks, the last statement and applied it in regards to questioning in a court of law at a trial, (Inaudible) in a trial in this Court, these questions would otherwise be relevant and suppose that dealing first by (Inaudible) ethics you just made, you came up in federal court, I would say, well the judge in his discretion ought not to rely on these questions, assume -- assuming (Inaudible) I haven't that freedom or power with reference to inquiring before a congressional committee or have I or not in order to yield to your argument say, must I conclude, that putting these questions, whatever I may think of the ethical offensiveness, putting these questions were not outside the constitutional power of Congress.

Mr. Gerhard P. Van Arkel: Your Honor --

Justice Felix Frankfurter: Have I put my problem --

Mr. Gerhard P. Van Arkel: I trust, I understand that Your Honor and I can only say that as counsel, I feel bound by the previous announcements of this Court which it seems to me have clearly phrased this problem in terms of accomplishing a balancing between the public interest that was to be served; the national security, if that was affected; and the individual's reason for asserting his personal privacy.

Now, this it seems to me, if this is the true test of Mrs. Barenblatt, as I read it, then Your Honor I think it becomes impossible to generalize to without knowing all the facts which surround the case that Your Honor puts.

Justice Felix Frankfurter: Well the case that I put to you namely reviewing a conviction in a District Court affirmed by the Court of Appeals also involves the (Voice Overlap) but what I am putting you it's a different kind of value in reviewing the conduct ex-trial of a federal district judge for a suit affirmed by Court of Appeals, I can say that a judge who has large dis -- considerable discretion at least an undefined amount of discretion in conducting a trial in which evidence though relevant admissible ought not in fairness because of the motion that it arouses, the misguidance it gives to the jury et cetera, et cetera, as a matter of discretion, you should have shut that out, but what I want to know is when it comes to dealing with the thing kind of questions or in pursuit for the same questions before a committee of Congress, I have that much that kind of freedom in balancing, do I?

Mr. Gerhard P. Van Arkel: I suggest to Your Honor that you have and I suggest that you have this discretion by a commitment from the Congress.

The Congress which as the discussion this morning brought out might have punished directly for contempt has entrusted that power to the federal judiciary and then doing so the Congress has imposed certain restraints on itself which are expressed in the statute.

The committee must be authorized, the questions must be pertinent.

There is, Your Honor, no question of limiting the Congress in its power of investigation.

Obviously, the Congress does not want unauthorized investigations going on.

The Congress does not want impertinent questions asked and it said so in statute.

Justice Felix Frankfurter: But do you go with me in the distinction that I -- that I indicated this morning; namely, you go with me with the distinction or do you say rather that you take the distinction that in my question I rejected, namely, if Mr. Whitman have been brought before the bar -- was it the House or the Senate?

Mr. Gerhard P. Van Arkel: Yes, Senate Committee, Your Honor.

Justice Felix Frankfurter: If Whitman has been brought before the bar of the Senate, on a report by the Chairman of the particular committee that found him in contempt and the Senate had then exercising its power, implied powers to be in contempt before the Senate, itself dealt with this problem and gave the man the same sentence, it was authorized to give the same sentence $500.00 and six months and then he sought out habeas corpus, your argument implies that it would have been my duty, assuming you're advising me, it would have been my duty if it is my duty to reverse this, it would have been my duty to say habeas corpus proper.

Is that right?

Mr. Gerhard P. Van Arkel: Your Honor, I suggest that there's an important distinction to be drawn here.

Justice Felix Frankfurter: Please draw it.

Mr. Gerhard P. Van Arkel: In the case -- in the Kilbourn against Thompson situation where you were dealing with habeas corpus, you are dealing with a particular exercise of congressional discretion in the particular manner and I assume that Your Honors would respect that exercise of discretion.

In this case, you are dealing with a prosecution brought under a statute which the Congress has adopted in which the Congress has fixed the standards to be applied by the federal judiciary, where the discretion is were not to be exercised by the Congress, but under the very terms of itself, is to be exercised by the federal judiciary.

Justice Felix Frankfurter: But I suggested to you our reviewing power overruling in the District Court will not require disagreement on the score of the provision of the Constitution, but namely they go out power as supervisors of the lower federal courts.

And I further suggest to you, or rather recall to you, that which I have no doubt you know, that in the MacCracken case, it was made specifically clear by Mr. Justice Brandeis writing for an unanimous court that the reason for the 1857 Act under which this prosecution is brought, it didn't have to do with any of these things, the reason was in order to permit heavier sentences by virtue of the fact that the power of a congressional committee would expire at the end of the session and therefore the punishments would terminate at the end of the session.

And the reason for the Act of 1857 was not an alleviating reason at all, it was an enforcing reason

Mr. Gerhard P. Van Arkel: Well, Your Honor it seems to me there is no inconsistency between those two that Congress might well have felt that it was proper where a person had been genuinely guilty of contempt of Congress that he be given a sentence which would not expire at the end of the congressional term and the Congress, at the same time to say, that we will setup certain restraints on our own action to be enforced through the federal judiciary for our own self protection, namely, we do not wish to have unauthorized committees going around holding hearings.

We do not wish to have congressmen or senators asking impertinent questions.

We ask the aid of the federal judiciary in imposing on ourselves these limitations for the best of possible reasons.

Now, I think that there's no inconsistency, Your Honor, between those two and to suggest that the Congress was doing nothing but being blind to the interest of the citizen in this case in adopting the statute, I think carries it much too far.

I think the Congress can be credited with the same interest in protecting the constitutional rights of the citizen as this Court is and there is no reason why the Congress cannot seek the aid of the judiciary precisely in protecting the constitutional rights.

Justice Felix Frankfurter: I don't want to take your time, but the MacCracken case also makes clear that the same restriction against abuse of constitutional rights limits Congress.

It said it is protected if you have either as in Kilburn and Thompson was found that Congress had no duty and no power or in the later case that it has exceeded it, so that -- but that's --

Mr. Gerhard P. Van Arkel: Well, Your Honor, just have one observation to that question and that is that the Congress has the greatest practical difficulty in enforcing these restraints on itself.

This is a large body.

All kinds of committee sit in all kinds of capacities.

These are legal problems.

They are constitutional problems and I suggest the to you that nothing is more probable than that the Congress specifically desire the aid and counsel of the judiciary in protecting the constitutional rights of the citizen and that it is wrong to suppose that these limitations are limitations which the judiciary puts on the investigating rights of Congress that they are in effect restraints which the Congress has been put on itself and which it seeks the aid of the federal courts and administer.

If Your Honors please, the inquisition has always had an insatiable appetite for names whether it be Torquemada or Titus Oates, Cotton Mather or Savannah Rolla or Lavrenti Beria or Heinrich Himmler, there is an impelling necessity to seek ever longer lists of names because only in this way can may color the pretense that there is a monstrous conspiracy against the state of which they and they alone are the true defendants.

As this lust for names increases, all forms of due process are forgotten.

All questions of guilt or innocence become irrelevant.

All questions of humanity or decent treatment of one citizen by another disappear until finally the child informs on its parents, the student on its professors, the wife on her husband and finally the guilty and the innocent alike walk to the state or the scaffold or to the tumbrel or to the death chamber.

And it precisely at this point that the citizen standing up and saying, I acknowledge my responsibility for my acts.

I will answer for myself and what you wish to know of me you shall learn, but I will not become an accomplice in your desire.

It is at this point that the dramatic clash between the felt needs of the inquisition and the ethical, the moral, the religious impulse of the citizen rise to their dramatic climax.

And it is precisely at that point that the determination must be made as it has always been made whether or not the net of suspicion shall be thrown ever wider, drawing in successively larger numbers of the innocent with the guilty or whether or not the line of inquiry shall be held within the bounds of a civilized and orderly society.

I urge that Your Honors draw that line in this case by reversing the judgment below.

Thank you.

Chief Justice Earl Warren: Mr. Doolittle.

Argument of J. William Doolittle

Mr. J. William Doolittle: Mr. Chief Justice, may it please the Court.

The petitioner in this case has raised a substantial number of issues for consideration by the Court, some of them presenting very broad constitutional questions.

However, it is not necessary for the Court to reach all of these questions and particularly the constitutional questions in order to decide this case completely.

The petitioner was convicted on 19 counts; not all of the questions that he raises go to all of the counts since he was given a general sentence and a fine at all 19 counts it was less than the maximum authorized by 2 U.S.C. 192, for any one count, the judgment below must be affirmed if any one of the counts is valid.

Under the circumstances of course, it is only proper that we consider or at least that we begin our consideration with the count or counts as to which the petitioner raises the fewest questions.

Therefore, while the government does contend that all of the counts are valid but except for counts 3, 4 and 5, as to which we agree that the questions were in fact answered, I should like to focus at the outset of --

Justice Hugo L. Black: Do you agree -- do you agree that he was indicted?

Mr. J. William Doolittle: I'm sorry sir

Justice Hugo L. Black: Do you agree that he was indicted for refusing to answer three questions to be answered?

Mr. J. William Doolittle: Yes sir.

I should like to focus at the outset of my argument on count 7.

Mr. Whitman had testified that he was connected with a communist unit in the New York Herald Tribune and that appears on page 1742 to 43 of the hearings and he declined to name, he then declined to name any persons who were members of that unit when he was a member and that is the basis for count 6.

Then he was asked the question on which count 7 is based.

?Now the members that you're associated with in the cell, do you know whether any of them are still employed by the Herald Tribune??

Now, let us first put to one side to the moment, the questions that that -- the issues that that question does not raise?

First, that question does not involve petitioners and the amicus contention that the first amendment protects a witness from having to disclose the names of persons with whom he has associated.

The question called for no names and considering the size of the staff of the New York Herald Tribune which petitioner indicated in the hearings was a couple of, a couple of hundred perhaps exclusive of mechanical, that's at 1742 of the hearings and further since he had disclosed to the committee any of the names of the people in the unit he had been with in 1948, we submit that there is no way in which an answer to the question would have identified the names of any of petitioner's former associates.

Secondly, the question does not involve the problem of remoteness in time that that petitioner has argued.

It concerned the persons employed by the New York Herald Tribune at the time of the hearings, that is in 1956.

Now, of course it was linked with the petitioner since his last activities had been in that cell in 1948, but I would like to emphasize in connection with the petitioner's argument on this point of remoteness that while there may have been what he describes to be a high, a watermark in 1950, that this makes it all the more important for the committees investigating this problem to able to look at information prior to 1950 because this watermark will also determine the time when by and large it became more and more difficult to find anything out of the party's activities and only by developing the background prior to the time that the party, excuse me, what more and more underground that the committees were able to develop any information at all.

Thirdly, assuming that the question under inquiry was communist infiltration into the press and I shall go into that question in a moment, this question clearly does not involve a pertinency problem since it was plainly pertinent on its face to an inquiry and to communist infiltration in mass communications media and more particularly in the press.

The answer to the question would have contributed importantly to the subcommittee's knowledge as to the extent of communist infiltration into the newspapers in New York and might well provide a foundation for asking other questions that that petitioner may well have been willing to answer.

For example, if his answer had been in the affirmative, there were still some people in the New York Herald Tribune who had been a member of that cell; questions such as how many of them, what their functions had been in the party, questions such as that might have been asked that is I say petitioner may have been willing to answer and that the amicus for example at page 12 its brief suggest what probably be appropriate since the committee did have a valid interest in determining the extent or at least the numerical extent of infiltration into mass media.

Now, petitioner does raise a number of other contentions that if sustained by this Court will invalidate the petitioner's conviction on all counts including count 7 which I have been focusing and I'd like to take up these questions.

Broadly speaking, they relate the definition of the subject under inquiry, the pertinence of individual questions to that subject, the authority of the subcommittee to conduct the inquiry, the extent to which petitioner was informed of these matters and certain questions relating to the form of the indictment.

I shall discuss each of these in turn and then with anytime remaining, I shall attempt to cover the points that go to the other counts in the indictment.

Justice Hugo L. Black: Are you going to discuss the question of balancing that you would put on each side of the scale?

Mr. J. William Doolittle: I hope I can get to that point sir.

Justice Hugo L. Black: I didn't understand you to list that --

Mr. J. William Doolittle: Well that's implicit -- implicit basically in the First Amendment contention.

Justice Hugo L. Black: Well, I don't know if it is implicit in any that you add --

Mr. J. William Doolittle: I'm sorry sir

Justice Hugo L. Black: I don't know the simplicity on any of those you're suggesting.

Mr. J. William Doolittle: Well I'm -- what I'm

Justice Hugo L. Black: I suppose --

Mr. J. William Doolittle: What I'm going to do Mr. Justice is to take up the points that must be reached in order to decide this case.

Justice Hugo L. Black: Must not you -- must you not reach that one?

Mr. J. William Doolittle: Well, in the context in which it has been raised, we submit that you need not sir because the First Amendment point that he makes that is as to whether or not the individual has to disclose names of other persons are not raised by all of the counts in the indictment and I am taking up at this point, one of the counts that did not involve that point.

I do hope --

Justice Hugo L. Black: Whether it does or not, you would have to meet the question of balancing, would you not?

Mr. J. William Doolittle: Not in the context in which he has raised it, sir.

Justice Hugo L. Black: But you'd have to meet it if you want to convict him on one of these, would you not, that he has raised the question in the First Amendment.

Mr. J. William Doolittle: Yes Mr. Justice Black.

We will contend as I will spell out that on the basis of the circumstances of this case, the balance is clearly drawn in favor of the witness' having to answer but I certainly course to the extent of that as necessarily in the case of course.

I submit that an objective reading of this record will leave no doubt as to the subject under inquiry by the Senate Internal Security Subcommittee at the hearings at which petitioner appeared.

The subcommittee had for some 11 months, been conducting hearings on strategy and tactics of world communism.

Within that basic framework that on the basis of testimony given by one Winston Burdett who was a newspaper man and broadcaster, the subcommittee undertook to focus more particularly on communist infiltration into news media.

It held 3 days of hearings in January on 1956 at which 18 witnesses appeared; 17 of whom where then or recently have been employed as newsmen and other of whom was a film exhibitor.

At the outset of the hearings on January 4th, the Chairman of the subcommittee announced that the hearings about to commence stemmed from Burdett's testimony.

That the investigation of communist affiliations that resulted from that testimony disclosed, ?Many who were or are members of the press? and that ?the international communist conspiracy has as one of its primary aims the influencing of public opinion thus carrying on a psychological warfare against the United States and its institutions from inside by methods of penetration.?

Then Senator Hennings said in a statement whose primary purpose was to disavow any attack on the free press to that, ?The committee is interested in the extent and nature of so-called communist infiltration if such exists into any news dispensing agency.?

The Chairman expressed his agreement with Senator Hennings' statement in its entirety and also disavowed any attack on the free press.

On January 6th, the 3rd day of the hearings and the day on which petitioner appeared, the proceeding is opened with a reading of a telegram from a New York newspaper in which the newspaper stated its agreement with the subcommittee's efforts to uncover communist infiltration wherever found and the Chairman responded by reaffirming the subcommittee's purpose to follow up the information concerning infiltration of persons identified as communists into news agencies.

In a course of some remarks by Senator Hennings on that day he said, ?I think no one will quarrel with nor take issue with the fact that this committee has the right to inquire into all efforts or indeed all consummations of efforts of the Communist Party to infiltrate newspapers or other media of communications?.

The subcommittee then called Robert Shelton, the petitioner in number 9; who is employed as a copyreader with the New York Times.

Shelton was questioned primarily on whether or not he had any communist affiliations and about communist infiltration in the typographical union.

The next witness was petitioner, and petitioner concedes that he was present at the beginning of the session that day incidentally.

By and large, the questioning of petitioner, himself, developed the character and duration of his employment by various newspapers, by TASS the Soviet news agency and by various communist front organizations, the nature and activities of the communist units to which the petitioner has been exposed and more particularly of the newspaper cells of the Communist Party to which he belonged and that the relationship of his party membership to his employment with these various newspapers.

One cannot read the testimony of this petitioner and that of the other witnesses in this set of hearings all of whom were in the communications field and all but one of whom were newsmen without becoming convinced that the hearings were in point of fact concerned with precisely what the Chairman announced would be the subject under the inquiry, the strategy and tactics of the communism that's reflected in communist infiltration into news media.

At petitioner's trial, the government established that this was the subject under inquiry by introducing the transcript of the hearings into evidence.

In addition, the subcommittee counsel testified that, ?In these particular hearings, we were in an area within the broad area of tactics and strategy within the narrower area of infiltration of mass communications,? that's at page 31 of the joint appendix And that the investigation was, ?Into the strategy and tactics of world communism of which this mass communications was an offshoot and apportion,? that's on page 37 of the joint appendix.

Now, there were references as counsel points out on his brief in the testimony of the subcommittee counsel, references to the investigation of communist activities generally but it is clear from the context of those remarks that he was referring to the basic investigation of which these 3-day set of hearings was but a part.

And similar statements by the Assistant United States Attorney are plain and can be explained in the same way where the rest of the transcript indicates clearly that he understood the subject under inquiry to be what I have said that it is.

For example, at page 34 of the joint appendix, he said, ?You were indeed though inquiring were you not into mass communications infiltration by communists??

And at page 37, his question was in this particular investigation in mass communications and generally in the tactics and strategy of world communism, was that commenced before or after the passage of the rule in 1955?

Justice Mr. Justice Harlan : Do you take issue with Mr. Van Arkel statement would be made an adequate objection on the pertinency?

Mr. J. William Doolittle: We do, Your Honor and I'll get to that in just a moment.

Contrary to the representations that petitioner has made in this appendix to his brief, the Court of Appeals did identify and affirm the subject under inquiry to be precisely as I have described it.

The court by specific reference and that's at page 2 of the printed record found the subject under inquiry to be the same as it had found in the Shelton case.

In the Shelton case, its statement was, ?the broad subject matter of Communist Party infiltration and subversion and narrower subject of efforts to influence American public opinion and the specific effort to use the press to implement these objectives; that's at page 238 in the Shelton record.

And then in its opinion in this case, the court below went on to find that certain other questions including count 7 which I have been discussing, ?were clearly pertinent to an investigation of subversive activities as manifested by the organization of members of the press into Communist Party cells in the period following World War II? and that's at page 3 of the record.

I submit that there is no basis for any doubt as to the subject that the subcommittee had under inquiry when it was questioning petitioner nor as the Court of Appeals found is there any possible doubt as to the pertinency of some at least of the questions petitioner refused to answer, the first eight of which were pertinent on their face to the subject of communist infiltration into news media.

Now, petitioner contends that even if the subject under inquiry was as I have described it, he was not apprised to the subject or on the pertinency of the questions to that subject.

In the first place, this contention is not open to the petitioner since he did not raise the issue of pertinency or the scope of the subject under inquiry at the hearing when the subcommittee could have corrected any deficiency in this regard that might have existed.

The general objection that the petitioner made to the authority of the subcommittee appears at page 1733 of the hearings and we submit that it is significantly less precise then the one that was involved in the Barenblatt case in which this Court held was insufficient to raise the question of pertinency.

All the statement that petitioner had in the hearings did was to raise in a general way the First Amendment point that counsel has argued here and that is that he was not obligated by the First Amendment to answer questions concerning other persons, but the -- as an objection to pertinency, we feel certain that under both Barenblatt and Deutch it was completely inadequate to express that point.

In any event, however, petitioner was plainly apprised both of the nature of the subject matter and of the pertinency of the questions to subject matter.

He was present at the start of the hearings on January 6th when he heard both the Chairman and Senator Hennings to make statements I've already referred to identifying the subject under inquiry as communist infiltration into news media.

He heard the witness ahead of him, a newsman, questioned on this subject.

His own prepared statement, the one I referred to at page 1733 in the hearings reflects his understanding that infiltration of the press was the subject under inquiry.

He ascribed the investigation as being, ?with reference to the beliefs, associations and activities of individuals, who are or have been connected with newspapers.

Here as in Barenblatt and -- and precisely the same reasons as in Barenblatt, the witness was plainly aware of the subject under inquiry and since a number of the questions including that involved in count 7, were pertinent on their face to the question of communist infiltration into the press, petitioner must be held to have been aware of their pertinency.

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

Print this transcript Transcript:

Argument of Frank J. Donner

Chief Justice Earl Warren: Number 128, John T. Gojack, Petitioner versus United States.

Mr. Donner.

Mr. Frank J. Donner: May I proceed?

May it please the Court.

This case is like the (Inaudible) -- the five that have preceded it, a contempt case arising under Section 192 of the contempt statute.

Petitioner here was found guilty in a six-count indictment.

He was sentenced to nine months in prison and fine $250.

The petition here raises some seven issues.

Four of them have been discussed in one form or another during the train of arguments that the Court has heard.

And I want to confine myself here to one argument -- well, really two arguments, first that the purpose of calling petitioner was to expose him, to do him injury, and second that an important item of evidence which was offered below was erroneously excluded by the trial judge.

This item of evidence, too, dealt with the question of exposure.

Now, let it be said at the very beginning, Justice Harlan, that I accept the premises of the Barenblatt case on the issue of exposure, that is, I -- assuming I know what the Barenblatt case holds, namely that investigation with respect to communism is a legislative subject matter.

And that it does not -- the fact that a committee is investigating communism, however, does not raise an irrebuttable presumption that it's engaged in a legitimate legislative endeavor that it has an appropriate legislative purpose.

For example, in the Barenblatt case itself, that the Court's opinion notes that -- notes at least three ways in which this presumed legislative purpose might be overcome by a showing, for example, of an exertion of a power belonged into another branch of government, by showing of a lack of probable cause and by a -- or by showing that there was an attempt to pillory a witness.

So that -- I think that the issue that I must face in my argument is what did the committee do and say which is a -- can be fairly attributable to the purposes of the committee.

What can we say about the totality of the evidence with respect to the purposes of the committee in this case?

Now, it goes without saying that the question of legislative purpose is really the milk and the coconut.

It's the exigent thing about this whole investigative process, whether you view it as the justification for the exercise of power under Article 1 or the justification for the invasion of First Amendment rights under the Bill of Rights.

There must be a legis -- a legislative purpose and it -- it seems to me that the Court has a special responsibility to find such a purpose.

I would like -- since there was some discussion in one of the arguments about the 1857 statute, I think Justice Frankfurter raised the question about it as well as Justice Douglas, I'd like to read a brief passage from the debate on the 1857 contempt statute.

Senator Seward objected to the broad language of the 1857 statute.

He said, “It maybe a subject on which Congress has no jurisdiction, it may be foreign from all the provisions of the constitution, it may be a local question, it may be a state question, it may be a personal question.”

In response, Senator Bayard, who was one of the sponsors of the law countered, “I am aware that legislative bodies have transcended their powers -- that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of coordinate branches of the Government; but if our institutions are to last, there can be no greater safeguard than will result from transferring that which now stands on an indefinite power, the punishment as well as the offense resting in the breast of either House from Congress to the courts of justice.”

And it seems to me that -- we -- that the Court here has a great responsibility to determine whether or not the asserted justification for the exercise of legislative power really exists.

Now, I don't contend -- I must make it clear that merely the result of this investigation was punitive.

I don't contend that my client was innocently -- innocently hit while waiting for a legislative street car.

I contend that the committee intended to do him injury.

I -- I make that point because I -- I've been -- the court below said, “Well, of course, if a result is injury, you can't -- the witness can't complain.”

I agree.

I think everybody recognizes that the price you pay for making a contribution to the clarification of issue as a fact maybe injury.

My point is that there was a purpose here, to injure my client.

I also would like to point out to the Court something which may seem trivial, if not fearless, but it's highly important.

A clue to this case is that it was -- it was a hearing which was held in the carefree days before Watkins when the committee was not nearly as cautious about concealing its improprieties as it is today.

Here, I think the evidence of what the committee was up to was glaringly revealed.

Now, the second general point that I want to make before sharing the facts with the Court is that we have to look at the (Inaudible) here of what happened.

It isn't just one fact, it's the whole pattern.

Justice Hugo L. Black: May I ask you?

Mr. Frank J. Donner: Yes, Your Honor.

Justice Hugo L. Black: You have cited the legislative history which --

Mr. Frank J. Donner: No, Your Honor.

I have -- the Government filed a brief too late for me to file a reply brief.

And at -- but it's indicated that it will not object to my request to file one, and I would like to file a reply brief.

Justice Hugo L. Black: What is that citation?

Mr. Frank J. Donner: Yes, Your Honor.

I'd be glad to give you that.

That's 34 congressional -- Congressional Globe, 34th Congress Third Session, pages 439 to 440.

Justice John M. Harlan: (Inaudible)

Mr. Frank J. Donner: Congressional Globe, 34th Congress, Third Session, 439 to 440.

Justice John M. Harlan: This is on 1857?

Mr. Frank J. Donner: 1857, Your Honor, yes.

Now -- now for the facts --

Justice Felix Frankfurter: Incidentally that shows from what Justice -- from what the Court then understood (Inaudible) in the problems?

Mr. Frank J. Donner: No.

I agree with that, Your Honor.

Justice Felix Frankfurter: This notion that this just began with the Un-American Committee is -- fly right in the face of the whole history of the legislative investigation from (Inaudible)

Mr. Frank J. Donner: Your Honor, I do think that the problem has acquired several new dimensions --

Justice Felix Frankfurter: Just because we live --

Mr. Frank J. Donner: -- with the -- with the --

Justice Felix Frankfurter: -- because they're vivid and contemporaneous, they were just as -- they had just -- it came to mention in Kilbourn against Thompson, and in MacCracken, and in the utility investigation and all of them.

Mr. Frank J. Donner: Your Honor --

Justice Felix Frankfurter: That doesn't -- that doesn't bear on this problem?

Mr. Frank J. Donner: I honestly don't think so, but maybe we'll --

Justice Felix Frankfurter: I'm just trying to give this a historical perspective speaking of --

Mr. Frank J. Donner: Now --

Justice Felix Frankfurter: -- this only becomes -- it's going on a joyride.

Justice Hugo L. Black: Had there been many committees that examined and the same subject matter that these committees have examined?

Mr. Frank J. Donner: No, Your Honor.

There has never been a committee, for example, in the history of the -- the Congress that I know about to whom you can write to obtain your neighbor's dossier.

There has never been such a -- such a committee in the history of -- of our Congress, a committee who -- which maintain a dossier of millions and millions of individuals which supplies them on request.

I must say that I'm convinced that we are dealing here with the new kind of institution, a new kind --

Justice Felix Frankfurter: But Mr. Donner, the right to keep quiet is just as pressured when it comes from a utility tycoon or from an ex-Communist.

Mr. Frank J. Donner: Very well, Your Honor.

Justice William J. Brennan: Mr. Donner, before you start, I gather you're going to give us the facts and the contexts of this representation election, is that it?

Mr. Frank J. Donner: Yes.

Justice William J. Brennan: If that's what you said earlier that you're going to -- your argument is going to be that the aim of this inquiry was specifically to injure this petitioner?

Mr. Frank J. Donner: Correct, Your Honor.

Justice William J. Brennan: Not that the aim of the inquiry was in any wise to affect the result of that representation election.

Mr. Frank J. Donner: Well, no.

I'm going to do both, Your Honor.

Justice William J. Brennan: Well, I mean, on your argument of exposure -- for exposure sake (Voice Overlap) --

Mr. Frank J. Donner: I'm -- yes, I'm arguing that both of these were improper motivations, Your Honor, and that they will both encompass within the plan of the -- of the committee.

Justice William J. Brennan: Well, let's see if I could exclude these and that if the record established is either notwithstanding -- we don't establish that injury of this particular petitioner would be arguable.

Mr. Frank J. Donner: Right.

Justice William J. Brennan: If you do establish, that it was -- to effect the representation election, that that brings the inquiry without the orbit of legitimate (Voice Overlap) --

Mr. Frank J. Donner: Yes, Your Honor.

And once more, on this, we'll say at this point that I -- I think -- that's my view even though there was a competing legitimate purpose because you -- we can't decide now what questions were asked for what reason.

Now -- now, we'll go on to the facts.

The petitioner in this case was the District Director of a labor union, the UE, and he was stationed in Fort Wayne, Indiana where a collective bargaining election was scheduled for February 24th, 1955.

On February 9th, the local press in Fort Wayne printed a statement from the Chairman, obviously based on an interview that had been given by the chairman to the local press that the union would be investigated, and the story added that a committee source stated that Mr. Gojack and another witness would be called.

Now, mind you, this was before a subpoena was even issued to petitioner.

The subpoena was issued on February 10th.

On the same day that is February 10th, he said wire, and it was an irate and harsh wire.

You'll here more about it I'm sure from the Government.

But he had a reason to be irate and harsh.

He attacked the committee and pointed out that no election was pending at the plant, but more than this that the personal -- personnel director at the plant, a man named McLaren had announced to the employees three days before even the public announcement had been made that he would be subpoenaed.

And there was a third reason why he was angry.

The previous year, the -- the personnel director had circulated in the plant petitioner's dossier that is that the material in the files, in the committees' files about the petitioner, and of course used it for labor-relations purposes.

And I cross-examined the -- Mr. McLaren, he said “Why?”

He just asked this congressman to get this dossier, then he reproduced it on House Committee -- the House Committee dossier and circulated it in the plant.

So that's the first sequence of events.

Justice William J. Brennan: Did the House -- are there any evidence that the House Committee had ever published that dossier?

Mr. Frank J. Donner: No.

No evidence at all, Your Honor.

And I -- and that -- it's -- it's quite clear that this was a dossier from the committee's files.

Now on February 14th, that's a few days later, union representative went to seek Congressman Walter.

And he said, “Congressman, look, a hearing is coming up -- our collective bargaining election is coming up and we would like an adjournment.”

During the course of this hearing, Congressman Walter said, “No, I will not hear your request for adjourn -- adjournment except in a public hearing.”

So he called the press in.

And in the course of dealing with this request for adjournment he said, “I want to see the union go out of business because it is not good for the country.

I want to see the UE go out of business because it is not good for the country.”

This was in the course of a mere request for adjournment.

Justice John M. Harlan: (Inaudible)

Mr. Frank J. Donner: Not by -- not by -- not by -- the epithets were in the wire, Your Honor.

Justice John M. Harlan: They were in the wire?

Mr. Frank J. Donner: They were in the wires.

I'm -- I'm now talking about the -- the hearing at which the request for the adjournment was discussed.

Now, of course, the next -- next day, they appeared on the local papers where the election was scheduled, a headline which said that “House Un-American Activity wants UE out of business.”

On February 7th -- 17th, that's a few days after this request for adjournment, the Committee did give an adjournment until February 28.

And of course, the Government will point to this to show how benign the committee was.

Justice William J. Brennan: What was scheduled date for the election?

Mr. Frank J. Donner: 24th, Your Honor.

The Government as I say -- will say -- “Well look -- look what a favor the committee -- the committee did for Union by postponing this election.

How can you say they were out to get to the Union?”

The answer is very simple.

Congressman Walter then made a speech on the floor of the House, which of course, was duly reported in the press in which he said, “I want all these Magnavox workers to repudiate this union.

And what's more, the only reason we are postponing the election is because we're afraid that if we hold it, the union might win.”

So, the hearing was postponed.

Justice William J. Brennan: Did the union win?

Mr. Frank J. Donner: No, they lost.

The hearing was postponed.

A second subpoena was issued on February 23rd for a hearing on February 28th, again, just as in the case of the Fort Wayne situation, the second subpoena was leaked.

Before it was served on my client, an item appeared in the local press, and I read this item.

I'll read the significant part of it.

This is an interview with Congressman Walter by the Saint Louis -- by the Saint Joseph Herald Express in which Congressman Walter says about two of the witnesses, “We intend to bring out the facts that they are card-carrying Communists.”

Justice William J. Brennan: What issue of the (Voice Overlap) --

Mr. Frank J. Donner: This was February 21st.

Again --

Justice William J. Brennan: Was it before the election?

Mr. Frank J. Donner: This was again before another election.

You see, the editor of the Saint Joseph Herald Express, where the Whirlpool Company is located, called up the committee and got this statement from -- from Mr. Walter.

And what did he say?

He said, “We intend to bring out the facts that they are card-carrying Communist.

The rest is up to the community.”

Now, if ever there was an intention to do injury to someone, this is it.

In fact, this is the classic strategy of modern repression, the public identification of the victim and the stimulation of private sanction so that he may be injured.

And this Court has seen in a train of cases that have come before you just how this has worked, just how this has become the classic pattern.

Now, you may say, “Well, that's a newspaper clipping.

That's what the Government tells me.

It's a newspaper clipping.”

But there are important things about this newspaper clipping.

I subpoenaed Chairman Walter.

And instead of coming, the Government offered to stipulate that if called, he would concede, that this statement was made and that it was accurate.

There is no question of its accuracy.

There is no question of its authenticity.

Also, I want you note that he didn't say, “I intend to show anything,” he said “We intend to show that they are card-carrying Communists and the rest is up to community.”

He didn't say, “We're going to conduct an investigation into labor and communism.”

And incidentally, as a result of this, meaning -- we may reluctantly have to identify somebody as a Communist.

Oh, no, he didn't say that.

He said, “We intend to show they are card-carrying Communists and the rest is up to community.”

So that you have here -- you have here a pattern of leaks to the press and of attempts to use the investigative power as the means of influencing the election as well as promising to injure this one individual.

Now, after -- at the hearing, the counsel for petitioner of -- at the -- the committee hearing, the counsel for petitioner filed a motion.

And the motion he -- he -- was in the form of a statement of objections to the hearing as well as a motion to vacate the subpoenas, and the motion said, “We don't think that the objective of breaking a union or showing that someone is a card-carrying Communist so that the community can work its will on him, we don't think that these are legitimate objects of legislative concern.”

This motion was filed.

The committee did nothing about the motion really.

It noted that it was filed.

And at the end of the hearing, it denied the motion nunc pro tunc.

In the course of the hearing, the witness are not -- how far back the tunc went, but that's a matter --

Justice William J. Brennan: (Inaudible)

Mr. Frank J. Donner: During the course of the hearing, the witness here was asked about 500 questions -- all kinds of questions about where he went to school, whether he was drafted or not drafted, and of whom -- who stay -- stayed with whom when he filed out -- filed a -- an application for a passport.

All of which -- certainly at -- looking at spontaneously, suggesting that the committee was trying to do exactly what it promised to do.

It never did show that petitioner was a card-carrying Communist or indeed any other kind of Communist.

But I suppose that was just a little (Inaudible) on the part of Congressman Walter.

Justice William J. Brennan: Well, he was asked whether he was a member, wasn't he?

Mr. Frank J. Donner: Yes, and he refused to answer that on First Amendment ground.

The witness refused to answer the questions which are here in issue on three grounds, on the First Amendment grounds -- on the First Amendment ground on exposure on the ground that this was an attempt to expose him and hence lacking in legislative purpose, and on the ground that he had signed for many years non-Communist oath under the Taft-Hartley Act.

Now, I would like at this point to deal with the evidence question because in my view, the evidence question significantly clarifies and unifies what happened in this whole series of actions and statements that I've talking about.

They weren't just statements that were made spontaneously.

They all are explained and unified by an interview which Congressman Walter had with the press right before he became chairman.

And, I would like, if Your Honors please, to read the interview.

This appears in the record at page 214.

And of course this was a kind of interview that a chairman to be gives the press right before he becomes chairman.

And the chairman was interviewed, Congressman Walter, in November of 1954.

And he was asked, “Well, what are your plans when you become chairman?”

And here is what he said, and I'm reading this press account, “Francis E. Walter, who will take charge in the new Congress of House activities against Communists and their sympathizers, has a new plan for driving Reds out of important industries.

He said today, he plans to hold large public hearings in industrial communities where subversives are known to be operating and to give known suspected Communist a chance in a full glamour of publicity to deny or affirm their connections with the revolutionary conspiracy or take shelter behind constitutional amendments."

By this means he said, active Communists will be exposed before their neighbors and fellow workers and now I'm quoting, “And I have every confidence that the loyal Americans will work with them will do the rest of the job.”

Hearings of a similar nature continuing the -- the account, have been held in local areas, but Representative Walter wants to make them bigger where the public being erred as well as invited to attend.

“We will force these people we know to be Communists to appear by the power of subpoena,” Representative Walter said, “And we'll demonstrate to their fellow workers that they are part of a foreign conspiracy.”

Now, here too, there is no question.

It's been conceded that Congressman Walter said that.

That it's an accurate account of what he said.

The only issue is -- the only issue that Government raised is whether this is relevant.

And I submit, Your Honor, that it's highly relevant.

First, it was made by the future chairman who certainly ought to know what the program of the committee was to be.

Second, and this is extremely important, this -- this statement was the statement that was made immediately prior to this hearing or to turn it around, this hearing was the first hearing that was held after the statement was made.

In other words, the first investigative act that was taken under this new plan was the Fort Wayne hearing.

And, Your Honor, you can find that from the -- in the index which is published by the -- by both -- McClellan Committee has an index as well as the House Committee of the hearings.

And you will find that -- that this hearing occurred directly after -- that is the first hearing after the statement was made.

So it seems to me that this should have been admitted into the record by the District Court because it was the statement which most closely reflected the purpose of the -- of the committee in this overall plan and finally --

Justice Felix Frankfurter: Would there be any difference to you if Mr. Walter had been -- had been tight-lipped and not made that statement?

Mr. Frank J. Donner: Yes, it --

Justice Felix Frankfurter: Does it make a difference to the case?

Mr. Frank J. Donner: Well, Your Honor, I think this sort of unifies it.

Justice Felix Frankfurter: Yes.

He was asked to do it?

Mr. Frank J. Donner: No, it would not have made a difference to the case.

Justice Felix Frankfurter: Well, that's the point?

Every -- every Senator who's in charge of a committee hearing involving a public interest wants the whole United States to be informed and as it were to the extent that they can act on it.

Mr. Frank J. Donner: But --

Justice Felix Frankfurter: Every senator or congressmen who's the chairman of the committee, does that.

Mr. Frank J. Donner: Oh that goes without saying, but the question is what does he do, Your Honor.

What my -- what my complaint is that he was in sort of instigating a dry lynching.

He was saying, “I'm going to hold these hearings and you go out, you fellow Americans and do there -- do your job.”

Justice Felix Frankfurter: That's what I am asking you, whether you think your case would be different if he hadn't said a word.

Mr. Frank J. Donner: Oh, well, I think it's stronger because he didn't say a word.

Justice Felix Frankfurter: Would it make a difference?

Mr. Frank J. Donner: Well, I think it's a stronger case because it unified everything that followed it.

Now, let me -- let me show you what I mean.

There are two -- there are things in what he said.

He said, first, that he wanted to ex -- that I'm talking now about the November statement.

He said, first, that he wanted to expose Communists to the full glare of publicity so that loyal Americans will work with -- with them, will do the rest of the job.

Justice Felix Frankfurter: And what do you think Senator Thomas J. Walsh and Senator Lafollette a when they expose the corruption in regard Teapot Dome and Harry Daugherty?

What do you think their purpose was?

Mr. Frank J. Donner: Your Honor, I think that every committee occasionally lapses into exposure, but the point I'm making here --

Justice Felix Frankfurter: In other words, they must insulate against exposure.

That's your present position?

Mr. Frank J. Donner: My -- my point is that you couldn't get a stronger case.

This -- this committee could have hired a sandwich man to go out on the street and say, “Why -- what we want to do is to expose all these people and you, Americans, go out there and take them on, run them out of plants, boycott them, discharge them and so on.

Justice Felix Frankfurter: They didn't do that.

Mr. Frank J. Donner: What -- what company who have said this more clearly?

Now -- and oddly enough, what does it -- what does this statement contain?

It contains the two elements that I talked about before, the exposure of witnesses and the appeal to the public to do the rest.

And of course, that's exactly what happened in our record.

The -- he called up these -- these newspapers and said, “I'm going to expose these people, and you local people do the rest.”

It seems to me that it would be hard to find a clearer example of an improper motivation.

Now, I don't say that this is the only case in which the committee is improperly motivated.

But I say, it's one of the cases in which they've shown how improperly motivated they are.

Now, the Government has suggested that there's something in Barenblatt which says that a Court is bound by the statements of a subcommittee chairman and that since Congressman Moulder said when the witness came before him, “This is a hearing about communism and labor”, he was a subcommittee chairman who conducted the hearing, “That therefore we can't go behind that.”

Now, this is odd to me.

I presented the Emspak case to this Court.

And I showed the Emspak case that many of the committee members said, “Exposure, we're going to expose you.”

And the Government said, “Aha!

But that's not the chairman.”

Well, this is the chairman.

The chairman of the committee said, “This is our purpose.”

And what's more, this wasn't the chairman who was alienated from the subject matter.

He knew all about it.

He -- his whole -- his whole course of conduct was intimately related to it.

Then, I want to point out that a chairman in an investigating committee has a peculiarly important role under Rule III of the House Rules, “He is the only man who can issue subpoenas.”

Under Rule III of the House Rules in Jefferson's Manual, “He is the only member of the committee who was elected by the whole House.”

He was the member of the committee -- he was the chairman who created this subcommittee.

And so it seems to me that you can't say that you're going to simply brush aside all of these things, incidentally, the Government does brushed it aside.

Nowhere will you find in the Government's brief any reference to these interviews.

They simply sneer at these newspaper clippings as though, you know, there's something about a newspaper which inherently disqualified the piece of evidence.

Well, as a matter of fact, the fact that he --

Justice Felix Frankfurter: Was it a piece of evidence?

Was it introduced?

Mr. Frank J. Donner: Oh, no question of it.

No question of it.

Justice Felix Frankfurter: It was introduced?

Mr. Frank J. Donner: Yes.

Justice Felix Frankfurter: What evidence?

Mr. Frank J. Donner: Except, Your Honor.

I must say the last item I read was excluded and I say it was improperly excluded.

Now, it seems to me that the fact that the chairman said it, the fact also that there is no formal resolution stating what the purpose of the committee is.

You see, since Watkins, the committee has taken to passing formal resolutions saying, “We are going to do so and so and so and so, and a subcommittee of such and such and such and such is appointed.”

I'm sure, Your Honor, you've seen cases like that.

There is no such formal resolution in this case, and so we have the Chairman stating this thing and then you have what Congressman Moulder said in -- as -- as the subcommittee chairman.

I see that my time is expired, Your Honor.

I would like to file a reply brief.

The Government has said it would not oppose.

Chief Justice Earl Warren: You may do that.

Mr. Frank J. Donner: Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Maroney.

Argument of Kevin T. Maroney

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

The Court of Appeals in this case saw fit to observe as it rightly might that not only did this petitioner refused to answer certain questions for which he was indicted.

But his attitude before the subcommittee was abusive, insulting, and contemptuous of the committee and its members.

Justice Felix Frankfurter: Is that what he was indicted for?

Mr. Kevin T. Maroney: No, sir.

He was indicted for refusing --

Justice Felix Frankfurter: Then what's the relevance of that?

Mr. Kevin T. Maroney: Well, of course, that is relevant, Your Honor on the -- on the question of the willfulness or the refusal to answer in this case.

His -- his attitude and his remarks to the committee --

Justice Felix Frankfurter: I don't even follow that.

However, go on.

Mr. Kevin T. Maroney: Now --

Chief Justice Earl Warren: Is that offered at the trial against him?

Mr. Kevin T. Maroney: The basis upon which --

Chief Justice Earl Warren: No, the abusiveness and -- that you've just been talking about.

Was that introduced as evidence at the trial?

Mr. Kevin T. Maroney: That -- those comments, Your Honor, about the Court of Appeals are based on the record of his testimony --

Chief Justice Earl Warren: No, I didn't ask you that.

I didn't ask you that.

I asked you if that testimony was offered at the trial.

Mr. Kevin T. Maroney: That's a conclusion, Your Honor, of the Court of Appeals based upon --

Justice William J. Brennan: From the records of the hearing?

Mr. Kevin T. Maroney: From the record at the hearing which was offered at the trial.

Justice Potter Stewart: But the words you quoted, they are the words of the Court of Appeals?

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

Justice Hugo L. Black: May I ask you where is the particular statement on which they relied that it is abusiveness?

Mr. Kevin T. Maroney: Yes sir.

The Court of Appeals' opinion --

Justice Hugo L. Black: I'm not talking about the Court of Appeals' opinion.

I want to see it in the record.

Mr. Kevin T. Maroney: Well, they -- they have direct quotes from the record, Your Honor, that he made, which is in his testimony, and the court puts it in quotation marks, the Court of Appeals at page 232.

Justice Hugo L. Black: 232?

Mr. Kevin T. Maroney: 232, yes sir.

The court, after making the statement which I have just adverted to said that he accused the committee of using paid liars with which to frame witnesses, then, “I did not know what paid liars and forgers that you may have.”

“I do not know what paid liar you have here to do a (Inaudible) job on me.”

“I haven't had the opportunity to vote myself at $10,000 raise,” and a few others, Your Honor.

They're all in the record of the transcript of the hearings which is in evidence.

Now, in view of the assertions which is the principal contention of the petitioner that the dominant purpose of this inquiry and of calling this petitioner before the committee was exposure for the sake of exposure, I think that it's important to go back and advert to a number of other facts which occurred prior to the petitioner's appearance before the committee.

The committee -- the testimony in the case shows that this committee had been engaged intermittently from August 1949 to February 1955 when petitioner appeared in investigating Communist Party activities within the United Electrical Workers Union.

The committee received testimony in 1951 from an individual by a name of Dekovich (ph) who had been a long time president of the UE and a former Communist that the Communist party infiltrated the UE.

Mr. Dekovich (ph) had testified before the committee that it's important officials, that is the UE where 99.9% pure Communist Party members.

In July 1953, one Jack Davis had testified before the committee that all organizers for the UE were members of the Communist party.

Mr. Davis had been a member of the Communist Party and had been a UE organizer.

Before this petitioner was subpoenaed before the committee, the committee had information that he was a vice president of the International and was a president of District 9.

Now, on February 9, the committee announced -- February 9, 1955, this the period which is involved, the committee announced that hearings would begin in Fort Wayne on February 21.

There was a news account which appeared on that same day or the next day which mentioned the petitioner as a prospective witness.

On February 10, the next day, following the announcement of the Fort Wayne hearings, Congressman Walters received an abusive telegram from the petitioner, protesting the hearings in view of the NLRB Elections which were scheduled at the Magnavox plant for February 24.

Now, four days later, on February 14, a Mr. Goldstein, who was a Washington representative for the UE requested an interview with Congressman Walters for the purpose of discussing a continuance of the hearings.

A transcript of the interview between Mr. Goldstein and Congressman Walters is in the record and is set forth at pages 76 to 80.

Now, on the occasion of this interview, Mr. Goldstein said that he had asked for this interview to request the postponement and to find out, this is on page 77, whether you and the committee were aware of the fact that this election was scheduled for the 24th and Chairman Walter said “Not until we received an insulting telegram.

After I received that telegram, then I became aware of the fact that there was an election being held.

We had previously absolutely no knowledge of it, and the only reason we decided on this hearing there was because these people are there.”

So that the evidence in the case conclusively shows that the committee when it decided and announced the Fort Wayne hearings had no knowledge of the Magnavox elections.

Now they also relying on a -- on a newspaper, petitioner relies on a newspaper account in which there was a reference made to union-busting.

The writer of that account testified at the trial and was present at this conference which was recorded and is part of the record between Congressman Walter and Mr. Goldstein.

At that -- to go back that conference for a minute, Mr. Goldstein and this is also on page 77 said, “Let me say this.

As far as I am concerned, this visit of mine was simply for the purpose of asking the question that I mentioned a moment ago, whether or not you were aware of that election, and if not, to tell you about it, and to say this: that it looked to us and it would look to a lot of people as though the coincidence of the two was more than a coincidence.

Now, I am saying that without accusing you.”

Chairman Walter, “I do not care if you accuse me or not.

I do not care what you have to say about me.

But this telegram said very definitely that this was a case of union-busting.

Now, there is no one on this committee interested in busting unions.

All of us have very established records, but all of us are interested in seeing your union go out of business, because we do not believe it is good for the United States.”

And the Court of Appeals with respect to that statement, that Congressman Walters made in retort to the suggestion -- suggested accusation made by Mr. Goldstein had this to say, and this at page 25 of our brief.

The Court of Appeals said, “It can be gleaned that Mr. Walter showed some displeasure which, under the circumstances, and having in mind the abusive and insulting telegram, can be understood and as readily be excused.

Congressmen are more fortunate than judges in at least this respect, that when attacked unjustly, they are at liberty to defend themselves, and to express themselves forcefully and vigorously.”

Now, later on -- it is also interesting to note that Mr. Goldstein at this interview, which was recorded and really took the form of a committee hearing, refused to -- to be sworn to -- to state under oath that he knew as a matter of fact that there was going to be an election held on the date indicated and that it was that reason that he requested in the -- the continuance of the hearing.

Since he refused to make a part of assertion on that score, this particular meeting adjourned without any action being taken on the request for a continuance.

A few days later, there was a telegram sent from petitioner's counsel to these -- the committee requesting a continuance, that was at first denied, but later on, Mr. Tavenner's testimony shows that when he checked into the question of the hearing at Magnavox and found out the hearing was coming up, he got in touched with Mr. Walter and there was a continuance granted.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript:

Argument of Joseph L. Rauh, Jr.

Chief Justice Earl Warren: Number 9, Robert Shelton, Petitioner, versus United States.

Mr. Rauh you may proceed with your argument.

Mr. Joseph L. Rauh, Jr.: May it please the Court.

What is under review here is the conviction of petitioner, Robert Shelton, a copyeditor on the New York Times for contempt of Congress in refusing to answer two questions concerning communism put to him by the Senate Internal Security Subcommittee in 1956.

Petitioner, despite an unblemished record and his ability to keep his job was sentenced to six months in jail and his conviction was affirmed by the Court of Appeals for the District of Columbia Section.

The facts are these.

It's hard to know just how this investigation got started, but since Chairman Eastland suggested that it starts with a man Winston Burdett, we will assume that in someway, the overall investigation got started through him.

In June of 1955, Winston Burdett, a CBS radio commentator testified before the Senate Internal Security Subcommittee in the course of hearings on strategy and tactics of world communism, he revealed that he had been a member of the Communist Party in the late 30's and early 40's when he had been employed by the Brooklyn Eagle.

He did not mention petitioner nor, and the record is clear on this, has anyone ever at any time mentioned petitioner in any public hearing.

As to the private hearing, we will come to that in a moment.

Well, Mr. Burdett testified in June of 1955, in November -- on November 24, 1955, an aide of the Senate Internal Security Subcommittee showed up at the New York Times with 30 subpoenas under his arm for an executive session of that committee on December 7, 1955.

In order to make it easier to find the people in New York Times, had assigned a man to help locate them.

So the aide of the committee went to this man and showed him some names and they finally got to a name, a subpoena for a man named Willard Shelton, a nationally known columnist.

“Well,” said the man who was in the Times, “There isn't any.

We have no Willard Shelton.”

So there must have been some talk and it isn't clear and then the man said, “We have a few others.

We have one -- we have some in the typo side, we have one on the news or editorial side.”

So the aide of the committee says, “What's his name?”

He says, “Well, it's Robert Shelton.”

So the committee aide wasn't clear what to do so he called back to the -- subcommittee, talked to the subcommittee counsel, Mr. Sourwine, who talked to Chairman Eastland who said, “Tell him to come.”

So the subcommittee aide took the subpoena and he wrote -- and it had in it -- typed-in “Willard Shelton” and he wrote-in “or Robert Shelton” and the man was brought in to receive his subpoena.

Now, let me make it perfectly clear here and now, we are not raising a technical question of whether the subpoena is legal.

They had issued another one we haven't -- that's of no significance.

What is of significance of course is the whole case then began to revolve around the fact that the committee had no probable or any other type of cause for calling him.

Justice Charles E. Whittaker: But the man did appear in pursuance of this subpoena?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

On this December 7, 1955, he appeared in the executive session pursuant to this subpoena.

No, I want to be more accurate.

They gave him another subpoena just for himself.

He could have one all by himself but the -- before December 7th, they had given him another subpoena just for Robert Shelton and he did appear on December 7, 1955 before the executive session.

After preliminary questions of the most routine nature, he was asked to answer the question whether he was a member of the Communist Party.

He said, I -- he pleaded the First Amendment, the scope for the committee's authority and he said, “The actual basis for the inquiry has not been stated to me nor does it appear on the subpoena.”

A very significant thing then happened.

Subcommittee counsel Mr. Sourwine said, “I am greatly surprised.

This witness was not charged with being a communist and I am surprised that he has taken this attitude or refusing to answer this question.”

That more or less wound up with a little more, the executive session, and that is not the session from which the indictment flowed.

Justice Felix Frankfurter: Mr. Rauh, you said a minute ago, it didn't appear on the subpoena.

What the -- why he was called, may I ask, were the subpoenas of this committee customarily state?

Mr. Joseph L. Rauh, Jr.: They do not sir.

And of course, this was his way of saying it wasn't --

Justice Felix Frankfurter: But I just --

Mr. Joseph L. Rauh, Jr.: -- he hasn't at all -- they did not --

Justice Felix Frankfurter: I just want to know what the practice was.

Or in -- generally, in congressional investigations in which people who are summoned to appear by compulsive, by subpoena, did the subpoena state --

Mr. Joseph L. Rauh, Jr.: They do not --

Justice Felix Frankfurter: -- what they have -- the purpose?

Mr. Joseph L. Rauh, Jr.: They do not if Your Honor please in my experience with the House on Un-American Activities Committee, the Senate Internal Security Subcommittee, or the McClellan Labor Investigating Committee, but at least with the latter I can say that if you were to inquire, you would get very specific information.

Justice Felix Frankfurter: They do state the -- they do give the name of the committee or the subcommittee?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice Felix Frankfurter: Plus the room and so on?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Well, he was told he would have to come back in open session and he returned on January 6, 1956 in open session and this is the session from which the indictment flowed.

Well, petitioner quickly said, “I challenge the jurisdiction.

I have no information to give you.

I failed to see why I'm involved in this hearing.”

And then above all he said, “I am a victim of accident.

You subpoenaed Willard Shelton.

I was the Shelton that was there.

I was called.”

Well, they told him nothing.

They just said this -- as Mr. Sourwine put it on page 84 of the transcript, “This is absurd, answer the questions,” which he then declined to do.

Justice John M. Harlan: On what ground?

Mr. Joseph L. Rauh, Jr.: On these -- all of these Your Honor, the First Amendment, the jurisdiction, victim of accident.

Justice John M. Harlan: Not the Fifth?

Mr. Joseph L. Rauh, Jr.: Oh incrimi -- self-incrimination, no Your Honor.

It's only those who plead the Fifth Amendment that don't come here, the self-incrimination is those who don't plead self-incrimination --

Justice John M. Harlan: (Inaudible)

Mr. Joseph L. Rauh, Jr.: -- that come here, Your Honor.

Justice Felix Frankfurter: The counsel -- does he have counsel (Voice Overlap) --

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor, and we were not his counsel but he did have counsel.

Justice Felix Frankfurter: He did have counsel.

Mr. Joseph L. Rauh, Jr.: Well, he refused to answer three questions, two of which he was indicted and two of which he's been convicted for.

He was indicted for three, “Are you a member of the party?

Did you have a certain conversation with a certain person?”

And both these, he refused to answer, both of these he was convicted for.

Now --

Justice Potter Stewart: He did as a matter of fact answered good many preliminary questions.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor but very -- all about his education --

Justice Potter Stewart: Where he --

Mr. Joseph L. Rauh, Jr.: -- where he's been.

Of course he answered he's been on PM, just made the victim of accident thing clear because when they asked him, “Have you been on PM?

”It's perfectly clear they were thinking of Willard Shelton who has of course been a very distinguished writer for the newspaper.

Well, the trial started in January 1957 on the indictment for his refusal to answer these two questions and it was clear to everyone that our major defense would be probable cause.

So we issued a subpoena for all the information they have on their -- in their files about Robert Shelton at the time they called him. What we wanted to do is to get a concession.

They didn't have any.

We thought that be the end of the case.

The judge -- the Government argued, “Oh, you can't have that because we don't need probable cause.”

The judge quashed the subpoena so we went to trial.

The prosecution started in by this statement.

We do not have to prove probable cause because a congressional committee can call the man off the street.

That's on page 40 of the record because I thought maybe you wouldn't believe me that a representative of the United States of America had said, “We can call a man off the street.”

But he said -- I must say, I said that was shocking then, and I feel the same way now, and I'm going to show that this is essentially what the position of the Government of the United States is today in this Court.

But he said, “I'm not going to just rely on the man off the street doctrine.

I want to prove that we had probable cause.”

So he called subcommittee counsel Sourwine.

Now remember that in 1957, at the executive session, subcommittee counsel Sourwine said, “I'm greatly surprised when this man -- when petitioner refused to answer,” and said, “This witness is not accused of being a communist.”

Then a year later at the trial, Mr. Sourwine made a 180 degree shift.

He remembered a letter, a letter with an informant pseudonym X which had been received by the Committee within one to three months prior to the December 1955 executive session.

Now, all that he could remember about this letter was this one sentence approximately as I give it to you now, from this informant pseudonym X.

Justice John M. Harlan: Is that in the record?

Mr. Joseph L. Rauh, Jr.: Yes, oh, no, no, that's the whole point in the case Your Honor, is they wouldn't give us the letter.

Mr. Sourwine's testimony and maybe the best place to show you what he said about this is Record 98 and about two lines or three lines -- three questions down, the answer -- it's fully on 132 on page 98.

The committee had at the time when subpoena was issued information that a man named Shelton who was employed in the news department or city side of the New York Times, who's a member of a communist group on the time, was active in the affairs of that group and would be or should be in a position to give the committee information about the activities of that group.

And then down below at the very bottom, you will see Mr. Justice Harlan, it came by a letter -- the very bottom of the page there, five lines up.

Now -- so, although he had said in December 1955, he was surprised, although he had said that the man was not accused of -- of saying -- being a communist, he now says that within one to three months before that time, they've gotten this letter with the pseudonym with this information.

Justice Potter Stewart: This is a testimony at -- at the criminal trial.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice Potter Stewart: And what was the date of the trial?

Mr. Joseph L. Rauh, Jr.: January 1957, about a year later.

He couldn't -- he'd been surprised that -- well, naturally, on cross-examination, we brought out the inconsistencies and the incredibility of Mr. Sourwine's testimony.

We asked him, “Why did you issue it to Willard Shelton if you had no name there?”

Oh, no answer.

“Why were you surprised if you had this letter?

Why did -- why did you say he wasn't accused of -- being a communist if you had a letter that said he was accused?”

He said there were 1500 or 1800 names in this letter.

So we asked him, “Can you tell us anything else about this letter except this one sentence?”

No, he remembered nothing about the letter except the one sentence and look at the coincidence of that one sentence he could remember.

It was just those things that would rationalize, having issued a subpoena to Willard Shelton and called a man named Robert Shelton.

It rationalized that we didn't have his first name, and he was on the news side of the Times.

Actually, he is not, he is the copyeditor, not in the editorial side because the news side, it was (Inaudible), but that's -- I don't make anything.

I'm only showing that in our judgment we have proved it was fabricated.

Now --

Justice William J. Brennan: (Inaudible)

Mr. Joseph L. Rauh, Jr.: Didn't do it.

Justice William J. Brennan: Mr. Sourwine?

Mr. Joseph L. Rauh, Jr.: Well, no, no.

He said -- he said they had a letter.

Justice William J. Brennan: (Inaudible)

Mr. Joseph L. Rauh, Jr.: He said that Mr. Robert Morris had it at the time he was (Inaudible) -- well of course, Your Honor, you see the next step.

We asked him the letter.

Justice William J. Brennan: (Inaudible)

Mr. Joseph L. Rauh, Jr.: That -- that's just what exactly where I was.

Obviously, he's saying he had this letter.

Now, we were entitled to this letter under the Sixth Amendment whether I had been able to demonstrate on cross-examination a prima facie case that this was a manufactured testimony, we were entitled to it anyway.

But I thought it's advisable to be cautious and so we first proved that it was manu -- we first made a prima facie case of incredibility of the witness, then we asked for the letter.

We asked for the letter four times.

Justice William J. Brennan: And what happened?

Mr. Joseph L. Rauh, Jr.: Mr. Sourwine refused to produce it.

Justice William J. Brennan: (Inaudible)

Mr. Joseph L. Rauh, Jr.: Oh yes Your Honor.

We kept asking the judge.

But Mr. Sourwine kept saying he wouldn't produce it and the judge was in this dilemma.

There is nothing confidential about the letter anyway because there is a pseudonym.

We couldn't -- and we're not now talking about an informant's privilege because we haven't reached that yet.

The letter itself doesn't giveaway anything.

It's a -- it had a pseudonym.

The judge had this dilemma.

Sourwine said, he wasn't -- he wouldn't produce the letter.

The judge, we told --

Justice William J. Brennan: Who's the judge?

Mr. Joseph L. Rauh, Jr.: The judge was Mr. -- Judge Rizley of a -- a visiting judge at this time and so the judge had this dilemma.

He wasn't sure exactly -- he saw our point that Sixth Amendment gave us the right to the letter, but he said, “I don't think you need probable cause anyway and so I'm not going to give you the letter.”

And then a little later, the Judge said to me at one time, he said, “Mr. Rauh, I've got a theory of probable cause.

The probable cause at the open hearing comes from the closed hearing.”

And I said, “Yes, Your Honor.

But under Silverthorne and Nardone, you couldn't possibly use the fruits of one wrongful calling to make a rightful calling” and I guess I scared him off with that because there's nothing in the opinion at the end making that point and the Government doesn't raise it here and of course they couldn't because it wasn't their theory of probable cause.

The only theory of probable cause that's been offered at the trial was Mr. Sourwine's theory that he had a letter which we said he didn't have and which he wouldn't produce.

Justice Felix Frankfurter: Was Mr. Morris called as a witness?

Mr. Joseph L. Rauh, Jr.: No, Your Honor.

Justice Felix Frankfurter: Was he available?

Mr. Joseph L. Rauh, Jr.: He was a judge at that time.

I don't know whether -- I don't know whether he's available or not.

Justice Felix Frankfurter: I don't mean Judge Morris.

This is Robert Morris (Voice Overlap) --

Mr. Joseph L. Rauh, Jr.: Yes, he was a judge in the court, in a municipal court in New York, if Your Honor please.

I don't know whether he was (Voice Overlap) --

Justice Felix Frankfurter: (Inaudible)

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

The court after all this -- all this -- this -- the court then makes its decision.

And the court says, “It's not judiciably reviewable.

You don't -- we won't look.”

And the Court makes its basic decision that you don't -- the Government does not have to prove probable cause when challenged.

He did say as afterthought that the -- that the committee could call anybody off the times. After all he said there was some testimony of communism off the times, therefore you could anybody and that's probable cause.

The Court of Appeals held and I think this is where he's looking at on page 244 of the record, the Court of Appeals' decision is, “You can call anybody off the working press because there was evidence of Communism on the working press.”

In other words, they said, “You can call anybody you want from the newspaper industry because there was some evidence that were some Communists in the newspaper industry.”

This is -- this is on page 244.

After the important revelations of (Inaudible) which I told you where there had been communists in the Brooklyn Eagle in the 1930's and early 1940's, that were surely not a dragnet process to call upon as a member of the working press to check on possible Communist Party activities among his fellow employees.

Well, as you can guess, the Government has dropped that theory.

The Government has completely dropped any thought that you could say it was probable cause to call a man at random off the press because there was some other Communists on the press.

They don't argue that in this Court, therefore, the theory of the -- of the affirmance has been dropped.

The theory of the judge in which he tried once, but then dropped that you could get probable cause from a bad calling has been dropped.

Justice Charles E. Whittaker: Mr. Rauh, if I may ask you please sir?

Just what do you contemplate to mean when you say, to use the phrase, “probable cause” --

Mr. Joseph L. Rauh, Jr.: I contemplate --

Justice Charles E. Whittaker: -- in this sense?

Mr. Joseph L. Rauh, Jr.: I contemplated, if Your Honor please, two things.

I contemplate probable cause to believe that the witness will have testimony pertinent to the matter under inquiry.

Probable cause that the witness will have testimony pertinent to the question under inquiry, that's what I mean by it.

The Government as I'm coming to, has a diluted theory which I would like to come to, but to me probable cause means probability that this man will have evidence pertinent and relevant to the question under inquiry.

Justice Charles E. Whittaker: And that's the -- that's the Government's obligation to show?

Mr. Joseph L. Rauh, Jr.: At least when challenged, if Your Honor please.

I know, I would -- if you haven't challenged it and we haven't made probable cause an issue, I don't say they would have had to prove it.

I don't -- I haven't -- I don't have to carry such a burden.

Maybe they would have, but in this case, I shall probable cause before trial, at trial, Court of Appeals and as you can see, I -- I'm relying on it here.

Justice John M. Harlan: You're assuming in your probable cause argument that this is a legitimate congressional inquiry, in other words, an inquiry in aid of a legislative purpose.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice John M. Harlan: That's the premise --

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice John M. Harlan: -- which you started for your probable cause argument?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice John M. Harlan: In other words, you're not arguing that probable cause was in fact -- or in determining whether this is exposure for exposure's sake and whatnot.

Mr. Joseph L. Rauh, Jr.: No, Your Honor.

Justice Charles E. Whittaker: (Inaudible) probable cause is shown by legally competent evidence?

Mr. Joseph L. Rauh, Jr.: Oh, precisely Your Honor.

Justice Charles E. Whittaker: And then you're relying in the Fourth Amendment here?

Mr. Joseph L. Rauh, Jr.: I'm relying on the Fourth and First and the Fifth.

Justice Charles E. Whittaker: But what about the Griffin case and the Carroll case, which say that you don't have to show even probable cause to sustain a search by legally competent evidence, but that it may be done even by hearsay.

Mr. Joseph L. Rauh, Jr.: I'm not -- that is not my reading of those cases because if you take even the Roviaro case, this Court's statement there on the -- on a very identical point Your Honor was in probable cause cases, “The Government has been required to disclose the identity of the informant when there was sufficient evidence apart from his confidential communication.”

We're not even asking for that far.

We're simply asking that the Sixth Amendment apply to a document which we were -- which first, would apply whether I had demonstrated that Mr. Sourwine was prime facie not telling the truth, and second, whether it would be a fortiori when you'd made this much of a case, Your Honors.

Justice Charles E. Whittaker: In the application of the Jenkins doctrine?

Mr. Joseph L. Rauh, Jr.: No, no, no.

Oh man, not -- not at all.

We put probable cause an issue.

Mr. Sourwine testified it's all wrapped up in one little piece of paper.

Certainly, we have the right to that piece of paper.

The Sixth Amendment is -- is -- is not applicable on a criminal trial.

Now, the Government drops what the Court of Appeals relied on but it's got four arguments here and I like to take them up one-by-one and maybe I could come back to --

Justice William J. Brennan: Just to be sure because I expect the clause of the Sixth Amendment, you're invoking these rights to (Inaudible)

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice William J. Brennan: (Inaudible)

Mr. Joseph L. Rauh, Jr.: No, I met this confrontation sir.

Now, the Government makes four arguments here, dropping the one that Court of Appeals relied on and the afterthought of the District Court.

The Government, first, says, “We didn't raise it.”

Now honestly, when you come in and say you're a victim of accident, when -- well, as matter of fact, what the Government says that we didn't raise it, they admit.

I must say the Government sometimes -- it kind of amazes me.

The Government says, “You raised probable cause.”

They concede this at pages 14 and 30 of their brief.

We raised probable cause but that doesn't raise the Fourth Amendment.

What kind of a -- a pleading -- this isn't -- it was Robert Shelton that went before that committee, not Sergeant Hawkins in common law pleading.

The Government admits, “We raised probable cause” and said, “We didn't raise the Fourth Amendment.”

Well --

Justice Felix Frankfurter: May I -- may I go back here on the Fourth, but may I go back or down to the Sixth, do you emphasize the Sixth? What part of the Sixth?

Mr. Joseph L. Rauh, Jr.: Confrontation, if Your Honor please.

Justice Felix Frankfurter: Confrontation of what?

Mr. Joseph L. Rauh, Jr.: Of the witness -- by the witness -- by the witnesses against him which would include if Mr. Sourwine is relying upon a piece of paper.

Justice Felix Frankfurter: But he said he hasn't got it.

Mr. Joseph L. Rauh, Jr.: No, he didn't Your Honor.

I'm sorry.

Justice Felix Frankfurter: He said -- he said it's in the possession now of Mr. Morris.

Mr. Joseph L. Rauh, Jr.: He didn't indicate the slightest difficulty in getting it.

They never --

Justice Felix Frankfurter: It's said in the record and he said he -- “I think it is locked in the safe of the present chief counsel Robert Morris.”

“Is that (Inaudible) Internal Security Committee?”

“I'm unable to say for sure, but I doubt it.”

“Why do you doubt it?”

“I think it is locked in the safe of the present chief counsel, Mr. Robert Morris.”

That's why I asked you whether you called Mr. Robert Morris.

Mr. Joseph L. Rauh, Jr.: That wasn't our obligation, Your Honor.

The --

Justice Felix Frankfurter: But if a man says, “I haven't got the letter,” and he tells you who has it, (Inaudible) your obligation?

Mr. Joseph L. Rauh, Jr.: If Your Honor please, may I just explain this right and very clearly here?

Mr. Sourwine never at any time suggested he could not ask Mr. Morris and produce a letter.

He said, “I will not, because it's privilege.

It's confidential.”

He never -- there was never in the confines of that courtroom ever a suggestion that the letter was not made available -- was not --

Justice Felix Frankfurter: I'm just (Inaudible) with my reading of English mean that this statement, clearly as possible, that it's now locked up in the safe of Mr. Robert Morris.

Mr. Joseph L. Rauh, Jr.: But, if Your Honor, may I suggest to Your Honor --

Justice Felix Frankfurter: Now, you say you prove them to be a liar, and that the totality shows it wasn't -- that that's baseless and it's still in his possession, then I'll listen to you.

Mr. Joseph L. Rauh, Jr.: If Your Honor pleases, I don't suggest that Mr. Morris didn't have it, but when the assistant chief counsel comes and says, “It's confidential,” never suggests that if he asks Mr. Morris had given to him, he wouldn't, that there would never in this entire five-year litigation, I would suggest that Your Honors the first person who has ever made the slightest intimation that this document was not available to Mr. Sourwine by the simplest request of Mr. Morris.

But Mr. Sourwine said, “This document is confidential and I won't produce it.”

This --

Justice Felix Frankfurter: That isn't all he said and I've just read you.

I haven't read this record. Could you point out to me where there's a subsequent contradiction of this statement that the doctrine -- that the letter is locked in the safe of the present chief counsel Mr. Robert.

I'd be glad if you'll show me.

And of course -- in the cases where subpoenas are issued for the production of document, it's a common place, I don't have to tell you about these people, it's a common place that the subpoena must be directed to the custodian of the document and if -- if it's directed to X and X is brought in and says, “I haven't got it,” it's X's, it's in Y's custody, unless he shifted it to -- by its custody after the subpoena, and therefore subject to contempt (Inaudible) you got to go after Y.

Mr. Joseph L. Rauh, Jr.: I must respectfully disagree that when you are going after the official representative, testifying at the hearing as the agent of the committee, the only person testifying who says that -- who never claims his document is not available to him, who in fact makes perfectly clear that he couldn't produce it but he says, “I won't because it's confidential.”

No one, not even the Government, has ever suggested until -- no one, as I say, until Your Honor raised this point, has ever suggested that Mr. Sourwine representing the committee was not in a position to produce a document which another agent of the committee had and was available to Mr. Sourwine when he says, “I will not give it to you.”

Justice Felix Frankfurter: (Inaudible) case is going to turn on my construction of what I've read to you or your construction of what I read to you, is that what this case is about?

Mr. Joseph L. Rauh, Jr.: I don't believe so Your Honor.

Now, the Government raised four points.

They dropped the one that Court of Appeals raised, they made four where they said, “First, we didn't raised it” and I've told you, (Inaudible) raised probable cause, but we didn't raise the Fourth Amendment.”

Justice Potter Stewart: Now, did you at the trial though?

Mr. Joseph L. Rauh, Jr.: Oh, yes.

Justice Potter Stewart: Are you talking about, at least -- I'm talking about two different things.

Mr. Joseph L. Rauh, Jr.: Fourth, Fifth and First Amendment probable cause, we raised at the trial and the Court of Appeals and in this Court on petition for cert --

Justice Potter Stewart: Have you got a handy reference to the transcript of what you've raised in the trial?

Mr. Joseph L. Rauh, Jr.: Right at the very beginning on page 40, you will see that he's already answering me Mr. -- I may say he used the language of Mr. Rauh that -- this is Mr. Hicks, at the bottom of page 40, the man off the street could be off the street and ask, “Are you on one of the persons against whom we would do it.”

“I had already prior to that time said that you couldn't call a man off the street.”

Again, on page 37, I say, the middle of page 37, I'm quoting myself, “I would say that that is both a violation of Fourth and Fifth Amendments.

It's an absence of probable cause.”

Now, the second Government argument is the Fourth Amendment does not apply to subpoenas to testify.

They say -- I must say that this -- it's a little hard to believe this sentence, but the Government of page 44 of their brief says, “The requirement that a person appeared briefly before a congressional committee is not subject to the Fourth Amendment.”

I don't know what the “briefly” means.

The requirement that you appear briefly at the police station would be under the Fourth Amendment.

It seems to me the requirement you appeared briefly before a congressional committee to have your mind searched is certainly under the Fourth Amendment.

Well, Your Honors have settled this -- Watkins, Barenblatt, and Wilkinson, all contain statements that search and seizure and probable cause apply.

The Government says, “That's only the First Amendment, not the Fourth.”

But I suggest --

Justice Potter Stewart: Did any one of those three opinions talking -- mentioned the Fourth Amendment?

Mr. Joseph L. Rauh, Jr.: Yeah, they mentioned --

Justice John M. Harlan: (Inaudible) news to me, I was just wondering where did you find the Fourth Amendment (Voice Overlap) --

Mr. Joseph L. Rauh, Jr.: Yeah, they mentioned -- they used the language of the Fourth Amendment.

I didn't suggest they used the Fourth Amendment.

I was very -- the Watkins case, “Witnesses cannot be subjected to unreasonable search and seizure.”

That's certainly the language of the Fourth Amendment.

Barenblatt says, that this case did not involve indiscriminate dragnet procedures lacking in probable cause.

Now, search and seizure and probable cause are the language of the Fourth Amendment.

There's no other Amendment that those words refer to.

Justice Felix Frankfurter: Let me ask you this general question Mr. Rauh.

If I'm subpoenaed by a committee of Congress, let's forget this committee, any committee, the agricultural committee, can I say and if I had – (Inaudible) just to review my point sir, and I say, “Would you please tell me why you're asking me to appear?

I've had the subpoena.

But before I answer any question, you must tell me why you called me?”

Is that your position?

Mr. Joseph L. Rauh, Jr.: If I say, I do not think you have probable cause or some other phrase, “I'm a victim of accident,” then they must tell you.

Actually, Your Honor, may I put your finger on -- on another ground?

This is maybe the answer again.

Remember all of this happened before Watkins.

Everything here happened before Watkins.

It is very likely that when he said, “I'm a victim of accident, they had a responsibility to tell him, “No, we have this letter” and as we're making a footnote in our reply brief, it's very possible which Your Honors don't have to go any far that -- than to say just like Your Honor said, when you raised pertinency in Watkins, they -- you have to give him an answer, so very likely when he said, “I'm a victim of accident.”

They should have give him an answer.

Justice Felix Frankfurter: Suppose -- Watkins, seems to my understanding -- Watkins relates to the pertinency of the question.

Mr. Joseph L. Rauh, Jr.: Yeah.

Justice Felix Frankfurter: I want to know whether people are summoned before -- since Watkins or since evidently from here, here or another, may a witness before -- when he gets his subpoena from the Committee on Agriculture or the joint committee that is now here in this economic testimony, and he is summoned, may say, “Please tell me why you're asking me to appear.

No accident, no nothing.”

He just wants to know whether they just (Inaudible) and scare him without thought.

Somebody had a bright idea to call Mr. Jones or Professor Jones, may a witness here at all to say, “Please tell me why you've summoned me.”

Mr. Joseph L. Rauh, Jr.: I believe yes, Your Honor.

Justice Felix Frankfurter: Alright.

Mr. Joseph L. Rauh, Jr.: But I would say in this particular case where he said I'm a victim of accident and it was a fortiori ten times over.

Justice Felix Frankfurter: Well.

Mr. Joseph L. Rauh, Jr.: Now, in our judgment, the Fourth Amendment does apply.

I mean, under our Bill of Rights, no more can a congressional Committee without probable cause search a man's mind in a (Inaudible) concession's pockets.

This is the -- the Fourth Amendment actually uses the word persons.

It's the first word in the Fourth Amendment.

Justice Felix Frankfurter: But constable can't do it, but he -- if he had -- if a constable -- I'm sorry to trouble you, but I'd like to understand something that's so unsettled in my mind.

But if a constable has a subpoena, may the witness say, “I won't go with you until you tell me why they issued this subpoena.”

Mr. Joseph L. Rauh, Jr.: They can't say that to a constable but he can --

Justice Felix Frankfurter: To say it in court?

Mr. Joseph L. Rauh, Jr.: But he can quash everything that happened as a result of it.

Justice Felix Frankfurter: What he does is -- if for some reason, the subpoena is inadequate under -- on such the particular Fourth Amendment, he can move to quash the subpoena.

As I understand, there's nothing like that has done here, was it?

Mr. Joseph L. Rauh, Jr.: Yes.

Justice Felix Frankfurter: I thought --

Mr. Joseph L. Rauh, Jr.: He will try not to be sworn, if Your Honor please.

He fought -- Mr. Shelton fought this all the way --

Justice Felix Frankfurter: I understand --

Mr. Joseph L. Rauh, Jr.: (Inaudible)

Justice Felix Frankfurter: But I understand that a new subpoena was issued in his proper name, is that right?

Mr. Joseph L. Rauh, Jr.: Yes, but without probable cause.

Justice Felix Frankfurter: If you get me to say you have to have probable cause, then it's the end of the case.

Mr. Joseph L. Rauh, Jr.: Precisely, Your Honor. [Laughter]

That's exactly what I'm trying to do.

Justice Felix Frankfurter: I know you're trying to do that.

Mr. Joseph L. Rauh, Jr.: And I'd also -- what occurred to me that on the previous decisions of this Court, the Court said nothing except that no man in this land can be called before a congressional Committee without probable cause.

I have so read pages --

Justice Felix Frankfurter: Where -- give me one decision that's so decided that.

Mr. Joseph L. Rauh, Jr.: I would say, for example, that Boyd and Brimson, both of which are subpoenas duces tecum are no different insofar as the -- as the principle is concerned, there's no difference between the subpoena duces tecum and the subpoena to testify, and you have many times held that a man cannot be called before a congressional committee with documents without probable cause and so it seems to me it's the same rule with subpoena (Inaudible)

Justice Felix Frankfurter: (Inaudible), is this Brimson?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice Felix Frankfurter: I mean I.C.C. against Brimson?

Mr. Joseph L. Rauh, Jr.: Yes.

Justice Felix Frankfurter: In 154.

I'm learning a lot of laws, but that's the fair state, Mr. Rauh.

Mr. Joseph L. Rauh, Jr.: Now, the Government doesn't deny that the First Amendment applies.

The Government doesn't deny that the First Amendment applies and there must be a likelihood even the Government doesn't claim -- making -- you can just call these people.

They say there must be a likelihood.

Justice William J. Brennan: Well, that's because of the --

Mr. Joseph L. Rauh, Jr.: (Inaudible)

Justice William J. Brennan: -- of the inquiry (Voice Overlap) --

Mr. Joseph L. Rauh, Jr.: No, they say the First Amendment.

They say it is --

Justice William J. Brennan: (Inaudible) within the area of the First Amendment, that's --

Mr. Joseph L. Rauh, Jr.: No, they said that nobody can be called without likelihood.

They concede that much.

I don't know what you do when you start with the word likelihood and either way probable cause because as you run away from likelihood, what likelihood mean?

Pretty soon, you're at possibility and not probability; nevertheless, the Government says it's all a matter of likelihood.

Well, in our judgment, the Fourth Amendment applies as well as the First.

Well, I want to close this today's session on this note.

There is nothing in this record, nothing in this record that shows either probable cause or likelihood, that is the real -- that is the ground on which there must be an acquittal.

There is not -- assuming the Government is right that it's only likelihood, assuming I'm wrong that it has to be probable cause under the Fourth Amendment, there's nothing to show likelihood, because the only thing on which they predicate likelihood of information is a letter that was withheld.

In other words, the Government couldn't quite say we're relying on this letter.

They used the letter five times in their brief but they never explained how they can rely on it when it was withheld.

They admit they have to prove likelihood.

They don't just show any ground in which they can rely on the letter.

They admit there is nothing else.

So you know what they finally come up with?

They've come up with the argument that it's unreviewable.

They have come up now finally, if Your Honors will look on pages 59 and 60 of the Government's brief, their final argument is this Court has no grounds on which to review.

You cannot review whether there was a likelihood and I would just like to read this sentence from the concurring opinion in Watkins by Mr. Justice Frankfurter, which seems to me that answer the Government's unreviewability argument better than any way I could put it.

“By making the federal judiciary, the affirmative agency for enforcing the authority that underlies the congressional power to punish for contempt, Congress necessarily brings into play the specific provisions of the Constitution relating to the prosecution of our offenses and those implied restrictions under which the Court functions.”

Now, if Your Honors please, the Government has admitted, they have to have a likelihood of information from this witness in order to call it.

We said it's probable cause but they admit likelihood.

The only likelihood is a document that's been withheld wrongfully under the confrontation part of the Sixth Amendment.

This Court has made clear that the -- well, its processes will not be used to punish people criminally unless the Sixth Amendment, unless the processes of the Court can be upheld.

Therefore, even on the Government's theory of likelihood, there is no possible way in which this conviction can be sustained because it just so many words, the Government in five years of litigation has never told us how they could use this letter.

I hope tomorrow, we will find out at long last what the Government's theory is.

They've thrown away the theory of the Court of Appeals namely, that you could anybody out in the newspapers.

They have said -- they have relied on a letter that we weren't shown under circumstances where it's quite obvious.

We made a prime facie case of incredibility even though we didn't have to, and now they say to us at a final matter, this is unreviewable.

Your Honors cannot question whether there was the likelihood.

In other words, the Government's position in this Court is really back to where I was in the District Court when the prosecutor said we can call the man off the street.

Chief Justice Earl Warren: We'll recess.

Print this transcript Transcript:

Argument of Bruce J. Terris

Mr. Bruce J. Terris: -- which is the last of the cases which should -- which are being argued in these series of six contempt of Congress cases.

In the appendix, we have set forth principal contentions made by both various petitioners in the six cases, and by the Government, and the places in the briefs where these contentions are made.

Unknown Speaker: Which cases that are made –-

Mr. Bruce J. Terris: It's Gojack, number 128.

It's the last – it's the last page that folds out.

As it can readily be seen from the appendix, many of the contentions are repeated often several times in the different cases both by the petitioners and by the Government.

And in order to avoid constant repetition, my colleagues and myself have divided the legal arguments which do not depend primarily on the various facts of the different cases between ourselves.

I will cover the issue.

Chief Justice Earl Warren: What does that appendix contained?

We don't have it here.

We only have the cases distributed that are for this week.

What are some point are you're making in connection with it?

Mr. Bruce J. Terris: Well, all -- the only -- only point I'm making is that I'd like to divide three -- three of the arguments, the legal arguments which don't depend on the -- on the facts of the -- of the different cases between ourselves, so that we don't repeat in each of the cases in which there are --

Chief Justice Earl Warren: No, no.

I don't mean that.

You're talking about the appendix (Voice Overlap) some other case and we don't have that distributed.

What -- what --

Mr. Bruce J. Terris: The only point I was making was that it -- I'm sorry, if you have the appendix before you, you would make it a little easier to point out just which of the issues were divided.

That's all Your Honor.

We're not making any --

Chief Justice Earl Warren: Alright.

Mr. Bruce J. Terris: -- substantive contention from --

Chief Justice Earl Warren: Very well --

Mr. Bruce J. Terris: -- from the appendix.

Justice Felix Frankfurter: Next time you have a situation in putting the first point that is (Voice Overlap) --

Mr. Bruce J. Terris: Yes sir.

The difficulty was, Your Honor, we didn't know all the contentions that we're going to make either ourselves or with the various petitioners.

I will cover the issue whether the Committee -- whether a congressional committee must have probable cause in order to subpoena a witness to testify before it.

And I also hope at the end of my argument to discuss the contention that the indictments were invalid, because they failed to specify the precise subject under inquiry.

Mr. Maroney will argue the -- the issue whether the indictments were invalid because the Government employees on the grand jury are alternatively whether the petitioners in these various cases were entitled to hearing.

Chief Justice Earl Warren: Well, do you argue in this case?

Mr. Bruce J. Terris: No.

That will be in -- that will be in the Russell case, Your Honor.

Chief Justice Earl Warren: Would that mean that you're not going to take up all the issues that are in this case here?

You're going to leave us down to the sixth case before you --

Mr. Bruce J. Terris: Well, the Russell case is the second (Voice Overlap) --

Chief Justice Earl Warren: Will you tell us what the issues are in this case that's in our procedure?

Mr. Bruce J. Terris: Well, the Russell case Your Honor is the second case and Mr. Raul (ph) in his brief also says that he will leave his argument on that issue to the Russell case and then we have -- and we have done the same here of course as it mentioned in oral argument or in his brief except for the rely on the brief in the Russell case.

Chief Justice Earl Warren: But as to those cases here today, we will hear the arguments on all the issues and not -- and not leave some of them to subsequent cases.

That's a procedure we must follow.

Mr. Bruce J. Terris: Well, the Russell case is the second one, Your Honor.

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: And according to the -- to the substantive contentions which are made by the petitioner in this case and the one which is relied on entirely in oral argument and almost entirely in his brief.

And that is his contention that the Fourth Amendment was violated because the Subcommittee did not have probable cause in order to sub -- to subpoena him to appear before it.

We submit first, the petitioner cannot raise this contention since he did not make it at the time he appeared before the Subcommittee.

In our view, a witness before a congressional committee can raise its trial for contempt only the issues which he raises before the Committee itself.

And we believe that the only exceptions concern the elements of the crime which the Government must prove of course at the trial for contempt whether the witness raises them before the congressional committee or he does not.

Justice Hugo L. Black: May I ask you if that doesn't necessarily almost lead to the necessity for a witness as distinguished from a defendant carrying a lawyer with him when he goes to the Committee?

Mr. Bruce J. Terris: We are as a matter of practice.

His witnesses, I think almost 100% of them do have a lawyer with them.

And of course in this case, the petitioner did a very distinguished lawyer.

Justice Hugo L. Black: Well, as a matter of fact, if you're talking about this particular type of witness, but there are many witnesses that go before committed.

They are -- they have their legal rights waived because they don't have a lawyer.

Mr. Bruce J. Terris: We --

Justice Hugo L. Black: Maybe of some (Inaudible) to the charge that they're really not investigating but tried.

Mr. Bruce J. Terris: Well, Your Honor, presumably, if the witness does not expect to -- to answer all the questions, he will bring a lawyer.

But this -- this contention which I've just made is not -- is not a novel one.

It has been held in numerous decisions by this Court, only last term on the Deutch case.This Court, we believe, made the exact distinction between elements of the crime and other issues, because in the Deutch case, the Court held as it earlier held in the Barenblatt case that a witness cannot raise at his trial for contempt the issue that he was not apprised of the pertinency of the questions, unless he questions the pertinency of the questions when he appears before the Committee.

And on the other hand, in the Deutch case, the Court held that since the contempt of Congress statute explicitly provides that the Gov -- that the questions must be pertinent but the Government is required to prove the actual pertinency of the questions to the subject under inquiry, even though the witness makes no objection on the ground of pertinency when he appears before the Committee.

I like to develop this contention at some length --

Justice Felix Frankfurter: Before you start this, I'd like to -- of what's going with Justice Black's question from a different point of view not joining, but I ask you a question in reference to it.

Are we dealing with the immediate case before us on the assumption of the Un-American Committee investigations to present legal questions ad hoc as it grow with reference to that Committee?

Is there going to be -- is that being build up with jurisprudence specially with reference to Un-American Committee investigations or are we talking about Congressional investigations?

Mr. Bruce J. Terris: I assume the latter, Your Honor.

Justice Felix Frankfurter: That I suppose (Voice Overlap) then your answer to Justice Black's question is inadequate.

If you say in these cases, witnesses have -- 100% of them have lawyers.

That doesn't reach my concern of what the scope, the right, the power, the constitutional power, and the constitutional limitations of Congressional Investigations not Un-American Committee Investigation.

Mr. Bruce J. Terris: Your Honor, in -- in our view, it doesn't depend on the -- on the kind of Committee here and I'd say --

Justice Felix Frankfurter: Alright.

Your answer isn't adequate or it doesn't meet Justice Black's question if I may say so.

Mr. Bruce J. Terris: Well, I -- I suppose that ultimately we come down squarely on the whole line of cases which this -- which this Court has decided.

Justice Felix Frankfurter: But not with reference to this Committee.

Mr. Bruce J. Terris: No, Your Honor.

We get in reference -- in reference --

Justice Felix Frankfurter: Very well.

Then I'm --

Mr. Bruce J. Terris: I will say the most of the cases do involve the Un-American Activities Committee because that is the -- that is the area of course where the litigation is --

Justice Felix Frankfurter: Well that's -- that --

Mr. Bruce J. Terris: -- has a reason.

Justice Felix Frankfurter: Then the -- the volume of questions that have come up but we've had other Committees.

This isn't the first time that these questions arise.

There been Congressional investigations in the very first Congress, in the very first session of the very first Congress.

Mr. Bruce J. Terris: Well, of course --

Justice Felix Frankfurter: And certainly, I don't have to tell you.

There's been litigation in this Court and decisions dealing with investigations long before anybody ever thought of the Un-American Committee.

Mr. Bruce J. Terris: Of course the rationale for -- for requiring the witness to raise his objections is that even -- even if the Committee has satisfied objections which he later may set a trial, it's perfectly obvious that he would not have testified.

He would have been in contempt anyway.

And this rationale is -- is explained very clearly in the Bryan case in 339 United States which involved the question of a quorum.

And there, the court held that a witness could not raise the issue of a lack of a quorum when he was tried for contempt, when he did not raise this issue before the Committee.

Justice Felix Frankfurter: The purpose of mine eventually is to understand whether you're going to limit yourself to the series of cases that have come before us and now before us arising out of the Un-American Committee investigation, all you've been talking about the constitutional powers and limitations upon Congressional investigation.

Mr. Bruce J. Terris: Well, insofar as my -- this discussion of course is a procedural question, and this as to whether a witness must raise before the Committee itself his objections.

Justice Felix Frankfurter: You continue to say “the Committee”.

I'm saying (Voice Overlap) --

Mr. Bruce J. Terris: Well, I know.

And when I say “the Committee” I didn't mean this Committee.

Justice Felix Frankfurter: Alright.

A Committee of Congress --

Mr. Bruce J. Terris: A Committee, right.

Justice Felix Frankfurter: Well, that pertains to utility company or to General MacArthur's dismissal if he was dismissed or retirement whatever the phrase is with respect to him or whether it's a reference to Senator Thurman's perspective committee inquiry or all of multitude of subject matters that have been the subject of congressional investigations ever since the Sinclair military expeditions.

Mr. Bruce J. Terris: Exactly, Your Honor.

Justice Felix Frankfurter: Alright.

Mr. Bruce J. Terris: To rephrase my statement, we think that a witness before any congressional committee --

Justice Felix Frankfurter: Alright.

Mr. Bruce J. Terris: -- must raise his objections if he's going to rely on these objections (Voice Overlap) --

Justice Hugo L. Black: The reason I asked you the question was, I assumed that it would have to apply to any committee and that would mean that the witness that's summoned before any committee, state or federal, would always, if they really protect their constitutional rights, bring a lawyer with them.

If they have any claims to make.

Those -- few laymen would know how to do it.

Mr. Bruce J. Terris: It may well be Your Honor that the -- that they waive their rights if they -- if they don't bring a lawyer and therefore -- did not know with them.

But that is the holding of -- of this Court in numerous cases.

As I say, before grand juries for example in Hale and Henkel, the court held that a witness at his trial for contempt couldn't argue that he couldn't produce the documents because he haven't said this when he -- was asked for the documents at -- at that time.

Justice Hugo L. Black: Well, was that you -- it's your contention to that is framed as a general rule that no witness before a Committee can never raise any objection or what's asked?

If he didn't raise it before the Committee, is there a moment to ask him?

Mr. Bruce J. Terris: I think that's right Your Honor.

But the exception which I've indicated of elements of the crime --

Justice John M. Harlan: Now, does that qualify that the theory (Inaudible)?

Mr. Bruce J. Terris: I think that is certainly -- that's one of the theories.

The Bryan case has two theories.

That is one of them.

The second one is that he -- that the witness would not have testified or produced the documents even if the Committee had -- had rectified the -- the situation because he relied on entirely different contentions.

And that of course applies regardless of whether it's the kind of objection which can be rectified.

For example, in the Ollman case which concerned a grand jury, this Court gave the -- a very summarily dismissed First Amendment contentions which I assume would have been very hard to rectify in the ground that they were not raised at the time that the witness was asked to testify.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: It could not have been rectified or it could have been rectified.

Well, they could have explained to the witness the -- the information for which the basis which they had call them.

They presumably could not -- if I understand Mr. Rauh's contention correctly, he thinks that even if this evidence had been explained to the witness that it would not have been sufficient.

Of course, we disagree with that.

In this contention which we -- which I've just made concerning the Fourth Amendment, was applied by this Court in the McFall case only last term.

And there, the witness contended that the subpoena duces tecum violated the Fourth Amendment.

And this Court held that if the witness “was in doubt as to what records were required by the subpoena or founded unduly burdensome and founded to call for records unrelated to the inquiry.

He could and should if so advice the Subcommittee the court then cited the Bryan case which of course stands for this precise proposition.

Chief Justice Earl Warren: Well, he does have some information, does he not in subpoena duces tecum, but if you just pull him off of the street or pull him out of his -- out of his chair in his newspaper office and take him to the -- take him to the Committee, he doesn't have any information.

Does every -- does every witness who subpoenaed without knowledge of what -- what he's going to be up against in the Committee have to -- have to bring a lawyer or forfeit every right to contest any -- any invasion of his constitutional rights before the Committee?

Is that -- did you go that far?

Mr. Bruce J. Terris: We go -- Your Honor, we do think that he has to raise all his objections which are not elements to the crime.

However, I'm addressing myself to your point, the subpoena duces tecum gives him information.

I don't think he gives him anymore information than this subpoena does.

It tells him what records to produce, but it doesn't tell what basis that -- that request is made.

I think those two situations are -- are virtually identical.

Justice Felix Frankfurter: Now the witness who is summoned to appear in court, know what he's going to -- he's going to be asked to testify about?

Mr. Bruce J. Terris: No.

And of course -- we think (Voice Overlap) --

Justice Felix Frankfurter: We're actually told what -- why he's being summoned?

Mr. Bruce J. Terris: You Honor, we think that -- that -- that if anything the congressional committee has bro -- has broader power to have inquiry then it would be an ordinary case in the court.

Chief Justice Earl Warren: But the witness does know when he goes into a judicial proceeding that there is either -- that there's indictment on file that the person who is charged with certain crime, what the crime is and he knows that he is being -- being called by the prosecution or the defense with relation to that -- to that crime, does he not?

Mr. Bruce J. Terris: Well --

Chief Justice Earl Warren: And nothing more.

It can't go beyond that --

Mr. Bruce J. Terris: Except --

Chief Justice Earl Warren: -- that he knows, doesn't he?

Mr. Bruce J. Terris: Of course, this Court is required that before a witness has to answer, he has to be told what the subject under inquiry is if he's in doubt.

So before he makes any answer, he is told just as clearly, perhaps more clearly and probably more clearly than he would in a criminal case where the indictment may frame the outside limits of what he might be asked, but he certainly has no real idea of what's going to be in the imagination if he's the prosecutor, the defense attorney, certainly on cross-examination.

Chief Justice Earl Warren: And those can only be within the scope of -- of that offense and -- and whatever testimony he gives but here, there are no limitations rather if you're theory is correct.

Mr. Bruce J. Terris: Well, of course the questions have to be within the authorizing resolution of the Committee at first.

Second, they have to be within whatever subject under inquiry as stated to it, so there are very definite limitations on what kinds of questions can be asked.

Justice Felix Frankfurter: It could be -- this is the threshold question where they can ask, whether he must have the Committee justify to him why they issued a subpoena --

Mr. Bruce J. Terris: Precisely, Your Honor.

Justice Felix Frankfurter: -- to him in an investigation which is defined by the congressional authorization to that committee.

Mr. Bruce J. Terris: That's right, Your Honor.

Now, I'd like to turn to whether the petitioner did raise the Fourth Amendment contention because Mr. Rauh seems to think that the Government is in -- inconsistent on this point in -- in its brief.

First of all, the Fourth Amendment is never mentioned by the petitioner either in a -- during his testimony executive session or in public session.

Now the closest he comes are two statements, one which is on page 84 of the record and the other is on page 89.

On page 84 of the record, the petitioner says, "I failed to see why I'm involved in this hearing which the chairman said Wednesday stems from the Burdett testimony."

And then on page 89 in his prepared memorandum objecting to the hearing, petitioner says, "I'm involved in these hearings as a victim of accident."

And then he goes on to explain on the same paragraph that the Committee had no basis for subpoenaing him.

And this contention concludes in the last sentence of the paragraph by saying, "It appears to be just another step in the campaign to discredit the paper for which I work."

Unknown Speaker: What do you mean?

Mr. Bruce J. Terris: The second -- the second group of quotation --

Justice William O. Douglas: Yes, but what page?

Mr. Bruce J. Terris: -- rather was page 89 (Voice Overlap) --

Justice William O. Douglas: 89?

Mr. Bruce J. Terris: -- from the record.

89.

Justice William O. Douglas: 89.

Mr. Bruce J. Terris: And the first was --

Justice William O. Douglas: Yes, I've found the first (Voice Overlap) --

Mr. Bruce J. Terris: It's the first full paragraph on page 89.

Justice William O. Douglas: Yes, I see it now, thank you.

Mr. Bruce J. Terris: We think that these contentions are clearly part of petitioner's First Amendment arguments which he made very strongly at the executive sessions, repeated in the public session and all through the judicial proceedings.

We agreed that the petitioner does raise the issue of probable cause under the First Amendment.

And I think perhaps that's the difficulty that -- between the Government and Mr. Rauh.

We agreed that he raised the First Amendment contention including this probable cause, but we think that there's a substantial difference or there maybe a substantial difference between what the First Amendment requires and the Fourth Amendment requires, assuming as Mr. Rauh does that the Fourth Amendment would require the same re -- with the same kind of proof in order to call a witness before a congressional committee as it would be necessary for a police officer to make an arrest to research.

Now, of course, we don't, we don't agree with that statement of a substantive law.But if that -- but if Mr. Rauh is correct on that proposition.

Then there is a substantial difference, we believe, between the First Amendment and Fourth Amendment requirements.

At the least, we think petitioners vague objection which does not even mentioned the Fourth Amendment.

It's not the kind of clear unambiguous objection which this Court required in Deutch and Barenblatt cases in order to raise issues before a congressional committee.

I now would like to consider petitioner's contention assuming that he did properly raise the Fourth Amendment before the -- before the Subcommittee.

In here, our argument is two-fold.

First of all, we think that the Fourth Amendment does not apply the subpoenas to testify, while this Court is held in several cases that the Fourth Amendment does apply to subpoena duces tecum.

We know of no case and petitioner has cited no case, indicating to certainly holding if the Fourth Amendment applied the subpoenas to testify.

The Barenblatt, the Wilkinson and Braden cases, do mention probable cause, but read in context, it is perfectly clear that they mentioned probable cause as part of their discussion of the First Amendment and whether the Committee has a val -- has a valid legislative purpose.And -- and though petitioner cites numerous American and English cases, and the long history of arrest, searches and seizures, we think that they show merely as we of course agree that the Fourth Amendment applies to arrest and searches.

We think there's a marked difference between arrests and searches and testifying before a congressional committee.

And our second contention is that even if the Fourth Amendment did apply the subpoenas to testify, that it was not violated in this case.

It seems clear that if the Fourth Amendment applies at all, it requires the congressional committee to have considerably less information in order to subpoena a witness to -- either to testify or to produce documents than as required for officers to make an arrest or search.

For if the results that a search or arrest is without basis, personal rights are very substantially injured.

On the other hand, if a congressional committee subpoenas a person who turns out to have no information on the subject which is under inquiry, the witness presumably will simply answer that he has no information.

We do not to -- any vitally important interest is thereby violated.

This distinction between the standard of probable cause to be applied under the First Amendment, the subpoenas has a contrast to that applied to arrest and searches, has been recognized by this Court in at least two cases.

In the Oklahoma Press Publishing Company case versus Walling, which is in 327 United States, this Court held that the Fourth Amendment does apply to subpoena duces tecum issued by executive agencies.

But the Court held that probable cause is satisfied in that circumstance if “The investigation is authorized by Congress, is for a purpose Congress can order and the documents sought are relevant to the inquiry.”

And a similar standard was applied to subpoena duces tecum -- to a subpoena duces tecum to appear before a grand jury in Hale v. Hankel.

We think that there is no possible reason to apply a stricter standard to subpoenas to testify than to subpoenas duces tecum even if the Fourth Amendment applies to subpoenas to testify at all.

And if anything, the standards should be less strict as to subpoenas issued by a congressional committee than by an executive agency.

Now tying the standards which were laid down by this Court under the Fourth Amendment in the Oklahoma Press case to the situation here, the Barenblatt case establishes that Congress has the power to investigate Communist activities.

As we will show in the Liveright case, this investigation was within the authority conferred on the Internal Security Subcommittee by the Congress.

And as I hope to show later, the questions which petitioner refused to answer were relevant, that is, they were pertinent to the investigation of Communist activities.

And for these reasons we think that if the Fourth Amendment applies at all, that it was satisfied in this case.

Chief Justice Earl Warren: Mr. Terris, I understood you to say a moment ago that when a witness was asked these questions, all he had to -- had to do was to answer them and there'd be no harm done.

Do you think that in this day and age when -- when we're so possessed -- so possessed of fear and dislike of the -- of the Communist Party and its activities that if the -- if a Committee was to just pull a man off of the street and say, “Are you a Communist?”

And he says, “No.”

Do you think that would not -- that in itself would not be any great injury to him?

Mr. Bruce J. Terris: Well, Your Honor, I -- I think the injury certainly would not be nearly as grave as when a person is illegally arrested, his home is illegally searched.

Congress for example could -- has --

Chief Justice Earl Warren: Sometimes, they illegally search a man's place and they don't get anything.

And sometimes you'd find the same situation here with witnesses.

They'd asked him questions that wouldn't -- that wouldn't harm anybody, but if they just took a man off the street as you contend to have the right to do and without any knowledge or information concerning him without any showing of any kind, they just bring him in before -- before a Committee and the American public and say, “Are you a Communist?”

Would he answer -- would his answer “no” save him from public harm?

Mr. Bruce J. Terris: Well, Your Honor, I -- I assume by your question to what did -- that you think the implication, the possible implication that the public would read -- would get from that kind of a question even though it was answered by -- by “no” is that this man was a Communist.

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: Well, without even calling him, the congressional committee could put out a report that said he was a Communist and presumably, he would have no legal recourse.

Chief Justice Earl Warren: That's true.

And they could commit -- they can commit all kinds of libel that they want on the floor of the -- floor of the Congress, but does it mean that because they can do that, they can -- they can otherwise discredit and downgrade people in any other way that they want?

Does it follow?

Mr. Bruce J. Terris: I don't think that -- I don't think that the theory in this kind of situation -- they asked him a question --

Chief Justice Earl Warren: I wasn't talking about (Voice Overlap) exactly what this was -- I was trying to just probe a little of your statement that they could ask him any question they wanted and all he had to do was answer.

And if his answer was negative, why he wasn't harmed?

I ask you within this -- the setting of these hearings.

If -- if a man's answer is, “No, I'm not a Communist.”

Would leave him uninjured be -- before the American -- before the American public -- publicized --

Mr. Bruce J. Terris: I think --

Chief Justice Earl Warren: -- as these things are.

Mr. Bruce J. Terris: I think, maybe one of the problems we're having is that we do -- we do not make the contention that a person can be asked a question, “Are you a Communist?”

with absolutely no basis.

We think the Court has suggested it.

It is not held but it is suggested in the Barenblatt and the Wilkinson and Braden cases, that there has to be some basis for asking that kind of a question.

Chief Justice Earl Warren: ( Voice Overlap)

Mr. Bruce J. Terris: Our contention is the Fourth Amendment doesn't apply.

Chief Justice Earl Warren: As applied to him, as applied to this witness, or as applied to their general power to investigate Communism which --

Mr. Bruce J. Terris: You mean was it was a'pplied to petitioner?

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: Just any idea of some -- we say that this Court has suggested, it is not held but it's suggested there has to be some basis to ask any witness including Mr. Shelton.

Chief Justice Earl Warren: Well, you accept that then that they must have some -- have to make some showing in order to -- in order to ask a question of a witness such as we have under review here.

Mr. Bruce J. Terris: We think that that's what this Court has suggested.

We have not argued --

Chief Justice Earl Warren: Well --

Mr. Bruce J. Terris: -- the contrary.

Chief Justice Earl Warren: Well not --

Mr. Bruce J. Terris: It does not held --

Chief Justice Earl Warren: You're here arguing a certain position and you arrive at certain conclusions.

Can't we test them?

How far you want -- how far you want to go

Mr. Bruce J. Terris: (Voice Overlap) --

Chief Justice Earl Warren: -- and I merely ask you if you'd go that far?If you don't, I want to ask you another question.

If you say you do, I think I'm, too.

Mr. Bruce J. Terris: The contention which we are making here is that we have satisfied, that the -- that the Committee satisfied the standards which this Court suggested in the Barenblatt, Wilkinson and Braden cases.

Chief Justice Earl Warren: And you won't --

Mr. Bruce J. Terris: That is our contention.

Chief Justice Earl Warren: -- you won't answer my question as to -- as to whether the Committee can -- can pull a man off of the street and without any showing to the witness, say to him, "Are you a Communist?"

Mr. Bruce J. Terris: Well I -- I think this Court's holdings on the three cases I've mentioned do indicate that since you are balancing various factors in weighing the public and private interests involved that it is relevant.

What kind of a -- of a public interest, the Governmental interest is -- is involved?

Chief Justice Earl Warren: Alright, now you accept that --

Mr. Bruce J. Terris: And for that reason cause -- and for that reason cause does have -- certainly it's irrelevant.

Chief Justice Earl Warren: Do you accept that that is your responsibility then in this and every other case of -- of -- of this kind.

Mr. Bruce J. Terris: That's correct Your Honor (Voice Overlap) --

Mr. Bruce J. Terris: Alright now -- now what kind of a showing do you think must be made to justify it?

Mr. Bruce J. Terris: Well, one of the difficulties we have with Mr. Rauh's that I think in verbal form, it doesn't appear that there's much difference between our two standards.

We think that there has to be a reasonable basis but a basis that a reasonable man could form a judgment on.

A reasonable basis for believing that the witness has information which is a value to the Committee, that is, whatever it is investigating of a particular time.

Now, Mr. Rauh seems to have phrased in terms of probable cause to believe that the witness has information.

In Braden case, this Court held the probable cause and reasonable ground mean the same thing, so I -- I think probably the -- certainly in verbal terms, we're very close to being in agreement.

He's also said that our argument is that there has to be a likelihood.

I'm not quite sure even how -- what's the difference of this between a likelihood and a reasonable basis.

I --

Justice William J. Brennan: Mr. Terris, could you tell me how much of a disclosure to the witness of these cases that's been made.

Mr. Bruce J. Terris: Well, I think that is the -- that is really the main disagreement that we have with the petitioner, not -- not so much -- what the -- how much information, but whether the -- whether the courts are supposed to have a full review of the information which is presented.

Justice Felix Frankfurter: Mr. Terris, I find it difficult to understand why you don't say that it is within the constitutional power of Congress to conduct investigation which results in damage to perfectly innocent citizens.

But which there is no judicial power release, why don't you say that?

Mr. Bruce J. Terris: We --

Justice Felix Frankfurter: Isn't that a fact?

Mr. Bruce J. Terris: Let -- let me -- let me -- let me talk --

Justice Felix Frankfurter: Isn't that a fact that comes, that people may draw inferences from questions that of the court which are within the constitutional power of Congress to put and for which there is no judicial (Inaudible).

Mr. Bruce J. Terris: Certainly, Your Honor.

Justice Felix Frankfurter: Why don't you say that plainly?

Mr. Bruce J. Terris: Because that -- that's --

Justice Felix Frankfurter: It is correcting all the abusive which Congress may exercise in its constitutional authority.

Mr. Bruce J. Terris: Yes -- why I do -- that of course is phrased much better than I would have.

Justice Felix Frankfurter: But that's the question of phrasing it's the question of conduct.

Mr. Bruce J. Terris: The Barenblatt case results are ultimately in that -- in that kind of thing, the witness can be asked questions and whether --

Justice Felix Frankfurter: That's one of the prices that citizens pay in courts before committees and they've always paid them.

And the question is what other limits to a judicial relief.

Mr. Bruce J. Terris: My difficulty Your Honor is -- is whether -- that -- that statement can mean any type of harm.

I think that's what the --

Justice Felix Frankfurter: Well --

Mr. Bruce J. Terris: -- Chief Justice was -- was directing himself to and we -- and the -- in Barenblatt and then again in Wilkinson and Braden, the Court --

Justice Felix Frankfurter: Of course, this Court has judicial review of the procedure of Congress.

There are limits to what -- to the power of that Congress.

This Court had said it has power and it has limitations upon its power.

But is there any doubt that innocent people have involved before committees of Congress from the beginning of time and asked questions which may do them harm in their -- in their community or among their friends or among the ignorance or among the life for which there is no judicial relief.

Mr. Bruce J. Terris: No, there is no --

Justice Felix Frankfurter: Alright.

Mr. Bruce J. Terris: I -- of course I do not (Voice Overlap) --

Justice Felix Frankfurter: Perhaps that's a simple answer.

Of the limit of something else again.

Justice William J. Brennan: Now to get back in answer to my question.

My question was how much of the disclosure has to be made?

I don't need to ask which you told me you and Mr. Rauh disagreed --

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: -- with that.

But how much in disclosure do you think that's to be made?

Mr. Bruce J. Terris: We think that the -- that the Committee at the trial for contempt, has to present the basis on which it -- it exercise its judgment to subpoena the witness.

Justice William J. Brennan: At the trial for contempt.

Mr. Bruce J. Terris: That's right.

And that --

Justice William J. Brennan: That suggest that they have no -- the Committee has no responsibility (Inaudible) disclosure to the witness at the appearance before the committee on the basis --

Mr. Bruce J. Terris: That's right Your -- and Mr. Rauh has never argued that they were required at that point to present their evidence.

Justice William J. Brennan: Well, I thought -- I thought he argued very forcefully yesterday.

Mr. Bruce J. Terris: Well he -- I -- I think --

Justice William J. Brennan: Exactly the (Voice Overlap) --

Mr. Bruce J. Terris: I think there may be a new (Voice Overlap) --

Justice William J. Brennan: I want to get your position clear.

Your position is that they must have a basis before they can ask a question, a reasonable basis I think you said but that this disclosure of what that basis is, does not have to made to the hearing before the committee but it is only part of the Government's burden in an ultimate prosecutions for attempt, is that it?

Mr. Bruce J. Terris: Well I wouldn't quite phrase it that way.

Justice William J. Brennan: Alright, you can phrase it your way.

Mr. Bruce J. Terris: It is not -- we do not think that it is an element of the crime.

We think this Court has indicated in Barenblatt and then Wilkinson and Braden.

That it's one of the considerations to be weighed in considering the witness' First Amendment rights.

Justice William J. Brennan: What I am trying to get clear is where is it?

Mr. Bruce J. Terris: It's at the trial (Voice Overlap) --

Justice William J. Brennan: How do you say that the Government has an obligation at some point to make a disclosure of what the basis was, without -- at what point?

Mr. Bruce J. Terris: The trial.

Justice William J. Brennan: At the trial.

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: As a part of what?

Mr. Bruce J. Terris: But -- as part of proof that you -- in part -- it is part of considering --

Justice William J. Brennan: A proof of what element of the crime?

Mr. Bruce J. Terris: The Governmental interest under the First Amendment.

Justice Potter Stewart: Its part of the proof that this was not exposure for exposure sake?

Mr. Bruce J. Terris: I don't think that's would -- Mr. Rauh's contention is, because I think that if he --

Justice Potter Stewart: Well (Voice Overlap) we're talking about your contention --

Mr. Bruce J. Terris: Well, that's difficult if -- if I -- if I said that that was all that we have to overcome then presumably --

Justice Potter Stewart: You would not be -- fully answering Mr. Rauh, I see.

Mr. Bruce J. Terris: We wouldn't but -- but beyond that, I think we have a much simpler answer and that is that Watkins and Barenblatt hold that we cannot look into the motives of the members of congressional committees, that's the reason I do not want to answer it quite so simply --

Justice Potter Stewart: I see.

I see.

Justice John M. Harlan: Mr. Rauh very frankly stated yesterday.

I assume your argument is the same.

This probable cause argument was out of premise (Inaudible) within the compounds of this -- (Inaudible) pursuance of the legitimate congressional purpose.

Mr. Bruce J. Terris: That's right, You Honor.

Justice John M. Harlan: Yes.

Mr. Bruce J. Terris: He (Voice Overlap) he assumes that.

Justice John M. Harlan: That's the framework in which this whole probable cause issue is being -- well, we are not dealing with probable cause in terms of whether in some evidence, the Committee was (Inaudible) suppose your expedition.

We're dealing with what is recognized by your opponent as being a legitimate congressional concern.

Mr. Bruce J. Terris: I think that's --

Justice John M. Harlan: The subpoena issue, pursuance of a legitimate congressional concern.

Mr. Bruce J. Terris: I think that's -- that's right, Your Honor.

As I say, I think the --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Well --

Justice William J. Brennan: It seems to me that perhaps with your answer to Justice -- I don't want to beset you further than you are already beset.

Mr. Bruce J. Terris: That's quite alright, Your Honor.

Justice William J. Brennan: Your answer to Mr. Justice Frankfurter seemed to suggest that the problem was to what extent a court will interfere with congressional committees.

I didn't think that was in the -- these case or -- any of the cases at all, because simply --

Mr. Bruce J. Terris: No we --

Justice William J. Brennan: -- no court -- as I see it with issue of an injunction that say, “You shall not do this”.

Isn't our problem that the extent of which the Federal Courts will allow themselves to become implicated in unfair proceedings before congressional committees and send people to jail who -- that the Committee wants us to put in jail or wants the District Courts with juries to put in jail.

Justice Felix Frankfurter: May I --

Justice William J. Brennan: Isn't it -- isn't the question of the extent of which the Federal Judiciary should become implicated in -- in these congressional investigations, it seemed -- assuming arguendo that that stepped over the bounds of fairness.

It was -- it was the idea of Mr. Justice Frankfurter, I think expressed in his separate opinion in the Wilkinson case or some case.

I forgot the precise name of it.

It's been running up a common thread throughout a lot of our opinions.

And while we haven't squarely faced up to it, maybe this is the case that will cause us to face up to it.

Justice Felix Frankfurter: Before -- may I ask a couple question with that so you can answer the fact, I'd like to know whether you think, this case has nothing to do with the scope, the right, the demand upon congressional procedures so that defiance of congressional request to answer may not be enforced to the criminal law.

Justice William J. Brennan: Yes, there maybe two levels.

One is where the -- the congressional inquiries beyond the scope of the Committee's authority.

And I'm assuming that it is within the scope that Justice Harlan does that -- that it is relevant.

The extent of which -- nevertheless courts should go or the -- should not go in lending their prestige, their imprimatur, their help to putting people in -- in prison backing up what maybe we assume arguendo is grossly unfair congressional procedures.

Mr. Bruce J. Terris: Your Honors, in -- in our view, the precise question is how far the courts are going -- going to interfere if you will restrict congressional inquiries.

Justice William J. Brennan: No.

But that -- but that's not the question could we -- no court is interfering.

Congress has its own method of holding people in contempt.

Mr. Bruce J. Terris: But is a -- that --

Justice William J. Brennan: Congress can put -- could put this man in prison for -- for failing to answer.

We're not concerned with that.

We're concerned with the issue (Voice Overlap) --

Mr. Bruce J. Terris: Of course there's judicial review of that too.

Presumably this -- presumably, Congress couldn't put somebody in jail itself if it had no probable cause.

If it could not put them in jail through the use of the court (Voice Overlap) --

Justice Felix Frankfurter: That's on the Kilbourn case.

Mr. Bruce J. Terris: I assume there is no essential difference between which method.

Justice William J. Brennan: Well, there is an essential difference because the power of Congress to -- to hold for contempt expires at the end of the -- of the Congress.

Mr. Bruce J. Terris: But the power of the Court's that we --

Justice William J. Brennan: And here is -- this one is for 10 years.

Mr. Bruce J. Terris: But the -- the power of this Court to review the contempt proceedings in the -- in the Congress --

Justice William J. Brennan: Well that's -- that's something that's never been adjudicated.

Mr. Bruce J. Terris: It has been adjudicated --

Justice William J. Brennan: By a man who is committed by the -- by the senate --

Mr. Bruce J. Terris: Yes, in Kilbourn and Thompson.

Justice William J. Brennan: Yes, but I mean I'm not sure that you could say that's an adjudication.

Mr. Bruce J. Terris: Well it -- it isn't adjudication that there is --

Justice William J. Brennan: There maybe some justiciable question, yes.

Mr. Bruce J. Terris: That's right.

They can go to court.

Justice William J. Brennan: Yes.

Mr. Bruce J. Terris: That Congress that time was (Voice Overlap) power.

Justice William J. Brennan: It's one thing for Congress to hold the man for the -- that Congress for failing to answer.

Another thing, the courts to say off you go to prison for 10 years.

Mr. Bruce J. Terris: We are -- I have to come back to -- in our view although the power to the -- to the individual maybe greater since he will be -- he could conceivably confined.

I think it's for five years Your Honor, but could be confined for a longer period than the -- than the Senator or the House could confine that still the -- if this Court lays down a rule of probable cause under the Fourth Amendment as Mr. Rauh contends, it would be a serious limitation on the power of Congress.

We think this is the -- is the essential question in this case, just to what extent --

Justice William O. Douglas: It would be a -- it would be a serious limitation on the powers of prosecutors to get indictments for offenses of this kind.

Mr. Bruce J. Terris: Your Honor, if -- if the Congress cannot compel testimony, if it cannot compel testimony, obviously, it very seriously interferes with it -- with its power to investigate.

Justice Felix Frankfurter: Why don't you be concrete and say, if Shelton, instead of Congress referring this contempt in its view to the United States Attorney or the District Attorney and told the sheriff that the sergeant-at-arms could bring in before the court -- the bar of Congress and it impose exactly the same offenses and it put him in charge of the appropriate arresting officer of the district, you would then have done exactly what was done here, as what it's done in Kilbourn against Thompson to sue out a habeas corpus because of the illegal commitment by the Congress, by the Senate when it exceeded its constitutional power to do what it claimed to be beyond its constitutional power.

Mr. Bruce J. Terris: But the proce --

Justice Felix Frankfurter: -- exactly the same question with the (Voice Overlap) --

Mr. Bruce J. Terris: -- procedural requirements of the Bill of Rights as they apply to Courts are, at least do not in terms apply to Congress in -- in the full panoply of them.

Justice Felix Frankfurter: Killbourn was let out, Mr. Terris?

Mr. Bruce J. Terris: That's precisely my view, the holding of Kilbourn and Thompson -- Thompson that there is this kind of judicial review.

I would be very surprised if the probable cause applies here in a different fashion, I think the issue would be the same if the procedure was as Mr. Justice Frankfurter has suggested.

And we were --

Chief Justice Earl Warren: Mr. Terris, I'm wondering if there isn't another distinction between these two kinds of procedure if in a case of this kind on trial when he goes on trial.

If these things are not open to him, he has no way of -- of ever raise -- raising him unless he -- unless he raises it at the instant that he's called as a witness and asked the question.

Now, I'm -- I'm not -- I'm not familiar with the procedure or in the Congress, but if they took him before the -- the bar of the House of Representatives for failing to answer these questions, he'd be entitled to -- to a hearing there, would he not?

He could put up a defense, could he not, before the -- before the Congress and -- and trash these things out and -- and we'd have a -- we'd have a record on it before it ever -- before he was ever sentenced but here --

Mr. Bruce J. Terris: That's what we have here, we're into trial.

Chief Justice Earl Warren: No, no your -- your contention that -- that the Cong -- that the Committee is not required to show any reasonable grounds for -- for insisting upon this evidence is conclusive and that when it comes to the -- these -- when it comes to the Court and there's an effort to put him in jail, he has no -- he has no defense to it at all nor did he have before the Committee unless when the -- when he came then was confronted by the question.

He was prepared with a lawyer and to -- to represent him and advise him of his rights.

Mr. Bruce J. Terris: We think the rule would be the same though if he'd been tried by the Senate.

We think that he would have been required -- the Senate would not have to have listened to any Fourth Amendment contention if he had not made it at the time he refused to answer before the Committee.

Chief Justice Earl Warren: I say I'm not --

Mr. Bruce J. Terris: I think --

Chief Justice Earl Warren: Im not --

Mr. Bruce J. Terris: -- we think (Voice Overlap) --

Chief Justice Earl Warren: I'm not -- I'm not familiar with -- with -- with that procedure over there but I was wondering.

Justice Hugo L. Black: Are you sure that you could carry that -- what you seem to make its logical extent.

Supposed gotten him in there and took him with force threats to his personal safety, to make a statement and that he's been indicted for that.

Would you say that it makes no difference that -- that -- that he couldn't save himself from such a prosecution --

Mr. Bruce J. Terris: You mean --

Justice Hugo L. Black: -- because he had not objected to it on the ground it was illegal?

Mr. Bruce J. Terris: You mean there was a -- I'm not quite sure on the -- on the facts.

You mean like he -- I'm just -- he was interrogated the way, maybe police officers might do under -- for long periods of time.

Justice Hugo L. Black: Well, interrogated -- I don't know -- with threats that he would receive bodily injury if he didn't testify, would you say that he was indicted for refusing to testify there that he couldn't raise that question because --

Mr. Bruce J. Terris: Well, in that kind --

Justice Hugo L. Black: -- he hadn't raised it before the Committee?

Mr. Bruce J. Terris: -- in that kind of a situation, one very well might say that if he -- he's been coerced that he -- he's also being coerced into not making his objections, I mean here -- he's quite free to make his --

Justice Hugo L. Black: Well that --

Mr. Bruce J. Terris: -- objections.

Justice Hugo L. Black: -- you could get it routed by that legal maneuver but --

Mr. Bruce J. Terris: Well --

Justice Hugo L. Black: -- the whole figure that you just wouldn't you say that you -- your argument doesn't go that far, does it?

Mr. Bruce J. Terris: If a man is under coercion, I don't think he -- he can be compelled to raise all kinds of legal objections on -- during this coercion.

Justice Hugo L. Black: Is that so?

I thought you'd go a little further than you --

Mr. Bruce J. Terris: Well --

Justice Hugo L. Black: -- could logically explain or could logically determine.

Mr. Bruce J. Terris: Turning -- turning -- Mr. Justice Douglas, I wanted to correct one misstatement I have made.

The statute says he can be punished for -- for one year so that the -- the actual amount of punishment is not too much greater than what Congress could also impose, of course, there might be consecutive --

Chief Justice Earl Warren: But --

Mr. Bruce J. Terris: -- sentences --

Chief Justice Earl Warren: But they have a dozen questions as 10 times due.

Mr. Bruce J. Terris: That is conceivable, Your Honor.

Chief Justice Earl Warren: Well, conceivable, it's been done hasn't it?Only the -- only the judges haven't given them consecutive sentences here.

What they've been convicted on a -- on a great number of counts depending upon the number of questions they refuse to answer.

And under the law -- under the law -- they can be given consecutive sentences but did not.

Mr. Bruce J. Terris: That's correct sir.

With only one limitation of course, the Yates case says that if they lay out a whole area in which they will not answer, they can only be convicted for one contempt but the -- but that's quite true.

If they only refuse to answer a series of questions without any area being laid out, they can be -- receive consecutive sentences.

Chief Justice Earl Warren: As I recall it, we have the (Voice Overlap) --

Mr. Bruce J. Terris: I think Mr. Shelton did it.

Chief Justice Earl Warren: -- on one case here where -- where one of these cases of this kind wasn't -- it was in this area and not exactly like this the judge asked 11 separate questions and gave him 11 consecutive -- a woman, 11 consecutive sentences of one year.

Mr. Bruce J. Terris: That's the Yates case, Your Honor.

Chief Justice Earl Warren: For 11 years and we didn't set it aside either.

Mr. Bruce J. Terris: No, Your Honor, you did.

I -- I think we're talking about the same case.

It's the Yates case and -- and you said there can only be one --

Chief Justice Earl Warren: Well, the first time -- the first time it was here, we did not it set it aside because of that.

At the end, didn't we -- didn't we -- we merely -- the Court merely limited the punishment to the amount of time served --

Mr. Bruce J. Terris: (Voice Overlap)

Chief Justice Earl Warren: -- the first time around.

That was --

Mr. Bruce J. Terris: The first time that it was here, you threw out 11 out of the 12 specifications of contempt for this very reason that she had laid out an area which you would refuse to answer.

And that therefore her separate refusals were not contempt.

I'd like to turn to the -- what is the precise issue in this case and with which Mr. Rauh emphasizes so strongly and that is whether he is entitled to the letter which is the basis on which the Subcommittee questioned Mr. Shelton.

In our view, he is not entitled to the letter because he -- because he is not entitled to plenary judicial review of the basis on which the Committee subpoenaed him.

We think that there is -- that this Court did not hold in the Wilkinson case, Braden or Barenblatt that this was to be an element of the offense.

It was to be tried just like any other element of offense.

We think that -- that all the Court suggested there and that's all it was, is a suggestion, is that the Committee had to show that they had some basis, a reasonable basis in order -- in order to subpoena him.

He do not think that this means that the witness has -- can put the Committee to the choice that is of either not forcing him to testify or of producing confidential information and although Mr. Rauh seems to think that this is not confidential information, the record is perfectly clear that that -- that that is exactly what it is.

Was signed by a pseudonym, it had -- it -- it apparently had considerable other information on other persons that leaves information about Communist Party activities.

And it was precisely the kind of confidential information which -- which the Congress would of course not be very willing to give up so if -- if Mr. Rauh is correct, he -- he is putting the Committee in the -- in a precise situation of either not being able to compel and to testify or giving up important confidential information.

Now, in the other cases, two of the other cases which are being argued in these series, similar contentions are made and they're the -- and they're the petitioners that were argued, but they're entitled to all materials in the files of the Committee.

Justice Potter Stewart: May I ask you Mr. Terris, you've already told us that this is part of the Government's plea to be filed.

May I ask first before I ask the question I was just about to ask, suppose that the -- before the hearing that the witness you say did not, but supposed he had and, well, what is the basis upon which you're asking this question?

Mr. Bruce J. Terris: Well, he did say that, we think in regard to the First Amendment, yes sir.

Well I think -- I mean this is a bunch of -- I was called here by accident --

Justice Potter Stewart: Well, what I'm --

Mr. Bruce J. Terris: -- it makes essentially --

Justice Potter Stewart: -- well, what I'm trying to get at is there is no responsibility even if directly asked upon the Committee to tell them what the basis is upon which they're asking the question, "Are you a Communist?"

Mr. Bruce J. Terris: Well, we don't -- we don't think there is, Your Honor.

Justice Potter Stewart: None at all, I see.

So if -- if he had asked a question directly in just those words, the Committee would have had no obligation to answer them but he would nevertheless have had to answer.

Mr. Bruce J. Terris: Well, he -- he could refuse to answer of course and if -- and if this Court held that his First Amendment rights were violated because the Committee had no basis for questioning him then he would -- then --

Justice Potter Stewart: Well I --

Mr. Bruce J. Terris: -- of course --

Justice Potter Stewart: -- accept --

Mr. Bruce J. Terris: -- he couldn't be convicted.

Justice Potter Stewart: Yes, but you don't test that if I understand you on your view, by anything that happens at the hearing.

Mr. Bruce J. Terris: That's right.

Justice Potter Stewart: It has to be tested only by what happened at that trial.

Mr. Bruce J. Terris: That's right, Your Honor.

Justice Potter Stewart: Yes.

Mr. Bruce J. Terris: In --

Justice Potter Stewart: Well I -- I understand.

Now, may I get to the second question, I think you've made that very clear.

Mr. Bruce J. Terris: I thought I might be able to make my answer a little -- a little stronger.

In Watkins and Barenblatt, the Court held that you had to apprise the witness of the subject under inquiry in the pertinency of the questions.

But that is required by the statute, the statute says that -- that you have -- that the question has to be pertinent.

And this Court held that the only way a witness could figure out for himself whether -- whether he -- he was in violation of the statute, was that -- that they tell him what the subject was and the pertinency of the question.

Now before -- now, we think that the probable cause or reasonable grounds or however you wanted to phrase it but that consideration, it's just one of the considerations which are involved in the First Amendment contentions.

Now, would the Committee have to say -- go through the kind of discussion which this Court made in the Barenblatt case about the great national interest in -- in protecting the -- against subversion that -- that they had a valid legislative purpose.

It's another one of the considerations under the First Amendment in Barenblatt.

If -- if the witnesses entitled to this kind of an explanation when he objects on the grounds of the First Amendment that the Committee goes through the whole First Amendment contention.

Obviously, the -- there's going to be -- it's going to be quite -- quite a procedure before the Committee, it's not quite the same thing when you ask, "What's the subject?"

and they say, “The subject is communist activities in news media."

Justice Potter Stewart: And now -- now let's get then to the trial where you do say that the Government include -- must include something which indicates that they had a reasonable basis.

Now, what is that is that just at some member of the Committee or counsels, the problems to the trial and says, "We had a basis period." Is that enough?

Mr. Bruce J. Terris: Probably not, Your Honor.

We -- that isn't this case.

Justice Potter Stewart: Well, I know.

Well, I'm trying to find out how (Voice Overlap) --

Mr. Bruce J. Terris: No, we put -- we -- we think it has to make a description of some of the -- of the materials.

What that his -- if he's a member of the Communist Party, he attended communist meetings of some kind of a description with all of that kind.

Justice Potter Stewart: What form would it take?

The Committee witness takes the stand and said well in our files, we have information that this witness attended meetings and such and such and such and such.

Well, we have information as they said here, a letter signed and a pseudonym in which his name is included among another -- a lot of other names.

Well how far may the defense go to test that?

Mr. Bruce J. Terris: Your Honor we -- we think that, that kind of evidence is sufficient in itself.

Now they can ask questions as they did here."

How long ago since you've seen the letter?

Do you remember precisely what it -- what it says here?"

They can ask that kind of question.

We think that they cannot go into the files of the Committee either by a subpoena or by cross-examination.

Justice Potter Stewart: In other words if -- if the witness takes (Inaudible) that there was a letter, the defense is foreclosed in trying to prove that there wasn't any letter.

And the only way they could prove it, namely by showing the files don't contain.

Mr. Bruce J. Terris: We think that's true Your Honor.

Now, I would like to rely in part on the Barenblatt case.

There, the Court -- there the Court said, "In -- in discussing this issue, the one sentence which is on probable cause nor the petitioner's appearance, as a witness, follow from indiscriminate dragging of procedures, lacking improbable cause for belief that he possessed information which might be helpful to the Subcommittee."

And then it dropped a Footnote to support this -- this statement.

And the Footnote says, see page 124 and note 24.

Now on page 124, all that is there is the -- is the Courts answer to the petitioner's contention that the questions weren't relevant.

The Court says the questions were relevant.

We think the questions are relevant here.

And then at note 24 -- note 24 contains a statement by the chairman that the evidence or information contained in the files of this Committee, some of them in the nature of evidence shows clearly that the witness has information about Communist activities in the United States of America, particularly while he attended the University of Michigan.

So, that's what the Court relied on in Barenblatt for showing whatever cause must be shown.

Now, that -- that statement is considerably less detailed than the statement that we have here.

At least this identifies the source in general terms of the information.

It doesn't identify the particular person or it doesn't show the letter but it -- more than saying we have something in our files.

So we -- so we think we've gone beyond what the Court has already suggested in Barenblatt.

Justice John M. Harlan: Is there a contention being made by your adversary that (Inaudible) that they don't rely on the Jenks case, do they?

Mr. Bruce J. Terris: No they do not.

And of -- and of course we would -- we would say that it's not a point because this isn't an element of defense, I mean we --

Justice William J. Brennan: Well, this is not a Jenks problem anyway, was it?

Mr. Bruce J. Terris: No -- no it would not --

Justice William J. Brennan: Not that it requires statement to this witness.

Mr. Bruce J. Terris: No, that's -- that's correct.

Justice William J. Brennan: The letter which he says that comply as the reasonable basis.

Mr. Bruce J. Terris: That's quite -- quite correct, Your Honor.

Now, petitioner seems to think that there's either an -- an all or nothing proposition.

Either he's entitled to completely view just as if he would be entitled to review of any other -- of any element of the crime, whether he answered the questions, whether the questions were pertinent or -- or he says, "Then there's no review at all."

And therefore, the Committee can cuff him off the street.

Our contention falls in the middle.

We do not say that they can call anybody off the street.

That is not our contention.

When we're put in the area of First Amendment rights, I -- I want to limit that very clearly to that because that's what the area that this Court has considered the question in.

And we say, what the Committee must do is it must come forward either with sworn testimony and this was sworn testimony by an official of the Committee or by documentary evidence to show what basis they have for questioning the witness.

Chief Justice Earl Warren: Well it cannot be tested that -- the evidence cannot be tested in the usual way.

Mr. Bruce J. Terris: That's quite correct, Your Honor.

Not in the -- not the full kind of review that would be required for an element of the offense.

Now, this is -- for example --

Chief Justice Earl Warren: Not full -- not for a review, but it cannot be tested according to the ordinary rules of evidence.

Mr. Bruce J. Terris: That's quite correct Your Honor.

Chief Justice Earl Warren: In other words -- in other words if the man makes a statement and sticks to it, that -- that makes your case even though -- even though --

Mr. Bruce J. Terris: Well, of course the judge (Voice Overlap) doesn't have to believe it.

Chief Justice Earl Warren: Even though there are -- even though there are things in existence that could well be shown that -- that will not be shown.

Mr. Bruce J. Terris: That there's -- that's -- we -- we rely on the -- on the strong presumption which this Court recognized in Barenblatt that Congress is -- is pursuing a valid purpose.

Now, there the question was a valid legislative purpose.

This Court made quite clear, it seems to me that they would not look into the files of the Committee to see whether there wasn't a resolution which said, "We don't want this man to testify because we think he has information, we just want him to testify, because we want him to be fired from his job."

Now there may well be that kind of a resolution in the files of a -- of a Committee.

This Court said it wouldn't look into that, it wouldn't -- it would start with the presumption, the very strong presumption that there was a valid legislative purpose but that wasn't a consideration of a constitutional issue, too.

Justice Potter Stewart: May I get back to this momentarily?

I gather what you're telling is, if it's in the First Amendment area, they can't call a man off the street unless they have a reasonable basis for asking the question which trespass if you please in the First Amendment, is that right?

Mr. Bruce J. Terris: Well I -- I wouldn't quite (Voice Overlap) --

Justice Potter Stewart: You take whatever (Voice Overlap) --

Mr. Bruce J. Terris: I think --

Justice Potter Stewart: Anyway, is that -- get in to the First Amendment, yet when they get him there, they can say to him, "Are you a communist?"

they don't have to tell them because they have a reasonable basis for asking it though, only if before the Committee.

Mr. Bruce J. Terris: They do not have to apprise and that's right.

Mr. Rauh has never made the contention that they do.

He's never made the con -- the contention that they --

Justice Potter Stewart: Well, I thought maybe he had but (Voice Overlap) --

Mr. Bruce J. Terris: If he -- well he -- I think yesterday, he did suggest for the first time that possibly, that they had to do it -- they had to tell him at that time but I -- when I say never, certainly not up to this Court and I think not in any document he's filed.

Justice Potter Stewart: Oh I -- I gather the -- the Committee -- the Congress has to vote before these matters are submitted for contempt prosecutions, does it not?

Mr. Bruce J. Terris: Yes.

Justice Potter Stewart: So that -- in the situation you put, a Cong -- a Committee might have no reasonable basis yet call him in and ask him, "Are you a communist?"

with whatever consequences that might have and then not pressed for a prosecution or you choose a thing that might happen.

Mr. Bruce J. Terris: Well, Your -- Your Honor they could -- they could do that even if there -- if there was a requirement that they have to apprise him.

They could say --

Justice Potter Stewart: Well, what I'm -- what I'm getting at if that's what occurred then they'll never be disclosed if they did have some reasonable basis in believing that he was before they ask him questions, is that right?

Mr. Bruce J. Terris: Well that -- that's true but it would also be true if a rule were laid down that they had to tell him the basis and they refused to tell him the basis.

It had still the -- the -- excuse me -- that's the end of my argument.

Justice Felix Frankfurter: Mr. Terris, we talked -- we discussed these things in the abstract about calling in a man off the street, suppose as I see thus move it, there'll be a congressional investigation regarding the complaint of the reserve officer to observe the man and suppose a member of the Committee of Congress sees a man with reserve uniform (Inaudible) but suppose he's identified as a reserve, the man is a reserve (Inaudible) and he detain this man until a subpoena could be issued for him, but you need -- that's a man off the street, you could put him and ask him about (Voice Overlap) --

Mr. Bruce J. Terris: Of course we make the very sharp distinction between the Fourth and First Amendment and since we do --

Justice Felix Frankfurter: I don't care about or Fourth or Fifth or any (Voice Overlap) --

Mr. Bruce J. Terris: We say yes.

Justice Felix Frankfurter: I'm just asking you --

Mr. Bruce J. Terris: He could call him off the street.

Justice Felix Frankfurter: -- whether the Congress doesn't say he's going to bring you in under the Fourth and not under the Fifth, under the First but not under the Sixth.That is the way Congress operates and never did operate.

Mr. Bruce J. Terris: We think that they could bring him --

Justice Felix Frankfurter: Could they bring him into this (Voice Overlap) --

Mr. Bruce J. Terris: Yes, yes.

Justice Felix Frankfurter: -- because (Voice Overlap) --

Mr. Bruce J. Terris: Yes.

Justice Felix Frankfurter: -- although he's from the street?

Mr. Bruce J. Terris: Yes.

Justice Felix Frankfurter: So you can discuss these things from (Inaudible) abstract without getting anywhere --

Mr. Bruce J. Terris: But the --

Justice Felix Frankfurter: Except where we start (Voice Overlap) --

Mr. Bruce J. Terris: I want to make it clear though that if they ask him, "Are you a communist?"

This Court has suggested that -- that that question may not be able to be asked unless they have some basis.

Justice Felix Frankfurter: Well --

Mr. Bruce J. Terris: Thank you, Your Honors.

Chief Justice Earl Warren: Mr. Rauh.

Argument of Joseph L. Rauh, Jr.

Mr. Joseph L. Rauh, Jr.: May it please the Court.

We submit on the brief the issue of the question under inquiry which we have fully briefed.

On the question of the indictment, it does not contain the question under inquiry that the grand jury was wrong and chosen.

We rely upon petitioner in the next case, it will be heard in one when we finish.

Now, coming to the problem of probable cause in this -- in this case, I know it's an academic question that the Court seems to very interested in is whether one has to raise probable cause before the Committee.

However, the question is not before this Court because we raised probable cause, I challenge anybody to find better words and I failed to see why I am involved in this hearing and to find better words and I am a victim of accident short of reciting the language of the Fourth Amendment which I do not think is called for by layman thing and so the question was raised.

Now the question that Mr. Justice Brennan asked, "Did we raise the problem and have we -- did I argue?"

that at the time he says, "I am a victim of accident."

Does the Committee have an obligation to respond, "You are not a victim of accident, we have a letter here that says it from a reliable informant," and we've argue this fully in Footnote 6 on page 13 of our reply brief.

Justice John M. Harlan: Where is your victim of accident stated?

Mr. Joseph L. Rauh, Jr.: On page 89 -- 87 -- 89 sir.

On the second -- the first sentence in the second full paragraph, "I am involved in these hearings as a victim of accident."

Now, therefore (Voice Overlap) --

Justice Felix Frankfurter: It reminds me that the victim of accident and to get the -- properly before a tribunal.

Mr. Joseph L. Rauh, Jr.: That's --

Justice Felix Frankfurter: Accident may propel relevant.

Mr. Joseph L. Rauh, Jr.: I'm only suggesting, Your Honor, that we raised the point.

We are not at this moment arguing the validity of the point.

I am suggesting we raised it.

That is the only point I have made so far.

Now, coming to what is based, we did raise it.

Now, whether we would have to, I agree with the questions that we wouldn't have had to, but the fact is we did so I don't quite see how it will serve my short remaining time to argue that we didn't have to when in fact --

Justice William J. Brennan: Well --

Mr. Joseph L. Rauh, Jr.: -- we did

Justice William J. Brennan: But as I understand Mr. Terris, even though you did.

At least if you're in the First Amendment area, you're not entitled he says to be told on the basis upon which the question was asked.

Mr. Joseph L. Rauh, Jr.: I see no more reason why I feel that it's the same as Watkins.

We're entitled to be told so we know whether we have to answer, and it is not true that this man had a closed mind in whether he'd answer these questions.

Right in the record, he told that I was permitted to tell the judge that if he were ever legally required to answer these questions, he would do so.

In other words, this is not a man who went in there with a blank mind that he would never consider answering the questions, this is a man as to whom he might very well know.

Justice William J. Brennan: Well, may I ask you directly Mr. Rauh.

Mr. Joseph L. Rauh, Jr.: Yes sir.

Justice William J. Brennan: Let's forget the Fourth Amendment argument and just take the First Amendment.

You say you raised it in the context to the First and that --

Mr. Joseph L. Rauh, Jr.: We raise it both ways, sir.

Justice William J. Brennan: Yes, well, (Inaudible).

Forget the Fourth for a minute.

You raised it from the context of the First and you are asked a question, "Are you a communist?"

without being told that they did have in the files something upon which they felt they had reasonable ground to ask that question.

Mr. Terris says, the Committee had no obligation whatever to tell you but they did have such a basis.

Now, how do you meet that argument?

Mr. Joseph L. Rauh, Jr.: I think that any facts that the Committee has would help a man resolve whether he has a right not to answer, should be provided for.

Justice Felix Frankfurter: Mr. Rauh, may I ask you this question.

Have I followed -- I followed his interest.

I do not vouch for it with an appreciation, but I followed with interest your argument and am I right in inferring that if the chairman of a committee had said to a witness and this witness' position, would he ask him, "Why am I here?"

If the chairman said, "I can assure you we have a very good reason for putting these questions to you, but there are also very good reasons but I'm not disclosing the reason."

That would still be subject to your condemnation.

Mr. Joseph L. Rauh, Jr.: Oh yes, Your Honor.

There are no facts in your statement.

Justice Felix Frankfurter: I just want to be sure I understood you.

Mr. Joseph L. Rauh, Jr.: Yes.

Now --

Justice William J. Brennan: There was that -- further, supposed he said had -- supposed the chairman had said, "Well we're going to ask you this because we have in our file a letter in which your name is included or summoned by the name of Shelton and to which assigned in the pseudonym of -- but we're not going to show you the letter, but that's the basis upon which -- it's that information upon which we based the question."

What can you say to that?

Mr. Joseph L. Rauh, Jr.: That might be enough, Your Honor.

I don't say that it is and I'm glad that question isn't here because he didn't say anything.

It might -- that would be a border line case, I would, if I had that case, I would be (Inaudible) but I recognized it's a different case than this.

Justice Felix Frankfurter: I don't seem -- I don't see why it isn't relevant because that's precisely what took place at the trial.

Mr. Joseph L. Rauh, Jr.: Well, I was just coming to the trial, if Your Honor please.

Now, so much for the hearing, we say victim of accident, I failed to see why I'm here, raises at least first, we think for forth, we think there should have been an answer.

Now, let's forget about it -- let's begin with the trial.

There's no question we raised First, Fourth and Fifth Amendment of the trial if they hadn't have a -- a reasonable ground for calling it.

Raised it -- it's -- it was the whole trial.

The re -- record is reached of this -- this point.

Now, the Government takes this position.

They say, they have admitted now that there has to be a reasonable basis for believing that the witness has information which it is -- which has a value to the Committee.

They've -- this is then to quote again from Mr. Terris, "That the witness -- that they have to present a basis for calling him at the trial."

Now they say they have a basis for calling him at the trial because the witness (Inaudible) comes in and says, "There is a letter."

We make a prima facie case that there is not a letter and you didn't hear one word out of Mr. Terris suggesting that the prima facie case we made that the wit -- that there is no letter, was in anyway -- that he had any rebuttal to the prima facie case I made yesterday that there was no letter that the witness contradict himself -- why Willard Shelton if there was the letter, why was he surprised, why did he say the witness --

Justice Potter Stewart: Well the witness never -- witness first testified that there was a letter.

He never actually withdrew that testimony.

Mr. Joseph L. Rauh, Jr.: No, sir.

But I'm saying that I made a pro -- on cross-examination a prima facie case that the witness was not telling the truth -- that's all I was adverting myself there.

Justice Potter Stewart: Well, wasn't that just a matter of credibility from trial?

Mr. Joseph L. Rauh, Jr.: Well, that's exactly the point Mr. Justice Stewart.

Justice Potter Stewart: Do you think you're entitled to --

Mr. Joseph L. Rauh, Jr.: That's exact -- you put your finger on what -- on the whole case here, the judge did not find that this letter existed.

In other words, and this is the whole case and it seems to me it -- it ends any suggestion that this Court could rely on the letter.

This Court cannot rely on a letter that the -- a judge refused to find existed.

That's why the judge found, you didn't need probable cause but if you did, you had it because he was a man of the times.

The judge refused to find this letter existed and it was -- that was the reason that the Court of Appeals found, that you could call anybody off the working press.

In other words --

Justice Potter Stewart: This was not a jury case wasn't it?

Mr. Joseph L. Rauh, Jr.: This is not a jury case.

The judge is the trier of the fact.

Now, and it so -- that there's no way the Government has conceded this case out the window when they say there has to be a showing, there is no letter on this record because the trial judge refused to find that there was a letter.

Now if I may address myself to Mr. Justice Whittaker's question sir from yesterday about the Draper case.

The Draper case was a case where a paid informant, narcotics informant -- you know it better than I do but I was really describing it to the other side of the Draper.

Unknown Speaker: This is from (Inaudible)

Mr. Joseph L. Rauh, Jr.: Well, let's take the Draper case which was the first when you imagine.

There was a paid informant, told a federal narcotics agent about a man and would -- it would've been probable cause if the informant had been there, but the agent got it hearsay from the informant.

They arrested the man in the quest -- the agent then died so the (Voice Overlap) -- no, the informant died.

So the agent testified probable cause and this Court allowed it.

The difference between this and the Draper case is that there, the hear -- it was admitted that the hearsay existed.

Here, we deny that the hearsay exists.

We deny that the letter exists.

In other words, our case would be like Draper if we have gotten the letter and then said this letter is not sufficient.

We're sa -- we're saying the letter doesn't exist.

There isn't any letter, there's no proof the judge -- district judge wouldn't find there was a letter.

The Government wouldn't produce it, so that in other words, in draper, the fact of that hearsay existed was not contested.

We are saying there is no evidence hearsay or otherwise.

So in our judgment, I didn't really give a -- adequate distinction of Draper yesterday but it seems to me that it's completely distinguishable on the ground that there, the hearsay obviously existed the testimony and here, we're saying there is no letter, the hearsay doesn't exist.

Now, if I may, I would also like if Justice Frankfurter would do me the -- a favor of looking at the record page 99 where yesterday, he referred to the fact at the bottom.

I think it is locked in the safe of the present Chief Counsel, Mr. Robert Morris and suggested that this raised a problem for the defense.

I would ask only that we go to the next question and the next answer Mr. Justice.

Isn't that in the files of the Internal Security Committee?

Answer, "I think it is in the archives of the Committee, it is in the possession of the Committee."

In other words, the Government is conceding there that they -- that that this is the witness (Inaudible) saying we have possession of it, but as he says on page 117 of the record (Voice Overlap) 117 when I asked for the production of the letter to the Court.

On page 18 -- 118 turning over, I asked the Court for it but Mr. Justice (Inaudible) saying "I am sorry Mr. --

Unknown Speaker: (Voice Overlap)

Mr. Joseph L. Rauh, Jr.: -- Rauh."

Well I used that advice of you sir.

“I am sorry Mr. Rauh I can't give you that letter."

It is confidential but then he doesn't tell us why and that -- but I kept on and in six places in the record, I would like to give you these citations if I may.

Six times in the record, I asked His Honor of the Court, to give us this document.

R99, 117, 169, 173, 181, 210 and only the Court could order it given to us because under the rules of the Senate, neither (Inaudible) or Morris nor anybody else could give it to us without an order of the Court.

Justice John M. Harlan: Could I -- could I ask you a question, is the doctrine that you're advocating here is something that's peculiar to the congressional committees or would it apply to a judicial subpoena or a grand jury subpoena, be concrete.

If one of the subpoenas that aid subpoenas before a grand jury has to go into the grand jury room and they can go into the Court and say, I want to know by the District Attorney who's subpoenaing me before I should be required to testify?

Mr. Joseph L. Rauh, Jr.: He can -- he can get that Your Honor because if he refuses that -- and that's the difference between that proceeding and this.

If I go before a grand jury and that they won't tell me if why they have asked me to come there.

When I refused to answer, I'm not in contempt.

I don't -- not going to be indicted.

I am taken before the Court and at this time, I say, that they didn't have any grounds for calling me.

The Court will ask them, "At that stage and before any criminal offense is committed," the Court will then say, "What the -- we'll ask the district attorney why -- why do you want this man?"

What is the probable cause and the Court will decide.

You get a -- if the man goes back and refuses to answer.

Actually, he can appeal that right out.

Justice John M. Harlan: -- (Voice Overlap) -- question on how you raise it but you -- you -- you think that in a grand jury subpoena, a man can go before the Court and say, "Before I can be asked any question, I want to know what -- what the ground is in which I was subpoenaed."

Mr. Joseph L. Rauh, Jr.: That happens everyday, if Your Honor please.

When --

Justice John M. Harlan: I never heard of it.

Mr. Joseph L. Rauh, Jr.: Well, by a man refu -- by a man refusing to answer, you can't go and get an injunction.

This was the point, I believe, Mr. Justice does it.

I mean you can't get an injunction against the grand jury, but if you refused to answer before you are put where you determine whether you're going to commit the crime of refusing to answer, you do get it from the --

Justice John M. Harlan: Now, the question is if what --

Mr. Joseph L. Rauh, Jr.: Hale and Henkel actually does say there --

Justice John M. Harlan: The question is put to you first that your proposition would be, I take it that however relevant the questions may be that before any questions are put to the witness at all, he has a preliminary objection that would go to a disclosure of the grounds on which he was being asked to testify.

Mr. Joseph L. Rauh, Jr.: I have two points, that's one of them.

Secondly, that certainly at the trial, the Government has to make some showing and the Government -- I want to make clear that the Government has conceded this case.

Justice Frankfurter finally takes a -- took a position in his questions, stronger than the Government.

The Government has conceded in this Court that there must be a showing.

They simply say they can make that showing without the normal standards of evidence and rely on the letter and I say that they can't do it under the Sixth Amendment confrontation.

But even if you can do it under Sixth Amendment confrontation, I say where they fell down was when he's -- when they indicated that there was something in this record that showed this letter and I say the one that judge wouldn't find this letter, they're out even if you could get around Sixth Amendment which you cannot.

Justice Felix Frankfurter: If you were my lawyer Mr. Rauh, would you advise me to -- I should ask counsel what right they had to infer from the fact that I put a question that that's my conclusion?

Mr. Joseph L. Rauh, Jr.: Well, I would only say that at one stage, I --

Justice Felix Frankfurter: -- (Voice Overlap) -- knowledge.

Mr. Joseph L. Rauh, Jr.: Well, may be I tried to -- to define that sir.

Justice Charles E. Whittaker: Would you tell me, is there a different rule in your judgment to be applied to a subpoena of this character from a subpoena of a -- a witness in a civil case?

Mr. Joseph L. Rauh, Jr.: Well, that -- I'm not certain how it would work out and say a witness in a civil case except again to point out that if the witness refuses to answer, there would -- the judge will have to determine relevance and there will be no requirement on this witness to answer until the judge and through the entire appellant procedure, has determined the relevance of the question.

In other words, the pro -- the -- you -- you do not get the situation where a man can be called with no reasonable grounds, you don't get that in a civil case because the judge will determine that the -- that there were by virtue of the action on the particular question.

Justice Charles E. Whittaker: Well now are you saying that one of my clients who subpoenaed can testify or to produce papers and it seem to me, I would be justified in going within and they're saying, "Just keep your mouth shut.

You don't have to testify until the personation in the subpoena first make some kind of a preliminary showing that you may have information of value and only then will you have to talk.

Mr. Joseph L. Rauh, Jr.: No, Your Honor, I do not make that suggestion, I was making it much more limited suggestion.

The witness there has the protection of the judge's decision on relevance before he is required to answer which protection he does not have here.

Justice Charles E. Whittaker: Now what's the difference between that subpoena and this subpoena?

Mr. Joseph L. Rauh, Jr.: The difference here is -- well, I suppose, one difference is, it's the Government of the United States operating to force a answer in a First Amendment ground as against a civil action which ordinarily, is not going to raise a problem.

People aren't -- individuals are not ordinarily calling people to testify unless they themselves have reasonable grounds to believe they would have a better -- there's a difference between the Government's operation here which is the congressional committee and the individual whose right, you have to protect.

Justice Charles E. Whittaker: Then if I may ask you, doesn't your argument though phrased in terms of probable cause really mean good faith?

Mr. Joseph L. Rauh, Jr.: I don't believe that Your Honor, I believe it in terms of -- and the Government agrees.

You see, we had a wonderful morning here.

We've had a -- a meeting of the minds.

The Government and the -- Mr. Shelton's counsel agree, "That there must be a reasonable basis for believing that the witness has information which is of value to the Committee."

Justice John M. Harlan: Your agreement doesn't bind this Court.

Mr. Joseph L. Rauh, Jr.: No I -- I was suggesting that it hadn't bound the Court.

Justice Felix Frankfurter: (Inaudible) agreed to argue the opinion for the Court.

Mr. Joseph L. Rauh, Jr.: Well I -- I'm not suggesting that, I simply said, we have had a remarkable unanimity up here on -- and the Government has conceded the case because they have therefore said, "We have a right to the letter," but they -- there is no letter because the district judge wouldn't find the letter and that is perfectly clear.

And I would like to -- (Voice Overlap) --

Unknown Speaker: Now Mr. --

Mr. Joseph L. Rauh, Jr.: Excuse me.

Unknown Speaker: You didn't (Inaudible)

Unknown Speaker: How long did you -- could have subpoenaed the letter to the committee (Voice Overlap) --

Mr. Joseph L. Rauh, Jr.: We tried Your Honor -- we -- we issued this subpoena to the Committee that's referred to on page 26 of our brief of our record.

The first point we issued a subpoena for all documents relevant to this.

This was denied and you -- and on the ground that we weren't entitled to it because probable cause wasn't an issue and you couldn't have issued any further subpoena because this -- I mean this -- if we issued another subpoena after the judge had denied that one.

I think I might have been in contempt in case.

If you look at this record pretty carefully, there were a couple of times when I think that the judge felt I was pressing his letter pretty hard.

Unknown Speaker: I want to join the (Inaudible)

Mr. Joseph L. Rauh, Jr.: Precisely, Your Honor, and only after a jud -- court order.

In other words, what would've happened was, if the Court had ordered the production of this letter, then the -- then the senate would -- would have automatically, there's a procedure whereby when the Court orders a reduction of a -- of a document then the Senate and the House do provide it, but the initial step is the Court's ruling that the document is a material.

Justice Felix Frankfurter: Automatically, with the reservation -- with an express reservation in terms by the Congress that it is under no duty to respond to the subpoena.

Mr. Joseph L. Rauh, Jr.: Precisely, and I kept saying when they subpoenaed this out, Your Honor, then of course we are entitled to an acquittal because the case is not proved and this seemed to be rec -- recognized if any form of cause were necessary as is I would point out here.

Justice Felix Frankfurter: You're right if you are entitled to the -- to the letter.

Mr. Joseph L. Rauh, Jr.: That's correct, Your Honor.

Justice Felix Frankfurter: And if the letter was relevant to this -- was -- it was necessary to prove the ingredients of the crime and if either the Government or the Congress will pose an essential piece of documentation to prove the crime, then of course you must go free.

Mr. Joseph L. Rauh, Jr.: Well --

Justice Felix Frankfurter: All of these have to be answered first.

Mr. Joseph L. Rauh, Jr.: I'm glad that we could --

Justice Felix Frankfurter: Won't you agree?

Mr. Joseph L. Rauh, Jr.: Yes, I'm glad we could end on such a nice note of agreement, if Your Honor please.

Justice Felix Frankfurter: Oh well --

Justice Potter Stewart: Mr. Rauh.

Justice Felix Frankfurter: He could recognize things.

Justice Potter Stewart: I didn't understand that it's important to my -- to my understanding of your brief.

What's your distinction -- what distinction do you make between this kind of a subpoena to Mr. Shelton and a subpoena to an ordinary witness in a civil action of the Federal Court?

Mr. Joseph L. Rauh, Jr.: I'll make the following distinctions.

First, this is a subpoena -- this is a subpoena by the United States of America through its Congress.

The other is essentially an individual action.

Justice Potter Stewart: Well, I'm like talking about the Federal Court.

Now let's -- let's assume this kind of case to make it -- let's assume a -- as a civil action brought in the District of Columbia for assault and battery allegedly -- allegedly committed at a communist meeting here and you -- you subpoena some supposed people who are at that meeting and you saw the -- saw the thing happened.

I would so assume that kind of case in the Federal Court.

Now what's the distinction between subpoenaing even mistakenly people as witnesses in that kind of a case and a subpoena here?

Mr. Joseph L. Rauh, Jr.: I have three, Your Honor.

I have been trying to write out as you --

Justice Potter Stewart: Alright.

Mr. Joseph L. Rauh, Jr.: -- you spoke so if I didn't look attentive, but I was trying to prepare my answer.

First, there may be others, I would say that this governmental action subject to due process and it is arbitrary for a congressional committee to summon someone without any cause and that is this record.

Secondly, there is in the Court a proceeding for protection which I tried to make in my answer to -- before that the mere mechanics of how it works is a protection in the court room that it is not here.

But if the man walks here and say, "I don't know that I'm a victim of accident."

The judge is going to make --

Justice Potter Stewart: Now, let's the say the first question is -- is -- to him is, "Where are you at that Communist meeting that night?"

Mr. Joseph L. Rauh, Jr.: In a --

Justice Potter Stewart: As I refuse to answer.

Mr. Joseph L. Rauh, Jr.: Well, obviously, he would -- he would say to the judge, "I am a victim of accident, I -- I was -- I have nothing to do with anything, they must have had a mistake -- mistaken identity which is --

Justice Potter Stewart: But he -- he won't say no to that question under my case.

Mr. Joseph L. Rauh, Jr.: Then the judge would ask --

Justice Potter Stewart: In fact Mr. Shelton would not say no.

Mr. Joseph L. Rauh, Jr.: No.

The judge would immediately ask the prosecutor -- ask the --

Justice Potter Stewart: This civil action (Voice Overlap) --

Mr. Joseph L. Rauh, Jr.: And ask the parties what the relevance of these all is and -- and if relevance were shown, the judge would finally decide it one way or another.

This fellow would at least have had the protection in there of a judicial decision before answering.

So I say there -- there's a difference in the type of action here and there's a difference in the practical application of the action.

And thirdly, and I -- I don't know which is the most important of the three and I noticed that the light is on and I was going to end on -- on this.

This is an action in an area of the First Amendment.

There can be -- even assuming, everything this Court has said, if Your Honor please, assuming -- assuming exactly what the -- I accept -- I mean I don't accept the decisions of Barenblatt and Wilkins and in Braden, do not -- they base it on a relative consideration of need.

There can be no need for the testimony of a victim of accident and particularly in this area, the procedural requirement and this is all -- this is (Inaudible) in all of your cases where procedural requirements definiteness and certainty, must apply doubly so in this area.

So that where -- I think when the Government concedes that there is some cause, they are recognized and I think it was on a First Amendment time when they were concede that there must be a reasonable basis for believing that the witness has information, they recognized the same distinction that in essence -- I -- I would -- I would make that in this area where the First Amendment is in -- is involved, there must be some showing as -- as part of that and this is, I would say, a part from probable cause under the Fourth Amendment which possibly this Court will not have to reach since there isn't any cause at all, since there isn't any letter under any amendments.

Justice Felix Frankfurter: Mr. Rauh, isn't the First Amendment involved every time I'm asked to talk when I want to keep silent.

Mr. Joseph L. Rauh, Jr.: It may be Your Honor.

Justice Felix Frankfurter: Well, isn't it -- not maybe, isn't it?

Mr. Joseph L. Rauh, Jr.: No, I would say that they may.

Justice Felix Frankfurter: If I have a right to keep silent even -- even though what I say maybe frivolous or irrelevant or meaningless.

I'm a neurotic about keeping silent when I don't have to talk, now that's a First Amendment protection, isn't it?

Mr. Joseph L. Rauh, Jr.: I wouldn't say and I think Your Honor will be -- would recognize this particularly that there are degrees of protection -- there is a dispute on this and --

Justice Felix Frankfurter: We're not into the First Amendment.

I thought that is the clearest thing in the world.

Mr. Joseph L. Rauh, Jr.: I read the decisions of this Court be very close and disputed decisions of this Court as indicating relative considerations in here.

I read the minority is indicating that there are not relative considerations.

I read the majority as indicating that there are relative considerations of freedom of speech and protection in this area.

I say here where you're being called before one of these two Committees as the Chief Justice suggested.

We're being called before the one that's in the House in America and other is one here, the Senate Internal Security Subcommittee.

Were you being called here?

This is peculiarly vulnerable and dangerous.

Now, principles have to be established for committees but -- and I suggest there will have to be some reasonable basis for all of them, but we've reached the agreement and that cannot be decided in this case but there is a concession, there is, it seems to me an assumption that where there is a First Amendment consideration, and let me say this sir, even though this Court has decided five to four that the First Amendment does not prevent the question put, I don't think even the majority suggest that this is a frivolous contention that the four -- that that the fact that this question should never have been asked anyway, is a frivolous contention.

But I say, when you pyramid upon that, asking a person as to whom there was no ground for even calling him there, then it seems to me, there can be no question in that circumstances that the weight which Your Honors define majority put in favor of asking the question, clearly must go the other way against asking.

Justice Felix Frankfurter: But in all good conscience, in all good conscience Mr. Rauh, if I'm asked to give my view about a subject, one exercising authority either as a judge -- or the Chairman of a Senate Committee, it isn't frivolous for me to say it's none of your business if it isn't any of his business.

Now, I don't think you can really differentiate on my right to withhold disclosure of my views on any subject if anybody in authority has no business to elicit.

I don't think you can make that.

At least I cannot I understand, how they can be degrees of privacy to be -- to be breached by a public authority when he has no authority to do so.

Justice John M. Harlan: The discretion (Inaudible) you keep talking all about the -- always about the First Amendment area.

There's another constitutional (Inaudible) and there's a right of Congress to legislate, won't you agree with that (Inaudible).

Mr. Joseph L. Rauh, Jr.: Of course, Your Honor, I -- I agree and I would say, finally it was -- we have discussed the Fourth and the First Amendment above all, and I don't' see what this seems to me, what can settle this to due process requirement.

And if there is anything I might suggest that would be arbitrary in America today when the risk that comes was going before these committees and I've been before them.

There's anything that would be arbitrary, it would requiring a man to come and have his name in the area of communism without some reason maybe as much as I say probability, maybe as much as the Government says reasonable.

But if there would be anything that would be arbitrary, I'd say it was that.

Justice Felix Frankfurter: But that isn't the only Committee you've been exercising this kind of authority and has been a (Inaudible) as this Committee has been.

Mr. Joseph L. Rauh, Jr.: If Your Honor please.

Justice Felix Frankfurter: And you well -- very well know that don't you?

Mr. Joseph L. Rauh, Jr.: I am not here to rectify the wrongs of history.

I'm here to present a case of a particular human being who has obviously, on this record been wrong.

Justice Felix Frankfurter: But you are here -- you are here in the context of -- of a claim that this Court was here to incur Congressional investigatorial power in order to tell a witness when it summons him in advance why it has something.

You are making that claim and that is your claim.

Mr. Joseph L. Rauh, Jr.: My claim is based upon the concurring opinion in Watkins which reads as follows, "By making the federal judiciary, the affirmative agency for enforcing the authority that underlies the congressional power to punish for contempt, Congress necessarily brings into play the specific provisions of the constitution relating to the prosecution of offenses and those implied restrictions under which a court functions."

I could not have said it better sir.

Justice Felix Frankfurter: You have well brought up Mr. Rauh and you know that was said in the context of a particular situation where the witness didn't have the remotest idea, wasn't told there was an indication why he's being asked a question that he is being asked.

Mr. Joseph L. Rauh, Jr.: But (Voice Overlap) --

Justice Felix Frankfurter: (Inaudible)

Mr. Joseph L. Rauh, Jr.: But principles, if I may submit in which I have principles applied generally sir.

Justice Felix Frankfurter: You have to continue that elsewhere.

Print this transcript Transcript:

Argument of J. William Doolittle

Chief Justice Earl Warren: -- Petitioner versus United States.

Mr. Doolittle.

Mr. J. William Doolittle: Mr. Chief Justice.

The Court will recall that on Thursday, I was analyzing this case in terms of a single count, count 7 which arose out of petitioner's refusal to answer a question as to whether any of the members of the New York Herald Tribune cell of the Communist Party to which he had belonged until 1948 were still employed by that newspaper.

I chose that count because it does not involve petitioner's main First Amendment contention that he could not be forced to disclose names because it does not present the problem of temporal remoteness that the petitioner raises and because it does not present any problem of pertinency to an inquiry into Communist infiltration of news media.

Justice Hugo L. Black: Which number count is that?

Mr. J. William Doolittle: I'm sorry sir, Number 7.

Justice Hugo L. Black: You said you are limiting it to one count, which one is that?

Mr. J. William Doolittle: Number 7 sir.

Justice Hugo L. Black: Is it printed?

Mr. J. William Doolittle: It appears in the joint appendix at page 5, that's the large blue document.

Now, on arguing that, the Government had fully proved the subject under inquiry, I described to the Court the nature of the proceedings, the remarks of the Chairman and of Senator Hennings and of the character of the questioning of petitioner all of which establish beyond doubt that the subject was Communist infiltration into news media.

Incidentally, I should like to observe in this connection that most of what I said is fully applicable to the Shelton and Price cases which arose out of the very same hearings.

I also argued that while the petitioner did not raise any objections either in the area of the subject matter or the pertinency of the questions that he was fully apprised to both.

Now, in order to be certain that I reach the matter, I should like now to cover the point raised by Mr. Justice Black on Thursday, and that is, the balance that is to be struck under the First Amendment and under the Barenblatt case between the governmental interest and the private interest that is involved.

In cases such as these, where there is an undoubted interference with the individual's right to be left alone, I shall continue to limit my primary focus on Count 7 since an affirmance on that count alone will sustain the sentence imposed by the trial court.

The importance of the governmental interest involved in the conduct of investigations of Communist activity in this country has been fully explained in this Court's opinion in the Barenblatt case.

That interest was there held to be paramount even with respect to lawful activities for, as the Court pointed out, of necessity the investigating process, investigatory process must proceed step by step.

That governmental interest was there held to be paramount even with respect to an area as sensitive as education.

An educational institution, said to the Court, is not a constitutional sanctuary from inquiry and surely, the pressroom is not in a more favored room -- it is not in a more favored position than the classroom.

That governmental interest was there held to be paramount even with respect to so-called associational activities.

In short, the governmental interest here is in no sense less compelling than it was in the Barenblatt case.

Now of course, it is relevant in balancing the competing public and private interests that are involved in case --

Justice Hugo L. Black: Do you think -- do you think that that's the proper way of stating it?

Mr. J. William Doolittle: I'm sorry sir.

Justice Hugo L. Black: Do you think that's the proper way of stating the balancing?

Mr. J. William Doolittle: Well, I havren't completed stating the balances.

Justice Felix Frankfurter: But you said twice, meaning the Government's interest and you haven't said in what -- and the private interest of the party.

I presume you would have to balance the Government's interest getting this particular information, this particular power in connection with its prospects in passage of the law against private interest of the man plus the Government's interest in seeing that laws do not interfere with the rights of associations, and expressions and beliefs.

Mr. J. William Doolittle: Yes sir and I should now like to focus more particularly on the information that the governmental interest was directed to in this case.

It is relevant of course in balancing the competing public and private interest to consider what information of value the subcommittee might have elicited by a frank answer to the question.

Now focusing again on the question involved in Count 7, the Chairman of the Senate Internal Security subcommittee had indicated that the subcommittee had information that there was a Communist newspaper cell still in operation in New York City.

When the petitioner was asked whether the New York Herald Tribune cell to which he had belonged was still in existence, he stated that he did not know.

He was then asked the question on which Count 7 is based, a question that would obviously have thrown some light on that subject and that is whether any of its fellow members of that cell as of 1948 were still with the Herald Tribune.

Now, a negative answer would've provided a strong, albeit not conclusive indication that the existing cell was not in the New York Herald Tribune and perhaps the subcommittee would, on the basis of that information have held justified in concentrating its investigatory efforts elsewhere.

An affirmative answer, would have confirm the subcommittee and the possibility that the existing cell was in the Herald Tribune and as I've indicated would have lay a foundation for a number of additional questions such as whether any of these persons who were in that cell in 1948 and still with the Herald Tribune, whether any of them were to petitioner's knowledge members of the communist party, what their numbers were that is to say how many of them there were, what their party functions were and whether or not, they had any supervisory or policy functions with the newspaper.

Justice William O. Douglas: Could Congress legislate as to who the New York Times or Tribune or Washington Post could employ?

Mr. J. William Doolittle: I don't suppose that they could legislate directly on that subject Mr. Justice Douglas.

Justice William O. Douglas: Could they prescribe standards for a newspaper reporter?

Mr. J. William Doolittle: No, I don't believe they could.

Justice William O. Douglas: Could they say that they would have to pass a certain loyalty test to be given by the Congress before they could report for the newspaper?

Mr. J. William Doolittle: No sir, I should say they could not.

Justice William O. Douglas: Then where is this in the legislative field of Congress?

Mr. J. William Doolittle: Well, what we must remember in cases like this it's not necessarily into this specific area of the press of course that Congress might wish to legislate.

For example --

Justice William O. Douglas: This was -- this was an investigation into agencies off mass communication, wasn't it?

Mr. J. William Doolittle: This part of --

Justice William O. Douglas: This was --

Mr. J. William Doolittle: -- the basic inquiry was certainly focused on that question.

Justice William O. Douglas: Into the press.

Mr. J. William Doolittle: Yes sir.

Now, let me suggest this that for example the -- if the -- if the subcommittee should find for example that in particularly critical areas such as the ability to influence public opinion one way or the other.

The Communists had infiltrated extensively, that may be the basis for the committees wanting to for the Congress wanting to strengthen the internal security laws generally, or on the other hand if they should determine for example that there was no serious problem in the -- in certain critical areas such as press, education and whatnot.

They might decide, well since they don't -- since the Communist does not seem to be getting into the areas that can really influence public opinion and really cause a serious difficulty, maybe we should like to draw back a little bit.

Perhaps we should like to enlighten the internal security laws.

Justice William O. Douglas: I suppose for that reason, they could go through all the churches too.

Take in every minister and all the sermons, what he says and --

Mr. J. William Doolittle: Well Mr. Justice Douglas, I -- no.

I wouldn't agree that they could nor would I agree that they could go through all the newspapers and question all of the writers, and the editors on the substance of what they had written in those papers, but that certainly isn't involved in this case.

And there was no questioning here on the substance of the newspapers on what these reporters (Voice Overlap) mererly on their activities.

Justice William O. Douglas: I know but we're in the field of ideological meaning, ideological matter.

We're in the field of what a man working for a newspaper or a minister in a pulpit, but he thinks what his political philosophy is, what his social philosophy is, we're in that area.

Mr. J. William Doolittle: Yes sir.

We're in that area just as we were in the area of education in Barenblatt and there the Court said that the educational institution is not a sanctuary, simply because it is an institution of education and simply because that area --

Justice William O. Douglas: Of course a person --

Mr. J. William Doolittle: -- is sensitive.

Justice William O. Douglas: -- commits a crime the fact that he is the editor of New York Times doesn't make him immune.

Mr. J. William Doolittle: Yes sir.

Justice William O. Douglas: But that's not what we're talking about.

There's no criminal conduct being investigated here, isn't it?

Mr. J. William Doolittle: The conduct here was a lawful activity.

That's right Mr. Justice.

Justice Hugo L. Black: May I say that you're not quite meeting the inquiry I made and maybe I'm wrong in making it.

You're depending on one question and you say you're going to balance the interest of the Government in getting this information which is, as the numbers that you associate within the cell, do you know whether any of them are still employed with the Herald Tribune?

As I understand it, you can't -- you're not to discuss that on a generalized basis, case by case balancing.

What you're interested in here you say that they have the right to pass some law that this would be helpful.

I would suppose in putting your balance, you would have to show why they need this particular information in order to pass some law that they had a right to pass, not in general about the investigation but what is that in the record to show that on balance, the Committee actually needed to know the name of the person that he had associated with, a particular person it's not indicated there were many, they had to do that.

Is there any information that they didn't know already know the name?

Mr. J. William Doolittle: There is no indication one way or the other Mr. Justice.

One can only assume --

Justice Hugo L. Black: But if they knew the names, I suppose you would not say that they simply needed him -- they needed that to pass the law if they already had the names, would you?

Mr. J. William Doolittle: Well, if they have the names, their valid legislative interest might be in confirming their information we would certainly contend that that would a valid legislative purpose.

Justice Hugo L. Black: Well, I suppose they already knew who they were, would you claim that they knew who they were, the interest of the Government was so great in having this particular man repeat their names in public that it was so great to inform them on how to pass the law.

They have him do that formal useless thing that would outweigh his interest, and the public's interest in seeing that their First Amendment freedom is observed.

Mr. J. William Doolittle: Well, Mr. Justice Black, perhaps I might suggest that if the information they had was so absolute -- absolutely certain perhaps by reason of admissions of the persons in question that there was no possible reason for having that information confirmed if that information was not needed to be stated in order to lay a foundation for further questioning.

It is conceivable that the case might arise in which there could be no valid legislative purpose, but I suggest that this --

Justice Hugo L. Black: But whose duty is it to show that with reference to the balancing of constitutional rights?

Mr. J. William Doolittle: Well, I suggest that in the first place, Mr. Justice, in this case, that particular question just is not presented.

Justice Hugo L. Black: Is it not?

You have -- you have limited yourself to one count which seems to ask the man and you say that that source essentially outweighs the First Amendment right to ask him if he knows whether any of these people are still employed for the Herald Tribune.

Suppose they already had the information from that informant or some others, it's exactly who they were.

Would you still say that they could make him answer this question and would balance it against his rights under the First Amendment?

Mr. J. William Doolittle: Yes sir, I would because not only --

Justice Hugo L. Black: Why do they need it?

Mr. J. William Doolittle: Not only for the reasons that I've suggested in order to confirm the basis of the information they already have --

Justice Hugo L. Black: But suppose they had it --

Mr. J. William Doolittle: -- to lay a --

Justice Hugo L. Black: -- suppose it's conceded that they had it.

Suppose they actually had it in their record, they simply wanted him to testify to it.

Mr. J. William Doolittle: Well, again --

Justice Hugo L. Black: Would you say under those circumstances that the interest of the Government in having him make that statement publicly outweighs the public's interest in the faithful observance of the freedoms for the First Amendment?

Mr. J. William Doolittle: I would say that in this -- in the circumstances of this case in pursuit of the kind of legislative inquiry that this Committee was conducting, I would say that that would be a valid legislative (Voice Overlap)

Justice Hugo L. Black: Would that -- can that be true even though you do not know what kind of legislation could be passed on this, based on the simple fact that he had publicly stated that which they already knew --

Mr. J. William Doolittle: Well, Mr. Justice, naturally, this is a part of the entire inquiry into the extent of infiltration of the free press and this was an important piece of information to fit into that whole checkerboard that had been testified to by a number of --

Justice Hugo L. Black: Did you say --

Mr. J. William Doolittle: -- witnesses.

Justice Hugo L. Black: -- free press?

Mr. J. William Doolittle: Yes sir.

Justice Felix Frankfurter: Mr. Doolittle does the press enjoy a special hostile favors in the interest of other means of transmission to the (Inaudible)?

Mr. J. William Doolittle: Well, they do enjoy special favors, yes sir.

Justice Felix Frankfurter: Can Congress take those favors away?

Mr. J. William Doolittle: Presumably so without affecting the freedom of the press.

Chief Justice Earl Warren: And take away from you --

Justice Hugo L. Black: (Voice Overlap) suppose they're special favors by the First Amendment too, isn't it?

Mr. J. William Doolittle: I'm sorry?

Justice Felix Frankfurter: It suppose to enjoy some special favor by the (Voice Overlap)

Mr. J. William Doolittle: Yes sir, it certainly does.

Chief Justice Earl Warren: Could they take the privilege away from one newspaper and -- not others?

Mr. J. William Doolittle: Most certainly not, Mr. Chief Justice.

Chief Justice Earl Warren: I understood -- I understood here to put some limitations on how far the Committee could go in investigating this situation and I wonder if they -- if they can take this man off of the copy desk in the newspaper and ask him the questions that they asked him, why they couldn't go from Solar to Garret in the building and ask everybody up to it and including the publisher whether or not they were influenced by timeless propaganda.

Mr. J. William Doolittle: Well, Mr. Chief Justice --

Chief Justice Earl Warren: Could they -- did I understand you correctly to say they could not do that?

Mr. J. William Doolittle: Oh, I was about to say that -- I would say that if the Committee had some basis for concluding that those individuals could provide the Committee with information that would help it in its inquiry into infiltration into the press that it could ask those people questions.

Chief Justice Earl Warren: Well, don't you think if there was a possibility that the New York Times and the New York Herald Tribune had been subject to this influence of the communists that those who are guiding the destiny of the papers, those who are controlling the policy would necessarily have as much interest -- as much knowledge about it as the man on the copy desk?

Mr. J. William Doolittle: Well, part of the inquiry was whether or not that was so.

Of course, it is quite possible that those in command might not know that there were members of the Communist Party among their employees.

Chief Justice Earl Warren: Well, it's possible it would not but isn't it likewise possible if they would if it had actually influence the output of the paper, do you not think that the publisher of the paper would have at least this much information as this man and possibly more?

Mr. J. William Doolittle: Well, he may Mr. Chief Justice although quite possibly he would be lacking in a great many of the details as to the way in which the communist party may have intended to operate within the area of the press and so on.

But I don't doubt at all as to that in answer to your question that he would certainly have relevant information on the subject.

Chief Justice Earl Warren: And therefore -- and therefore would -- he would be able to take anybody in the -- anybody in the newspaper and quiz them along the same lines that this man has been quizzed insofar as the influence of communism on the policy of the paper.

Mr. J. William Doolittle: Again, so long as they had some basis for knowing that the -- for believing that the individual did have some information that would be helpful to the Committee, yes sir.

I see that my time is --

Chief Justice Earl Warren: Yes.

Mr. Van Arkel.

Argument of Gerhard P. Van Arkel

Mr. Gerhard P. Van Arkel: Your Honor, at each stage of this proceeding, the Government has relied on a different question or group of questions to sustain the verdict below.

Here, it relies on Count 7 and I would make two observations with respect to that particular question.

The first is what to question is not have the Committee inquired of the petitioner do you know whether or not there are presently any communists employed at the Herald Tribune?

The petitioner would almost certainly have answered the question and almost equally certainly would have answered it no because he left the party some eight years before he left the Herald Tribune five years before and such a question would not be a question that sought the identification of any person who had been associated within the party.

This question while couched in present terms is actually an effort to go back once more to the time when he was in the Communist Party in 1948.

The second observation I would make is that the petitioner had made it entirely clear to the Committee by the most exact statement that he would answer any questions asked in of the Committee -- by the Committee except questions which sought names.

Now, if the purpose of this question was something other than to seek names, and I suggest that a reasonable witness would conclude that it was a question which was designed to elicit names then it would seem to me that in common fairness, the Committee should have informed petitioner that that was not the question, not the purpose of asking a question, but they did not go -- intend to go on and ask the obvious next question namely, who are those persons and the rest of it.

I think it was no under -- misunderstanding on this matter either by the members of the Committee or by the petitioner and I think that any explication of the purpose of the question, if it was other than to seek the naming of names was due to the petitioner.

Thank you Your Honor.

Print this transcript Transcript:

Argument of Kevin T. Maroney

Chief Justice Earl Warren: John T. Gojack, Petitioner, versus United States.

Mr. Maroney.

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

Yesterday, I had pointed out certain of the evidence in the case which showed that the Committee, the time the hearings were set for Fort Wayne, had no knowledge of the scheduled election at (Inaudible), but that a continuance was granted when a responsible request for such a continuance was made by petitioner's then counsel.

The hearings were continued from February 21 to February 28, which was the time period requested, I think they requested at least a week, and petitioner appeared on the latter date, February 28, in Washington.

He testified extensively on February 28 and March 1.

He answered a large number of questions concerning his union offices, his military service, his occupations and employment, but he refused to answer questions concerning activities in the Communist Party or connected with the Communist Party challenging the right of the Committee to ask such questions which he alleged were in violation of his First Amendment rights.

Justice Byron R. White: Did he have a prepared statement?

Mr. Kevin T. Maroney: Yes, sir, he did.

Justice Byron R. White: Where is it?

Mr. Kevin T. Maroney: It's set forth in the record at page 201.

The prepared statement was submitted at the outset of the hearings.

The petitioner was not the first witness, he was the third witness.

The first three witnesses, all were represented by the same counsel and the written statement, which is in the record, was submitted on behalf of those first three witnesses including the petitioner and was submitted to the Committee at the beginning of the hearings.

The statement challenges the lack of a legislative purpose.

It alleges the purpose of the hearing was to force UE out of business.

It alleges that the purpose of breaking a union is not authorized by Public Law 601 and that even if such a purpose were authorized, it would violate the First Amendment and that the basic resolution is unconstitutional and the disclosure of his political beliefs or their political beliefs would violate their First -- First Amendment rights.

Justice Felix Frankfurter: Mr. Maroney, does the -- the ground of objections -- the statement of objections to which you've just referred cover the claims of invalidity urged by Mr. Donner or are you claiming that some of the things now urged -- urged in the Court have not been raised at the Committee hearing?

Mr. Kevin T. Maroney: Well, the first -- the first point in this written statement is that the Committee is not engaged in a legislative investigation for a bona fide legislative purpose.

And then, it goes on to --

Justice Felix Frankfurter: I've -- I've read it and I know what's in it.

I just want you to tell me whether, in this case as in prior cases, the Government says that some of the points raised in the Court -- in the Court proceedings had not been raised at the hearing.

Have we got any such question in this case?

Mr. Kevin T. Maroney: I think that the -- the general point they raised as to the charges of exposure and union busting would be barely in that general objection made in the written statements, Your Honor.

Justice John M. Harlan: How about pertinency?

Mr. Kevin T. Maroney: No pertinency objection.

No, sir.

We -- we think it's clear that at no time has petitioner raised an objection as to pertinency.

I think in his brief, now he does, but he didn't do it before -- before the Committee.

Chief Justice Earl Warren: Mr. Maroney, may I ask you if it had not been for this caustic telegram that you -- you mentioned yesterday on the question of exposure for exposure's sake, would your position be the same here?

Mr. Kevin T. Maroney: On -- on the question of exposure, yes, sir.

Chief Justice Earl Warren: Yes.

You don't -- in other words, you don't rely on that telegram as provocation for the things that were said by the Chairman of the Committee.

Mr. Kevin T. Maroney: Only -- only on the allegations which they make, and which they have made continuously concerning the fact that the Committee was engaged in union busting.

Chief Justice Earl Warren: Yes.

Mr. Kevin T. Maroney: And, it was -- the discussion at the interview with Mr. Goldstein, who was a Washington representative of the petitioner's union, coupled with a telegram was what gave rise to Congressman Walter's retort to the provocations of the telegram and to the accusations of Mr. Goldstein at that interview, but --

Chief Justice Earl Warren: But the --

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

Chief Justice Earl Warren: Yes.

Mr. Kevin T. Maroney: -- argument, generally, goes beyond that.

They go to newspaper clippings which quote “members of the Committee” and to other sources which purport to quote “members of the Committee” on the --

Chief Justice Earl Warren: But, if it were not for that telegram, would your -- would your case be any different here?

Mr. Kevin T. Maroney: Not -- not on the question of exposure, Your Honor.

Chief Justice Earl Warren: Yes.

Mr. Kevin T. Maroney: On the exposure argument, we rely on this Court's decisions in Watkins and Barenblatt in which the -- substantially the same contentions were made based on similar evidence, statements of members of the Committee and things of that sort, which they urge and show that the Committee was engaged in a pattern of exposure.

Chief Justice Earl Warren: Well, I don't suppose, in either of those cases, there was anything like there is here where the Chairman of the Committee says that he feels that his duty to put this union out of business and --

Mr. Kevin T. Maroney: Well --

Chief Justice Earl Warren: -- I just wondered if -- if you thought that in, in and of itself would show the purpose of the Committee or whether you consider that that was provoked by the telegram and was, therefore, excusable.

Mr. Kevin T. Maroney: That particular statement, Your Honor, was made, we think, in -- as a result of the provocation of the telegram and of the accusation made by Mr. Goldstein at the U -- at this interview which was recorded, the statement about putting the union out of business.

Moreover, the -- we think that, under the Court's decisions in Watkins and Barenblatt where the Court said that it would not look into -- it could not inquire into the motives of members of the Committee where it appeared from the record that a legislative purpose of the Congress was being served.

In -- in the Barenblatt case the Court said in part that so long as Congress acts in pursuance of a -- of its constitutional power, the judiciary lacks authority to intervene on the basis of the motives which spur the exercise of that power.

A similar statement was made in Watkins where the Court there said that their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served.

Now, in this case, we think it clear that the record demonstrates that the Committee here was, at the time of these hearings, engaged in a le -- in a proper legislative purpose.

The District Court made such a finding and that finding is quoted in the Court of Appeals opinion in the record at page 229.

The Court of Appeals made a similar finding that there was a dominant legislative purpose in these hearings and of course, we think that -- that those findings and conclusions of the lower courts are amply supported by the record.

At the outset of the hearings at which petitioner testified, the Committee Chairman announced and his part of his opening statement, which is set forth on page 6 of our brief, he stated there will be considered at this hearing testimony relating to Communist Party activities within the field of labor.

The methods used by the Communist Party to infiltrate labor organizations and the dissemination of Communist Party propaganda.

Similar statements were made during the course of various colloquy with the witness during his interrogation and in connection with questions which he refused to answer made by members of the Committee, urging him to answer and such statements are set forth in our brief at pages 10 and 12, reiterating the interest of the Committee in ascertaining the extent of Communist infiltration of labor unions and his knowledge concerning such activity which the Committee was seeking him to testify.

Additionally, the -- there is in the record also the Committee's 1955 annual report which begins in the record at page 126 -- or -- or 128, rather and in that annual report, the Committee refers to the Fort Wayne hearings, the hearings at which this petitioner testified.

They -- the Committee reports that documented proof that a Communist dominated union siphons off worker's dues for Communist purposes was produced in the course of Committee investigations and hearings on District 9 of the UE.

Committee also reported, and this statement appears on page 131, that these documents which had been introduced contained incontrovertible evidence of the leadership of District 9 had diverted workers' union dues to -- to the support of the Communist Party.

Chief Justice Earl Warren: Was that before or after -- that report, before or after the -- the hearing?

Mr. Kevin T. Maroney: This is after the hearings, Your Honor.

This is for the year 1955 at which the Committee was reporting to the Congress in its annual report concerning its activities during the year, and that report makes reference to these hearings and the findings and conclusions that the Committee was making as a result, in part, of the testimony adduced at these hearings.

The report --

Chief Justice Earl Warren: Could that be used to support the hearing -- an afterthought in what was written by the Committee a year afterwards?

Mr. Kevin T. Maroney: Well, the Committee's report, Your Honor, and the legislative recommendations which the Committee also makes in that report is support for the contention that the Committee had a proper legislative purpose at the time of the -- of the hearings here.

There is also in the record the -- I think it's Exhibit 7, the Committee's report for the year 1954 which is the preceding year and which refers to the Committee's investigation of Communist activity in the labor field, plus --

Unknown Speaker: (Inaudible)

Mr. Kevin T. Maroney: I'll try to get in a minute, Your Honor.

Now, additionally, the Court-- or the Congress has, from time-to-time, as the Court knows, passed legislation which has dealt with the problem of Communist activity in the labor field.

The Communist Control Act of 1954, which was a year preceding these hearings, was passed and which added to the two categories of Communist organizations established in the Internal Security Act of 1950, added the third category of a Communist-infiltrated organization which is defined in the statute as an organization do -- as a labor organization dominated and controlled by the Communist Party.

The -- the Section 9 (h) of the Taft-Hartley Act, which required affidavits of non-Communist union officers, shows the interest of Congress continuously in the problem of Communist activity in the labor field, and a number of other statutes, the recent repeal of Section 9 (h) and the enactment of the new statute which prohibits members of the Communist Party from holding union offices contemporaneous with being members of the party.

Now, in just the -- I think that pretty well sums up our contentions on the legal points made in this case.

Your Honor, there's a colloquy concerning the admissibility of Exhibit 7 which begins at page 15 of the record and two extracts are quoted by the Court at page 20 and 21.

That -- those extracts or one of them deals with the Communist Party colonization program.

Justice Potter Stewart: Mr. Maroney, I don't know how much relevance it is, but just to enlighten my ignorance, Section 9 (h) is -- was repealed in 1959, was it not?

Mr. Kevin T. Maroney: Yes, sir.

Justice Potter Stewart: And what was substituted in its place, could you tell us?

Mr. Kevin T. Maroney: Your Honor, I'm not sure that it was substituted as a -- as a package --

Justice Potter Stewart: But something else was enacted.

Mr. Kevin T. Maroney: But at about that same time, there was enacted the statute which is really in two parts.

The first part of the statute prohibits individuals convicted of certain -- certain criminal offenses from -- within the preceding five years, I think, from holding jobs in certain union --

Justice Potter Stewart: Union office.

Mr. Kevin T. Maroney: -- union offices unless, I think, there's a provision whereby the Parole Board can certify that they have been rehabilitated and, therefore, can hold the job.

There's a second part to that which prohibits members of the Communist Party from holding certain high level union offices.

Justice Potter Stewart: Now, what are the sanctions --

Mr. Kevin T. Maroney: It's a criminal offense.

Justice Potter Stewart: What is -- what are the present sanctions to enforce those provisions?

Mr. Kevin T. Maroney: It's -- it's a criminal offense --

Justice Potter Stewart: It's a criminal offense.

Mr. Kevin T. Maroney: -- for a Communist Party member to hold such a union position.

Justice Potter Stewart: On his part.

Mr. Kevin T. Maroney: On his part.

Justice Potter Stewart: Is there any sanction against the union as there was in the provisions of 9 (h)?

9 (h), of course, prevented the --

Mr. Kevin T. Maroney: I understand.

Justice Potter Stewart: -- took away from the union the protected -- the protection of the --

Mr. Kevin T. Maroney: This isn't tied up with any NLRB rights, as I understand it, Your Honor, it is strictly a criminal offense as I recall it and I --

Justice Potter Stewart: Do you recall it?

Mr. Kevin T. Maroney: I can get the citation and --

Justice Potter Stewart: Well, we're pretty far-field from the issue in this case.

Mr. Kevin T. Maroney: No.

Justice Potter Stewart: But you did mention it and I was curious.

Mr. Kevin T. Maroney: But -- but it's a criminal offense for a member of the party to hold such a union position.

There is a case which has been initiated under that statute in California against, I think, Archie Brown.

That case has not yet come to trial.

I think they've had preliminary motions on constitutional arguments and so forth, but that is --

Justice John M. Harlan: Am I right --

Mr. Kevin T. Maroney: That is the first case --

Justice John M. Harlan: Am I right in thinking that there was no Fifth Amendment claim interposed at any stage of this proceeding?

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

Sort by Vote
Sort by Seniority
Sort by Ideology

Cite this Page

MLA
BlueBook
Chicago

RUSSELL v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 27 April 2013. <http://www.oyez.org/cases/1960-1969/1961/1961_8>.

RUSSELL v. UNITED STATES, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1961/1961_8 (last visited April 27, 2013).

"RUSSELL v. UNITED STATES," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 27, 2013, http://www.oyez.org/cases/1960-1969/1961/1961_8.

Same-sex Marriage Deep Dive

RUSSELL v. UNITED STATES