Cases by Issue - Legislative Investigations

Eastland v. U.S. Servicemen's Fund - Oral Argument

Thu, 23 Aug 2012 18:26:16 +0000

Case:

Eastland v. U.S. Servicemen's Fund

Media File:

73-1923_19750122-argument.mp3

Related Transcript:

73-1923_19750122-argument

Transcript:

Argument of Herbert J. Miller, Jr.

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1923, Eastland against Servicemen's Fund.

Mr. Miller you may proceed whenever you're ready.

Mr. Herbert J. Miller, Jr.: Mr. Chief Justice, may it please the Court.

The petitioners before this Court are the Internal Security Committee of the Senate, his Chairman Senator Eastland and several Senators along with the General Counsel of the Subcommittee, Mr. Sourwine.

There are three additional cases involved in this petition.

These petitioners are the Internal Security Committee of the House of Representative, several individual Congressmen members of that committee, the General Counsel and the investigator of that committee.

I would like to call to the Court's attention that just recently the House of Representatives has voted to transfer the functions of the Internal Security Committee of the House of Representative to another committee.

However, I do not believe that it creates a question of mootness in the case here where the one reason if for no other as I read the complaints in those three cases as not only asking damages specifically against the general counsel and investigator of that committee but also requesting damages against the individual congressmen members.

In any event, the main case, the United States Servicemen's Fund versus Eastland does not have that problem.

The question, the basic question at issue here is at another chapter and one that this Court has faced on several occasions as to the power of a coordinate branch of our government.

Here at issue is a subpoena that was served by the Senate, internal security committee pursuant to a resolution upon a bank.

Justice Byron R. White: Who served it Mr. Miller?

Mr. Herbert J. Miller, Jr.: I don't --

Justice Byron R. White: Does that appear on the record?

Mr. Herbert J. Miller, Jr.: I don't believe the record shows who served the subpoena.

Justice Byron R. White: Well, he didn't mail it?

Mr. Herbert J. Miller, Jr.: I do not --

Justice Byron R. White: Because they didn't mail it and I don't suppose the chairman took it down there?

Mr. Herbert J. Miller, Jr.: I have assumed that the Chairman did not.

All I can go by is what is alleged in the complaint Mr. Justice White, which says as to the third subpoena, which is the only subpoena before this Court that the defendant, which could be Senator Eastland and the other Senators and defendant Sourwine, “caused the subpoena to be issued.”

I find that in paragraph 16 of the complaint.

Justice Potter Stewart: To say it must allege that it was served, isn't it?

Mr. Herbert J. Miller, Jr.: As I read the complaint sir, it does not and I --

Justice Potter Stewart: (Voice Overlap) to say that it was issued?

Mr. Herbert J. Miller, Jr.: I believe, I believe the record is silent on that point.

Justice Potter Stewart: And all the allegation is that it was issued?

Mr. Herbert J. Miller, Jr.: The defendant caused the subpoena “to be issued.”

Justice Byron R. White: Well, is that -- and that is what the injury is apparently just from the issuance, is that all?

Mr. Herbert J. Miller, Jr.: The complaint then goes on and alleges that the subpoena is void under the First, Fourth, Fifth, Sixth and Ninth Amendments and says that the -- and the Tenth amendment and that the sole purpose of the subpoena is to chill the First Amendment right of the United States Servicemen's Fund.

Now, the relief requested in the complaint is that the Chemical Bank to whom the subpoena was addressed and the Senators and the staff be enjoined from seeking to enforce the subpoena and also to have the subpoena declared null and void.

The records sought were -- according to the evidence adduced at the preliminary hearing before the District Court and the record is quite sparse on that apparently dealt with the normal bank records, cancelled or copies of cancelled check, bank statements, although the record is very, very weak on this point.

Also, there is no showing as to the number or amount of the record that were in fact in the hands and the custody of the bank.

It is however clear -- it is however clear and I think this is a very important part of this case that the plaintiffs below and respondents here were seeking records belonging to the bank, the recipient of the subpoena and were not seeking to enjoin the production of records which in fact belong to them.

The respondent here is a non-profit corporation.

It has a tax exempt certificate and has in fact filed with the Internal Revenue Service returns which specify certain contributors to this organization.

The activity of the United States Servicemen's Fund as shown by the evidence in the court below was to establish coffee houses adjacent to military bases and to have discussions with respect to many items controversial or not.

There was also a demonstration that the primary function of this committee was or the fund to discuss and the Vietnam war and to take whatever steps they could take by terms of persuasion, education and similar steps to demonstrate that the Vietnam war was one -- was -- should not be a part of the American effort.

Chief Justice Warren E. Burger: Mr. Miller, I --

Mr. Herbert J. Miller, Jr.: Yes Your Honor.

Chief Justice Warren E. Burger: I don't know whether it's of any importance or not but since the question arose and you have undertaken to answer it about the subpoena, I have thought and I find that my memory was correct that on page 13 of the appendix there is an allegation, paragraph nine at the bottom that the Senate Committee, subcommittee caused to be served on the Chemical Bank of New York, the subpoena duces tecum?

Mr. Herbert J. Miller, Jr.: If my memory serves me correctly Your Honor, that is the fist subpoena.

There are three subpoenas that were served in this case.

The first was withdrawn.

I believe that allegation refers to that subpoena, that subpoena was withdrawn.

Chief Justice Warren E. Burger: We're just concern with the one on 16.

Mr. Herbert J. Miller, Jr.: We are just concern with the third subpoena.

The second subpoena was served but the time to comply was so short that at the request of the Servicemen's fund, the committee withdrew the second subpoena and then the third subpoena issue.

And as I say, as I read the complaint, as I read the complaint, the only allegation is that defendants caused the subpoena to be issued and that sir is the third subpoena.

The Court of Appeals ruled that there was no immunity attaching to the conduct of the petitioners in this cause under the speech and debate clause.

I think that the decisions of this Court clearly demonstrate that there is in fact Senatorial immunity with respect to the authorization of this investigation.

With respect to the issuance of the subpoena and in fact I would go one step further even though the fact is not in the record and say with respect to the service of the subpoena.

This Court in Gravel and in Doe versus McMillan has given a careful and thoughtful consideration to the requirements of the coordinate branch of government, namely the Congress of the United States to participate in their legislative proceeding without fear -- without fear of either intimidation by the executive or being called before as the case would say a potentially hostile judiciary.

And they have gone further.

The cases have gone further and say -- and in addition to that, members of Congress should not be burdened with the difficulty of defending suits which are brought against them for acts performed in the legislatives sphere.

Thus, we already have the fact that voting, committee reports, authorizing committee investigations and receiving materials pursuant thereto, introducing material at committee hearing, referring the committee reports to the speaker.

Distributing and using reports for legislative purposes are all within the legislative sphere and immune from any kind of action under the speech and debate clause.

Furthermore, if we prescient from Doe versus McMillan and the Gravel case, and go back to the case of Dombrowski versus Eastland and examine what was held there in the Court of Appeals and in fact in the Supreme Court of the United States and we will find that the allegation in that case was that the defendants tortuously conspired to subpoena records in an illegal manner from a Louisiana and American activity committee who had records belonging to the plaintiffs in that case.

The Court of Appeals gladly held that the action pursuant to that subpoena insofar as the Senator and the General Counsel of the Committee were concerned were absolutely and totally immune.

The Court of Appeals affirmed -- I mean the Supreme Court affirmed that part of the decision which dealt with the Senator pointing out that there was no evidence in the record to connect him with any of the activities with the exception of the authorization of the subpoena and authorizing its service.

That case is a flat holding that the conduct here is not subject to review but is totally immune under the speech and debate clause.

The other factor which can be drawn from decisions of this Court, the Doe case and Gravel is that even unconstitutional conduct by members of the Congress and reading those cases, their aide, if within the legislative sphere are not subject to review by this Court or any other form, that is the holding of those cases.

Furthermore, presenting from the speech or debate clause and going to the basis of the coordinate branch of government theory namely separation of powers, the doctrine which was discussed in the Doe case along with the speech and debate clause and within the Gravel case points out that the judiciary where there is an immunity such as it exist under the facts of this case may not interfere with the action of Congress.

On this, I should emphasize as this Court did in McGrain versus Daugherty that the absolute necessity for an informed Congress is the ability to subpoena individuals and subpoena documents and that any inhibition on that power is in fact an inhibition on the ability to legislate wisely.

The Court of Appeals pointed out that the document subpoenaed in this case were bank records and that the evidence that was adduced before the District Court, District Court Judge Gasch demonstrated that the -- what the really real concern of the respondents here were in fact loss of contributions.

Thus we had testimony by professional fundraisers and by representatives of this organization, that there were anonymous contribution, there were contributions by cashier's check from brokerage accounts.

There were contributions from corporations that were “fronts” from individuals and in fact there was one example and I don't know whether it was hypothetical or not where the individual testified that the real anonymity was achieved where you had lunch with the donor and took cash at the lunch table.

These were the types of anonymous contributions which the respondents apparently felt would be disclosed should the bank records be made public.

Although I hasten to add the record does not show what the bank records in fact contained with respect to the names of contributors or not.

This brings us to a very interesting part of this case because here we have an attempt to equate the raising of funds, the contributing of money by a non-profit, tax exempt by a ruling organization and as distinguished from any showing that the membership of that organization is connected with or tied to contributions.

Now, the argument has been made and I must emphasize to the Court in the brief filed by respondents, they say that page 41, 42 or 43 that the speech or debate clause was not mentioned by the government who represented the respondents before the Court of Appeal.

And I think if you will look at the brief that was filed on behalf of these respondents in the Court of Appeals, there is a long and extensive section on the speech and debate clause citing Dombrowski, Doe v. McMillan and all of the other cases.

I would not want the Court to think that this issue was one just raised before this Court because it had been raised in the trial court and in fact before this Court.

But we are now in a position where what the respondents are arguing and have argued is that bank records which show potentially the source of contributors if they not be in cash is something which is covered by the First Amendment, freedom of association and I submit to the court that nowhere has this Court or to my knowledge any other court gone so far.

If in fact records of a bank which deal with moneys received by an organization, whether it be the United States Servicemen's Fund or perhaps the Republican or the Democratic Party.

Justice William H. Rehnquist: Mr. Miller, this is really a separate argument than from your speech and debate clause argument, isn't it?

Mr. Herbert J. Miller, Jr.: It is Your Honor.

Justice William H. Rehnquist: Because if you win on the speech and debate clause, it doesn't matter whether these records are protected or not, I presume?

Mr. Herbert J. Miller, Jr.: That's correct, that is correct.

And that's what --

Justice Potter Stewart: Is the separate argument from your separation of powers argument too, isn't it?

There's a third argument?

Mr. Herbert J. Miller, Jr.: Yeah.

Justice Potter Stewart: Thank you.

Justice Byron R. White: Oh, Mr. Miller, I am --

Mr. Herbert J. Miller, Jr.: Yes sir.

Justice Byron R. White: -- not so sure about that that if you went on your speech and debate clause issue, the case is over?

Mr. Herbert J. Miller, Jr.: I believe it is.

Justice Byron R. White: Well, I would have thought that if the, let's just assume that the rights of the organizations are violated by the amendment in the sense -- and then the -- and that in order to get off the hook, you have to plead legislative immunity.

Let's just assume that.

Now, if they send a -- if they send a man out to serve a subpoena or say to serve a search warrant or to make an arrest and the arrest or the search is unconstitutional, I would suppose the fellow they sent to do that could be held liable for damages.

That was Kilbourn against Thompson.

Mr. Herbert J. Miller, Jr.: Under Kilbourn versus Thompson, that is precisely the situation as applied here.

Justice Byron R. White: Well, I would suppose then that if the person who is serving the subpoena is committing an unlawful, unconstitutional act, he can only be held liable for damages but he can be enjoined, he can be enjoined?

Mr. Herbert J. Miller, Jr.: If in fact it is beyond the legislative sphere.

Justice Byron R. White: Well, it's a --

Mr. Herbert J. Miller, Jr.: He can be enjoined.

Justice Byron R. White: Well, its --

Mr. Herbert J. Miller, Jr.: My argument, if the Court please is that it is not.

Justice Byron R. White: I understand, I know, issuing the subpoena you say, stays within the legislative sphere?

Mr. Herbert J. Miller, Jr.: Yes sir.

Justice Byron R. White: But if the subpoena itself is -- if it invades some constitutional rights or some others, that somewhere along the line that at least where it actually impinges on somebody, Kilbourn against Thompson would indicate that the courts can intervene.

The legislators who ordered the unconstitutional act cannot be held in damage -- in liable for damages and they can't be enjoined from issuing another one but they -- but I would suppose the bank can be enjoined from complying?

Mr. Herbert J. Miller, Jr.: I would -- that is a part -- that is a part of the equation if the Court please where eventually you would end up.

Can a third party who controls the records in fact be enjoined but --

Justice Byron R. White: I think in the Gravel -- in Gravel and the other cases expressly said that a Senator or neither a Senator nor his aides can go out and break in to somebody's house to -- illegally in order to gather information for a hearing?

Mr. Herbert J. Miller, Jr.: I remember your language very well.

Justice Byron R. White: Yes, I thought you would.

Justice William H. Rehnquist: But you knew -- you never got to the third party question here did you because the banks were never served?

Mr. Herbert J. Miller, Jr.: The banks were in fact defendants in this suit, they just did not participate in the appeal.

Justice William H. Rehnquist: Well, did you get to the point according to the record where the banks were about to produce the records?

Mr. Herbert J. Miller, Jr.: In one of the House of Representative cases, one or more the bank did in fact produced some of the records.

Justice William H. Rehnquist: In the Senate?

Mr. Herbert J. Miller, Jr.: But those three cases, I want to emphasize to the court really are -- whether a part of this case they're in effect tag along because everyone has treated the Eastland case as the case that governs all of them.

Even though when you get down into the facts you realize there are some different factors with respect to the other three but the District Court and the Court of -- well, the District Court did not deal with the House of Representative cases, they went before other judges and were -- the subpoenas were enjoined because the Court of Appeals had -- have entered a temporary restraining order against the Eastland subpoena.

Justice Byron R. White: Mr. Miller, let me just ask, suppose the Senators and the Congressmen in the committee had never been parties to this suit?

The only party to this suit was the bank and the case, the complaint merely asks, well it asked before a declaratory judgment and an injunction against the bank.

Declaratory judgment that being forced to produce these records would violate the constitutional rights of the organizations and would you say that the bank certainly can't claim legislative immunity?

Mr. Herbert J. Miller, Jr.: Mr. Justice White, --

Justice Byron R. White: Can it?

Mr. Herbert J. Miller, Jr.: Mr. Justice, let me, of course it cannot claim legislative immunity but the case you put it would be fine and if that is -- if that is the way the court will treat the opinion below and leave within the legislative sphere, the Senators and the aides because they were in fact totally immune by their activities under the speech or debate clause then and only then do we address the question, does their stand can an individual whose records are with the bank, file some type of an action against the bank, a motion to quash the subpoena --

Justice Byron R. White: May I ask you --

Mr. Herbert J. Miller, Jr.: And that sir is a -- is not the case that we have before the court today.

Justice Byron R. White: That isn't off the -- it doesn't get off the hook just because the Senators might be immune?

Mr. Herbert J. Miller, Jr.: I would not argue that to the court because --

Justice Byron R. White: Oh, I thought you were a while ago?

Mr. Herbert J. Miller, Jr.: No sir, not at all.

What I'm arguing is that under the speech and debate clause, under the concept of separation and powers, the individual Senators and Congressman and their staff aides and counsel under the facts of this case are totally immune from the conduct alleged here under the speech and debate clause, that is I think a flat -- that is my flat position and is one that is supported by existing case law, recent and past.

Chief Justice Warren E. Burger: What is the impact right today, here and now of the judgment of the Court of Appeals on the Senators?

Mr. Herbert J. Miller, Jr.: They are -- the Court of Appeals reinstate -- they were -- the Senators were dismissed as defendant by the trial court.

The Court of Appeals reinstated them suggest -- and sent the case back for further proceeding suggesting that if some type of relief was necessary against the Senators that perhaps and they picked up a suggestion that a declaratory judgment had been requested, perhaps it would be appropriate to enter a declaratory judgment.

However, there was no requirement as I read it in the Court of Appeals decision that it'd be limited to a declaratory judgment.

Unknown Speaker: Well Mr. Miller, you said I gather that the -- the banks aren't here, they didn't appeal what?

Mr. Herbert J. Miller, Jr.: They did not appeal.

Unknown Speaker: From what?

What was entered against --

Mr. Herbert J. Miller, Jr.: They did -- they took no steps with respect to --

Unknown Speaker: What was the judgment against the bank?

Mr. Herbert J. Miller, Jr.: There was the -- there was no judgment against the bank.

The court denied the motion for injunction against the Senate Committee and the Senators.

They -- Senators appealed.

The Court of Appeals reversed and sent the case back.

The banks did not to my knowledge participate in the Court of Appeals.

Unknown Speaker: Well, so the -- if the -- on remand those are open, whatever remedy they should appeal with regards the banks?

Mr. Herbert J. Miller, Jr.: I do not know the answer to that.

I would -- I'd really don't understand quite where the banks fit in to this in the trial court.

Justice Byron R. White: Oh, are the one thing assured that that the Senators are kept in the case and not dismissed by the Court of Appeals.

Mr. Herbert J. Miller, Jr.: Absolutely.

Justice Byron R. White: And there's a judgment -- there is at least authorized the judgment to be entered against them?

Mr. Herbert J. Miller, Jr.: The Court of Appeal's decision authorized the judgment against the Senators and if I say so myself, it would be the only time to my knowledge that any such type --

Unknown Speaker: But if we should reverse that Mr. Miller, you'll still be in this lawsuit something that will involves the banks?

Mr. Herbert J. Miller, Jr.: The banks are as I understand it are still defendants and could be --

Unknown Speaker: So even if you win this lawsuit is not completely over?

Mr. Herbert J. Miller, Jr.: The -- I assume that they could still proceed with against the bank, just do it to -- the banks are defendants in the lawsuit --

Unknown Speaker: And if they do in that circumstance, your --

Mr. Herbert J. Miller, Jr.: Yeah.

Unknown Speaker: -- victory on the speech and debate clause will not assist the bank statutes.

Mr. Herbert J. Miller, Jr.: I would -- I would think not Your Honor, I would think not.

But let me address myself to the -- quickly to the First Amendment question here because I don't think presenting from the speech and debate clause, I don't think there is a First Amendment question here.

Because if bank records are covered by the First Amendment to the constitution, then this Court is going to face that issue when you get to the question of political contribution by your major political parties.

And I was -- submit if the court please that if you can bar the production of records, of contribution because of associational concepts under the First Amendment, then the reform legislation with respect to campaign contribution is going to be a matter that we're going to have to be separated or going to have to be ruled is not covered, thank you.

Chief Justice Warren E. Burger: Mr. Gutman.

Argument of Jeremiah S. Gutman

Mr. Jeremiah S. Gutman: Mr. Chief Justice, may it please the Court.

The subpoenas in each of these cases were in fact served and the record is very clear that they were in fact served.

The problem as to the banks is jurisdictional.

The whole series of these actions were begone.

The first one was -- is not now before the court, it was an action in the southern district of New York called Liberation News Service which held that New York was the improper venue for bringing an action to get a determination of the validity of such as subpoenas we have involved in this cases.

Therefore, the matter how to come down to the district.

In the prime case here, U.S. Servicemen's Fund, the fund is the New York City bank, Chemical Bank, New York Trust Company which is not present in the District of Columbia.

Because of the exigencies of time that is that the subpoena was served and was returnable so quickly are and the fact that part of the information was in fact delivered by a bank before the depositor had notice of the service of the subpoena, a quick action had to be brought and so an action was immediately brought in the district without even attempting to get jurisdiction in the District of Columbia over the New York bank, was brought on quickly before the trial Court.

A temporary stay was denied and an emergency stay was granted by the Court of Appeals, an issue was joined in that way.

Because the -- in one of the, in two rather, in two of the three house cases, the bank is a District of Columbia bank so there is jurisdiction over the -- over those banks in those cases but that's not so in the prime case, U.S. Servicemen's Fund.

Chemical Bank New York Trust Company is not before the court because it was never properly served.

Justice Byron R. White: So it was only in that case -- the only parties are the congressional?

Mr. Jeremiah S. Gutman: Congressional parties and staff.

Justice Byron R. White: Well that -- I mean, and it include the staff.

Mr. Jeremiah S. Gutman: Yes Your Honor.

Unknown Speaker: So if you lose out here, that's the end of this case?

Mr. Jeremiah S. Gutman: Yes Your Honor.

What the -- what Judge Tuttle for the circuit ordered in his remand to the District Court --

Unknown Speaker: Well, I -- I take it that if you lose on the immunity question, the case is over?

Mr. Jeremiah S. Gutman: We have to win your --

Unknown Speaker: What if -- it's over as against these -- the congressional party?

Mr. Jeremiah S. Gutman: If they are immune from declaratory or injunctive relief, we don't even ask for damages and Mr. Miller has misread our complaint, we didn't ask for damages, we never did.

If there is immunity of the -- either the staff or the Congress members or both as to execution of process with respect to declaration or injuction, we're dead, sure.

Unknown Speaker: Well that -- either reading the First Amendment.

Mr. Jeremiah S. Gutman: Well, right.

I have to reach the First Amendment question to say -- to show that process that I ought to get a declaration or an injunction, right.

But if I -- if these people are immune from judicial review of their actions --

Unknown Speaker: For what?

Mr. Jeremiah S. Gutman: Enforcing the subpoena.

The subpoena --

Unknown Speaker: You mean, you could -- do you think you could get an injunction against the Congress attempting internally to make a defense?

Mr. Jeremiah S. Gutman: No, no, I can't -- I don't believe that this Court could prevent the Congress, the congressional subcommittee or committee from voting to refer for contempt up the line from subcommittee to committee to house etcetera.

But I do think as in Stamler against Willis in Chicago, you could get an injunction against prosecution and that was done in that case by adding the prosecutor.

Now, what Judge Tuttle did here --

Unknown Speaker: Are you against the Senators?

Mr. Jeremiah S. Gutman: In that case the Senators were found not to be necessary parties.

Unknown Speaker: Oh, no?

Justice William H. Rehnquist: Is that from this Court?

Mr. Jeremiah S. Gutman: No.

Justice William H. Rehnquist: I ask you again, would you, are you insisting that you're entitled to a judgement like that against the Senators?

Mr. Jeremiah S. Gutman: At this point, no Your Honor.

At this point, no.

What I think happened here is when Judge Tuttle ordered a remand, what he said was, I'm going to put this congressional people back so that there can be a hearing in the district to fashion whatever relief maybe appropriate depending upon what can be developed as to the procedures and responsibilities of the various staff members of the committee.

And he said, the District Court should be generous in adding whatever parties maybe necessary in order to give relief.

And those are staff people.

And I think complete relief could be granted once we know the facts.

If the court please, with the permission of the court, our arrangement had been that Miss Stearns was going to deal with speech or debate and I was going to deal with First Amendment and the other issues that I see -- in response to Your Honors questions will be getting into her territory.

So, if may, I would like to reserve for her responses in this area.

And, but of course, the First Amendment issue is basic to the whole thing.

If you buy Mr. Miler's argument that bank records of a membership organization are not protected by the Alabama and Louisiana and Florida and so on cases and particularly the Arkansas case, Pollard against Roberts, well then we are finished, we'll never reached speech or debate.

And it seems to us that in contemporary society where it is impossible to function without using the facilities of a bank to clear your funds, whether they are cash funds taken with a luncheon table as Mr. Miller suggest or the cashier's checks, brokerage checks, the direct checks from individuals who are identifiable.

The fact to the matter is that these checks are microfilmed and its these very microfilms which were requested in the very broad subpoena which was served in these cases.

Those bank records in effect are the membership list and in Pollard against Roberts which this Court affirmed, the three-judge court, I'm basing on what Mr. Justice Blackmun said, it was exactly the case, it was a Republican party of Arkansas.

And an attempt was made to subpoena the bank records and at the suit of an officer of the Republican party intervening as the real party at interest just as U.S. Servicemen's Fund here comes in as the real party in interest.

The Court held that indeed the bank records are precisely the equivalent in the NAACP list in the Alabama and Florida cases.

And that they should -- the production thereof was enjoined and I see no distinction here.

And if this kind of thing, this kind of protection is not afforded to bank records, given modern society and the manner in which practically all membership organizations worked, you going to be able to destroy membership organization anonymity and privacy.

Almost every membership organization must maintain not only a bank account in which the depositor's checks are -- and routinely microfilm so that the name and address of the drawer of each item is available.

But they also maintain their membership list upon computerized banks for purposes of sending out their proportional mailing and their dues, notices and whatever else they do.

These things are the functional equivalent of the membership list which before modern mechanics of office management were maintained in a secretary's file drawer in the office of the organization itself.

Justice William H. Rehnquist: Of course there are more than that too aren't they Mr. Gutman, they have got financial information in addition to ways of identifying members?

Mr. Jeremiah S. Gutman: Of course they have.

The problem here is, if the subpoena had been served upon the organization itself and warned as were broad ranging as it is then we got a good Fourth Amendment argument against the subpoena too of course.

The organization would be able to respond and to say these much, we think you're entitled too and these much we think you're not.

If as is alleged in the arguments in the lower courts here and as stressed in the Judge MacKinnon's dissent below, what they're really after is to find out whether there are subversive contributors or foreign governmental contributors to this plaintiff or the respondent here then the question could be addressed in just that way.

Justice William H. Rehnquist: But one thing that struck me about the Court of Appeals' opinion was the absence from it of any of the balancing type of reasoning that you get on the Barenblatt case and other types of that, where you're saying basically what is Congress is trying to do, what are the First Amendment interest quite apart from the speech and debate clause, it seemed to me the Court of Appeals just concluded your clients did have a First Amendment interest therefore that -- it was all over?

Mr. Jeremiah S. Gutman: Yes because the burden is on the government.

There was a trial here, there were two trials, it was a trial on the preliminary injunction and that was remanded with the stay by the Court of Appeals, when that was denied and this Court of Appeals reversed it and sent it back, it was a stay and said hold the hearing on the ultimate --

Justice William H. Rehnquist: You lost both the trials, didn't you?

Mr. Jeremiah S. Gutman: Right, we lost both trials, however, we did make a record in which we put in affirmative, uncontradicted proof as to the First Amendment delicacy and necessity of protecting these records.

At the end of our case, Judge Gasch said to the government attorneys, “do you have any evidence, do you have any witnesses” and they said no and they rest it.

Justice Thurgood Marshall: Mr. Gutman, are these --

Mr. Jeremiah S. Gutman: Yes Your Honor.

Justice Thurgood Marshall: -- any of these organizations, membership corporations under the New York state law?

Mr. Jeremiah S. Gutman: No sir.

The USSF, the prime respondent here is a Delaware membership corporation.

The others I believe are incorporated associations in New York.

Justice Thurgood Marshall: On the same cause you can get it if your membership card is under New York, all you have to do is be a member and you can get the whole membership list?

Mr. Jeremiah S. Gutman: That's quite different Your Honor from a member who is after all entitled under the First Amendment I would guess to know with whom he's associating, that's one thing, it's another thing for the Congress of the United States to get that list.

Justice Thurgood Marshall: Haven't you said, joined it?

Mr. Jeremiah S. Gutman: Sir?

Justice Thurgood Marshall: Could a member of the staff join the organization and then get the membership list?

Mr. Jeremiah S. Gutman: Could he infiltrate it?

Justice Thurgood Marshall: Join.

Is it open to the public or not?

Mr. Jeremiah S. Gutman: Surely.

Unknown Speaker: Mr. Gutman, I'm confused about -- we have four cases here, don't we?

Mr. Jeremiah S. Gutman: Yes.

Unknown Speaker: Now, in any of them has a bank conserved, didn't you mention that the District of Columbia have any?

Mr. Jeremiah S. Gutman: Yes.

In the two -- in two of the three House Committee cases, a bank has been served in the District of Columbia.

Unknown Speaker: And now, we have to reach the First Amendment issue at least in that case or in those two cases?

Mr. Jeremiah S. Gutman: I guess you have to reach the First Amendment issue because if we have to prevail on the First Amendment for you to issue an injunction --

Justice Byron R. White: Oh, I know --

Mr. Jeremiah S. Gutman: -- even against the bank.

Justice Byron R. White: It wouldn't make any difference even if you did prevail on the First Amendment ground if the Senators are immune as respect to the Senators?

Mr. Jeremiah S. Gutman: Correct.

Justice Byron R. White: But if immunity will not dispose of the --

Unknown Speaker: The bank.

Justice Byron R. White: -- issue against the bank then the First Amendment issue is still on the case of --

Mr. Jeremiah S. Gutman: Exactly.

Unknown Speaker: The cases are stay, are they?

Mr. Jeremiah S. Gutman: That's correct though we have --

Unknown Speaker: Yeah, which one is that?

Mr. Jeremiah S. Gutman: I think P --

Unknown Speaker: Though I don't waste the time to --

Mr. Jeremiah S. Gutman: I think its PCPJNPAC, People's Committee of Peace and Justice and National --

Unknown Speaker: That's People's Coalition for Peace and Justice?

Mr. Jeremiah S. Gutman: Yes, People's Commission and National Peace Action.

Unknown Speaker: Do you agree -- you may not agree at all that the cases, the House cases are not moot?

Mr. Jeremiah S. Gutman: I suspect they are and we argued that before for two reasons.

The House is not a continuing body.

The -- these subpoenas opinions were issued in 1970, there had been two congresses since then.

Unknown Speaker: And now the -- now this committee has disbanded or --

Mr. Jeremiah S. Gutman: Now the committee doesn't exist at all.

So it seems to me that indeed the House cases are moot though this Court has on many occasions.

Unknown Speaker: Well, are you asking -- would you suggest they didn't --

Mr. Jeremiah S. Gutman: No I think not Your Honor because the issue is the kind of issue that --

Unknown Speaker: Well, if they're moot?

Mr. Jeremiah S. Gutman: Well --

Unknown Speaker: If they are moot, it's not for you tell us what (Voice Overlap) --

Mr. Jeremiah S. Gutman: I understand that but I can suggest that in those cases where the issue is likely to be repeated and it is of serious dimension and it's the kind of thing that tends to escape review --

Unknown Speaker: Not in the House case?

Mr. Jeremiah S. Gutman: Well, that that committee isn't going to issue any subpoenas anymore, we know that.

Unknown Speaker: Its power or whatever left of those powers, if there's anything, they're now what, were they committee on judiciary?

Mr. Jeremiah S. Gutman: Judiciary I believe yes, but that's not clear because the House isn't really organized yet.

Unknown Speaker: To think about it, a subpoena from the committee on judiciary?

Mr. Jeremiah S. Gutman: Well, they'd have to issue a new subpoena I suppose under a new resolution and I guess we'll be back up here, that's why I think it would not be inappropriate to proceed.

All the parties have approached the matter as though the House cases are identical with the Senate cases and I think they are except for the fact that the House is not a continuing body.

Unknown Speaker: Yes and it is.

Mr. Jeremiah S. Gutman: And the Senate of course is a continuing body so we don't have that issue there.

For all purposes below and as a matter of fact, we all agreed that it wasn't even worth printing the complaints in the House cases, they're not even in our joint appendix because everybody agreed that whatever happened in the Senate case would be binding on the House issues.

So even if --

Unknown Speaker: Well, if you -- should we just -- be just forget the House case?

Mr. Jeremiah S. Gutman: I think that they're tag along cases, no Your Honor.

Unknown Speaker: Oh, I know but let's assume that the only case in which you would've -- let's assume you lose on the immunity case, let's just assume that.

And then the Senate case is over.

Mr. Jeremiah S. Gutman: If indeed there's no way to give us relief in the Senate case then the Senate case is over, I cant see --

Unknown Speaker: I -- now, what about the House cases?

Mr. Jeremiah S. Gutman: That's why I've said that they should not be treated as moot because --

Unknown Speaker: If they are moot, you say but don't treat them if you lose --

Mr. Jeremiah S. Gutman: Under the -- no, I think they shouldn't be treated as moot in any event Your Honor because of the recurrence of the problem, that is not -- what there is make -- whether the committee -- the subpoena issued next week is -- bears the imprimatur over the House Internal Security Committee or its old name, the Un-American Activities Committee or some new name which I give it next week.

The issue will really be the same if they try to get the same kind of issues.

Chief Justice Warren E. Burger: You want us to decide for all time whether bodies of the House of Senate may issue subpoenas against bank records for bank records?

Mr. Jeremiah S. Gutman: No, I think that you don't want that.

The issue portended isn't that broad Mr. Chief Justice.

Chief Justice Warren E. Burger: It sounded like (Voice Overlap) --

Mr. Jeremiah S. Gutman: Oh, what I'm saying is that a subpoena like this of a membership corporation against their membership group addressed to securing from its bank every bit of paper and every record that that bank has concerning that organization that should be declared to be a void subpoena.

Now, that doesn't mean that such a subpoena against bank records can't be narrowly drawn and in a proper case appropriately served.

If they wanted to know put for instance are there any foreign government contributors to your organization, they might have asked for that kind of record.

What I'm saying is that the organization itself has the standing to make the assertion and seek the relief even though it is not the record title owner so to speak of the documents at issue and I believe they have signaled for Ms. Stearns.

Chief Justice Warren E. Burger: Ms. Stearns.

Argument of Nancy Stearns

Ms Nancy Stearns: Mr. Chief Justice, may it please the Court.

This case is actually part of a long line of cases which begins with Marbury versus Madison, moves on to Powell versus McCormack and only this past summer includes United States versus Nixon.

In the most recent of those cases, the Chief Justice speaking for the court reaffirmed that it's emphatically the province and the duty of the judicial department to say what the law is.

Here, we have the same kind of problem.

We have a subcommittee of the Senate of the United States seeking to evade judicial scrutiny for its acts just as the Congress of the -- the House of Representatives in the United States had in Powell and the President of the United States had in United States versus Nixon.

At issue here is a double attempt to evade judicial scrutiny.

Chief Justice Warren E. Burger: Well, whether to pursue that analogy, if it's in -- offered as an analogy, the case you referred to seemed -- seems to me to have held that when the judicial branch needs records to perform its function, the judicial branch will get them no matter where they are?

Now, if the legislative branch needs certain records to perform its function, certainly an argument could be made that the legislative branch shall get them wherever they are?

Ms Nancy Stearns: I would suggest there are at least two distinctions, one of course is the fact that the records here are First Amendment material.

Another however is the subpoena has to be scrutinized.

Is it in fact a constitutional subpoena.

Are its limits appropriate constitutional limits?

Our problem here is the subpoena that was issued has no group, no judicial authority scrutinizing whether or not, in fact that subpoena is constitutional.

Certain --

Chief Justice Warren E. Burger: Was there a power in the District Court or the Court of Appeals to narrow the scope of the subpoena so as in its view to avoid disclosing membership as such?

Ms Nancy Stearns: In this particular case?

Well, we of course argued that there would have been that power but there were two problems.

Number one, the subpoena was not initially served on the real party it interest, the party whose rights were at stake and that was one of the forms of an attempt to evade judicial scrutiny rather the subpoena was served on the bank.

A stake holder who could not be expected to brave the whole question of contempt and raise the constitutional rights of its depositors, that was the first problem.

The second problem of course is amongst the various defenses the committee is raising is the question of the speech and debate clause.

If they were correct, then the court couldn't narrow because the court couldn't look at the subpoena.

We of course argue that the speech or debate clause does not in any way prevent a federal court from looking at a congressional committee, scrutinizing it and considering and determining whether or not its constitutional but both of those attempts were made by the subcommittee to evade judicial scrutiny.

The two reasons that we feel that the speech or debate clause is not appropriate and in fact cannot prohibit the kind of judicial scrutiny that we request and feel is appropriate, first is because the speech and debate clause is inapplicable to actions for declaratory injunctive relief.

Secondly, because the very subject matter at issue are congressional committee subpoena is not the kind of subject matter that is barred from judicial review by that clause.

Justice William H. Rehnquist: What's your authority for the fact that the speech and debate clause doesn't apply to actions for declaratory relief?

Ms Nancy Stearns: Well, let me start by suggesting that there has never been a case that I have seen that has in fact held that and if we look to the most recent opinions of this Court, we see very, very sharp distinction made.

In the opinion of this Court written by Mr. Justice White in the Gravel case, one looks very closely and sees that although damages are prohibited against a House of Representative member or a Senator that the actual actions are not necessarily barred from scrutiny.

Therefore for example, although the writ issued -- excuse me, the authorizing resolution in Kilbourn versus Thompson could not lead to a damage action against the House of Representative's members that voted for it.

The writ itself could in fact be scrutinized.

I think that's a distinction that was drawn quite carefully in the Gravel case.

Justice Byron R. White: Yeah, but in the speech or debate clause cases it seems to me one of the purposes of the clause has been said to be that Senators and Congressmen should not be called into court to even answer the claims within the scope of -- within the scope of the clause?

Ms Nancy Stearns: I think that --

Justice Byron R. White: And that's part of the -- that's just to keep them from being bothered so much?

Ms Nancy Stearns: There are several things that had been said.

One is that they shouldn't be in a position of fearing the burdens of litigation or fearing the possibilities of liability either civil or criminal.

Here we would suggest there is no such fear.

If you talk because of course there is no personal liability.

If you --

Justice Byron R. White: Yeah, (Inaudible) --if you are right, you have to answer the -- you have to hire a lawyer, you have to hire Mr. Miller or somebody and pay him a lot of money and take your time and energies away from your job?

Ms Nancy Stearns: The reality Your Honor is that in this kind of a declaratory and injunctive action, in fact normally the government represents the committee as it did in the two courts below just as the government is involved in defending the constitutionality of that committee's subpoena if there's a criminal contempt case that arises out of it, its no different.

Chief Justice Warren E. Burger: Isn't there another factor here.

You speak of having a First Amendment rights chilled, isn't there perhaps a corollary that if Senators and Congressmen who caused subpoenas to be issued find that District Courts are entering injunctions against them would the threatening over them over the contempt power to be asserted against the Senator or a Congressman that that may chill Senators and Congressmen from the performance of their legislative function?

Ms Nancy Stearns: Your Honor, I would some how doubt that they would even consider violating an order of a court so that the problem of contempt is not a realistic one at least I would certainly hope not but the one thing I'd like to suggest is that if this is a very, very narrow case.

Chief Justice Warren E. Burger: Do you think that --

Ms Nancy Stearns: We --

Chief Justice Warren E. Burger: -- answers the problem that --

Ms Nancy Stearns: Why, I think its part of the answer.

Another part of the answer however is that in reality we're not talking about every congressional committee subpoena, First Amendment or otherwise.

What we're talking about is a very, very narrow range of cases.

Those range -- those cases with the party who's constitutional issues are at stake cannot himself raise them because the subpoena has been served on the third party.

In all other instances and this of course will bring me to my next argument, in all of the other instances, the constitutional questions that underlie the action are able to scrutinized.

They are able to be scrutinized in a criminal contempt situation.

Here however we have this one narrow range.

Justice William H. Rehnquist: But that's because Congress -- that's because Congress then seeks the aid of the courts in order to enforce its subpoena.

Here, you haven't waited till that stage.

You're asking the judiciary to intervene before the congressional process has even begun?

Ms Nancy Stearns: We haven't -- of course we haven't waited Your Honor because we in fact can't wait.

If we had been the parties who's receiving the subpoena, we would in fact have appeared.

We would have in fact raised our constitutional rights.

We may or may not have been held in contempt.

Here however, we did not receive the subpoena and I think that that's probably brings us to the most basic issue in this case for we would argue that this is not really not a speech and debate clause case.

For in fact the constitutionality of subpoenas is scrutinized by the courts all the time in these criminal contempt situations.

This really is a question of separation of powers and when as the Court of Appeals below and other Courts of Appeals in parallel kinds of cases said, "How to avoid unnecessarily infringing on the rights of a coordinate branch of government."

Justice William H. Rehnquist: But no one would contend that the actions of the Justice Department and the executive branch in prosecuting a defendant who's been cited by the Congress for contempt is a part of the congressional function and that's why -- that never arises in those cases.

They're always allowed to challenge the constitutionality.

Ms Nancy Stearns: What we --

Justice William H. Rehnquist: You're in quite a different situation here?

Ms Nancy Stearns: What we would suggest Your Honor is that the situation isn't quite that different at all and that in fact implicit in the subpoena is the obvious possibility that what will follow is the executive branch and the judicial branch becoming involved and using the full weight of the government against the party upon whom the subpoena has been served.

But here is the one example where you can't expect the subpoenaed party to raise all this constitutional rights.

Because the subpoenaed party is an uninterested, disinterested third party here, a bank.

And therefore, in this one very, very narrow range of cases, you must in fact weighing all this matters and particularly weighing the fact that there's a First Amendment right involved permit that party whose constitutional rights are at stake to come in and have the constitutionality of the subpoena scrutinized.

We are not and I repeat asking for any damages against the committee members.

We are not asking for any prosecution of the committee members.

In fact, as Judge Tuttle pointed out below, even an injunction is not necessary, similarly in Powell versus McCormick, this Court concluded that an injunction was not necessary because certainly a coordinate branch of the government would obey, would honor the ruling of this Court.

So, all we're really asking for here is the court to look at this subpoena, its no different, we would suggest than the writ under which Mr. Kilbourn was arrested, it is effectively, exactly the same thing to look at that writ, to look at that subpoena and determine whether or not its constitutional.

And if it is not constitutional, why then declare unconstitutional and a declaratory judgment and we would certainly expect and how --

Justice Thurgood Marshall: Would your argument be the same if there were no staff members involved, its just the Congress committee chairman issued the subpoena or himself --

Ms Nancy Stearns: Well --

Justice Thurgood Marshall: You wouldn't think he was protected?

Ms Nancy Stearns: Frankly prior to Gravel, I would have assumed that there was some sort of difference between staff members --

Justice Thurgood Marshall: Well, since (Voice Overlap) --

Ms Nancy Stearns: But now I would think not.

I would think the Senator is in exactly the same position and the reason I think so --

Justice Thurgood Marshall: You mean when -- you mean it could be --

Ms Nancy Stearns: As the staff member would be.

He --

Justice Thurgood Marshall: You mean he could be questioned?

Ms Nancy Stearns: There is a distinction between questioning him personally, questioning his motivations and issuing a declaratory judgment saying that the subpoena he issued and had authorized and had enforced, had served is unconstitutional.

That the ruling of that -- this Court in that instance would not be questioning his motivations.

Justice Thurgood Marshall: In what basis would it be unconstitutional?

Ms Nancy Stearns: In this instance on the basis of the First Amendment, perhaps the Fourth and other amendments but certainly as Judge Tuttle held under the First Amendment.

I think that the important question and hear words are very, very sensitive.

I think that there is a great difference between saying that we're questioning a Senator and saying that his action, the subpoena he issued is unconstitutional between asking for liability either civil or criminal against a Senator or asking that the subpoena he issued just like the writ in Kilbourn versus Thompson is unconstitutional.

Because there's a big distinction between actual speech and debate and even committee reports as in Doe versus McMillan and the process, the legal process that goes out beyond the halls of the Senate or beyond the halls of the House is no longer an intramural activity carried --

Justice Thurgood Marshall: But this goes to the bank, its all -- as it goes out of the hall, it doesn't go out there, they send a subpoena to the bank and the bank sends them the record?

Ms Nancy Stearns: Well, that's exactly it, it goes beyond the Congress.

It goes into the world at large where it will --

Justice Thurgood Marshall: I suppose -- they suppose -- does the subpoena tell them to bring them?

Ms Nancy Stearns: That's the same thing.

You mean if they just call him on the telephone and say we've got the subpoena would you please come down or --

Justice Thurgood Marshall: Well, you may --

Ms Nancy Stearns: Then its exactly the same kind of thing.

Its bar, its --

Justice Thurgood Marshall: You get an injunction against them in bringing them in?

Ms Nancy Stearns: It would be exactly the same thing.

Presumably what we're getting an injunction -- well, we weren't --

Justice Thurgood Marshall: (Voice Overlap)

Ms Nancy Stearns: -- able to get an injunction against the bank.

Pardon me?

Justice Thurgood Marshall: The injunction says to the bank, bring us -- bring your records in?

Ms Nancy Stearns: We would again ask -- well, if we could serve the bank properly in our situation we couldn't have unless we waited at the door for Chemical Bank to come down and appear.

Chemical Bank was kind enough to notify us so that we could in fact go into court prior to that time but we could not serve Chemical Bank in New York to make them a party in the first place.

Chief Justice Warren E. Burger: You suggested something that indicated a limitation that certain acts had to occur in the Halls of Congress.

If a committee, subcommittee holds a meeting in San Francisco or anywhere else in the United States, is that any less protected --

Ms Nancy Stearns: Oh, certainly not, that's certainly just the same, I mean when I said the Halls of Congress, I mean when Congress or a congressional committee is in session, however, that does bring up the distinction that was made in the Doe versus McMillan case.

For example, if a House member or a Senate member is to read a libelous report on the floor of the House, he is clearly immune.

If he takes that same report and goes to his home territory and reads it again, he is no longer immune.

So there is a distinction of internal and external.

Chief Justice Warren E. Burger: Is that because of the four walls and the ceiling or is that because he is not performing a legislative function?

Ms Nancy Stearns: I think that it's both.

It's a concept of what is an internal function and when it loses its internal nature.

Chief Justice Warren E. Burger: You read that case closely you will see that it relates to the fact that the Congressmen that might be using that as part of a campaign for reelection and that that's the distinction?

Ms Nancy Stearns: That I think is one distinction Your Honor but I think there was also another distinction when the court said that in fact the question of republication could be looked into.

And whether or not the republication in fact went beyond what would normally considered an internal function.

We would therefore request that this Court affirm the opinion of Judge Tuttle below both as to the speech or debate clause in the First Amendment issue.

Thank you.

Chief Justice Warren E. Burger: Mr. Miller, do you -- you have a few minutes left.

Rebuttal of Herbert J. Miller, Jr.

Mr. Herbert J. Miller, Jr.: Very briefly if the Court please.

In the joint appendix in the Court of Appeals case, I found the complaints with the three House of Representative cases and I think if the court will examine those, they will find the damages were in fact requested $500,000.00 against the defendant's pot and the Sanders as well as the bank and additional, in paragraph 28th -- sir?

Justice Thurgood Marshall: (Inaudible)

Mr. Herbert J. Miller, Jr.: Yes sir, one -- yes, the House of Representative cases.

Unknown Speaker: I don't think you'd be that the very satisfied if these cases were moot?

Justice Thurgood Marshall: Well, if the court please, depending on what transpires with respect to the committee, I feel that the court should be aware of the status with respect to what Congress has done and be the fact that damages, I just want to clear the record of, the damages and that's a general request for damages in paragraph of 28 (a) of two of the complaints.

Unknown Speaker: But not in the Senate case?

Justice Thurgood Marshall: Not in the Senate case, no sir.

Unknown Speaker: Well, is there -- is that in the one with the District of Columbia bank in it?

Mr. Herbert J. Miller, Jr.: Yes sir.

The other thing I would like to call the court with respect -- attention with respect to declaratory judgments is that this Court has said that the speech and debate clause protects Congressmen not only from the consequences of litigation results but also from the burden of defending suits, indeed the clause would “be of little value of legislators could be subjected to the cost and inconvenience and distractions of a trial upon the conclusions of the plea.”

I submit --

Chief Justice Warren E. Burger: In one of these cases, was there not at least a strong intimation that a member of a Congress served with a claim directed against an utterance right within the four walls of the Congress to make it clear, could totally ignore the process and if the judge -- any judgment was entered against him would be analogy, isn't there some implication of that kind?

Mr. Herbert J. Miller, Jr.: I don't recall that sir.

I think it is clear that it would in fact would be a totally -- not only because it would bring into total conflict.

The judicial branch which had entered the judgment --

Chief Justice Warren E. Burger: But that was just a literal language of the speech or debate clause that shall not be called to answer would be brought enough to mean he didn't have to answer a complaint in a District Court proceeding?

Mr. Herbert J. Miller, Jr.: I would interpret it that way, on the other hand there had been decisions which suggest that at minimum and or at maximum the Senator or the Congressman is required to at least file a motion to dismiss.

A suggestion is not -- not been a holding.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen, thank you Ms. Stearns.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Dombrowski v. Eastland - Oral Argument

Thu, 23 Aug 2012 18:10:06 +0000

Case:

Dombrowski v. Eastland

Media File:

118_19670220-argument.mp3

Related Transcript:

118_19670220-argument

Transcript:

Argument of Arthur Kinoy

Chief Justice Earl Warren: Number 118, James A. Dombrowski et al., Petitioners, versus James Eastland et al.

Mr. Kinoy.

Mr. Arthur Kinoy: Mr. Chief Justice and may it please the Court.

This case brings back to this Court questions arising out of the factual context of the illegal raids, arrests and seizures of the records and membership lists of our Southern Civil Rights Organization which was the background for this Court's decision in Dombrowski against Pfister in the October '64 term.

The complaint in this case charge the conspiracy between these respondents, Senator James Eastland, Chairman of the Subcommittee on Internal Security of the Senate and J.G. Sourwine, the committee counsel, and several Louisiana state officials including Mr. Pfister, the Chairman of Un-American Activities committee of the Louisiana -- joint committee of the Louisiana Legislature and several Louisiana police officers.

To -- under the cover of Louisiana anti-subversive laws, this is a law struck down as unconstitutional by this Court in Dombrowski, to utilize illegal police raids, arrests and seizures, all in violation of the Fourth Amendment in order of the complaint charges to seize records and lists of names of members and supporters of this civil rights organization which records and lists of names would have been impossible or extremely difficult for these legislative co-conspirators to obtain lawfully under this Court's own decisions in NAACP against Alabama to recently in Gibson against Florida as the Court is of course aware.

Since NAACP against Alabama, the Court has stressed constantly the chilling effect upon constitutional rights of citizen of a demand for list of names of supporters of Southern Negro Movements for Equality.

Now, the complaint charges that the plan and conspiracy was all for the purpose of harassing these plaintiffs and discouraging them and their supporters from asserting and attempting to vindicate the rights of Negro citizens of Louisiana in the Deep South.

The plaintiffs ask for damages and certain injunctive relief.

Justice Abe Fortas: What does the complaint say alleged that the two defendants did?

Mr. Arthur Kinoy: The complaint alleges that they participated fully in this conspiracy.

Justice Abe Fortas: Where is that?

Mr. Arthur Kinoy: That's in the first allegation, the general allegation Mr. Justice Fortas.

Justice Abe Fortas: All I saw in your complaint was sort of a conclusory allegation as distinguished from the allegation about other people with respect to these defendants.

I didn't see anything.

I don't remember anything except the allegation in paragraph 12 which appears on page 4.

Mr. Arthur Kinoy: Now, in addition --

Justice Abe Fortas: That is that they entered into a planned agreement in conspiracy to deprive the plaintiffs of their rights, privileges and immunities.

Mr. Arthur Kinoy: You're right, Justice Fortas.

That's the general allegation but there is a specific allegations also as to these particular respondents in paragraph 20 of the complaint, page 7, and paragraph 22 of the complaint, very specific allegations of activities on the part of these respondents in furthering the conspiracy --

Justice Abe Fortas: I understand that but what I'm saying is that as to the beginning of the conspiracy, the alleged conspiracy, the illegal seizure of documents --

Mr. Arthur Kinoy: Those facts --

Justice Abe Fortas: -- the only allegation that you don't make any specific allegation with respect to that.

Mr. Arthur Kinoy: That's right Justice Fortas.

Those very specific facts of their participation in the initiation of the conspiracy emerged in respondents' own motion for summary judgment, their own affidavits and the testimony of respondents Sourwine on deposition.

Very specific facts emerged as to their participation in what this Court called in the General Motors case, a joint collaboration in the initiation of the original conspiracy.

Those facts are very clear.

Justice Abe Fortas: Well, what was -- what was that as you understand it?

What was their participation in the initiation?

Mr. Arthur Kinoy: Certainly, the facts which emerged from the affidavits and from their own respondent, Sourwine's testimony were these following facts.

In the summer 1963, certain private discussions took place between respondent Sourwine and one of the co-conspirators, Rogers who was the -- one of the counsels to the alleged Louisiana Joint Committee.

During this private correspondence -- private discussions the question of the availability of the records and membership list of the civil rights organization were discussed.

That's July '63, fact one, uncontested by the respondents.

Secondly, the plan not to use the legislative subpoena but to use the police raids instead to seize the records emerged in late August or early September according to their own testimony.

And there's a very interesting affidavit which emerged in the Louisiana branch of this litigation which is an appendix to our brief, an affidavit from one of Louisiana co-conspirators which pinpoints the plan at a meeting in late August in ‘63 which they developed what they called operation cheap talk to see the --

Justice Abe Fortas: Yes, but were these -- were these defendants involved in that --

Mr. Arthur Kinoy: They were not present at that meeting.

The next fact which emerges from the record is after the plan had gelled, another private discussion took place in the middle of September between Sourwine and between Rogers.

This is after the plan had gelled.

A private discussion took place in which they further discussed the civil rights organization's records.

Shortly thereafter, the record shows, shortly thereafter, the plan was put into operation and Sourwine in his own testimony -- I'm sorry, Rogers in his own testimony describes the development of the plan, the seizures then took place shortly thereafter on October 4th.

That --

Justice Abe Fortas: Do you say that if allowed to go to trial, you'll be able to prove that the defendant, Sourwine at that conference participated in a plan to use the police power and search warrants rather than subpoenas?

Mr. Arthur Kinoy: Absolutely, Justice Fortas.

And I would say that the measurements, the yardstick for the type of evidence required to go to trial on this issue and the conspiracy question which the Court discussed last term in General Motors per se.

We are not required, as the government was not required in General Motors to prove explicit agreements in the conspiracy, and as the Court pointed out in the CBS case in Poller against CBS.

Now in the summary judgment question, it is impossible when a conspiracy, where the evidence is securely in the hands of the co-conspirators and hostile witnesses to show explicit agreement.

I would suggest that on these facts, the Court has never had a sharper case in which there was evidence at least requiring ads.

I would like to point out to you Justice Fortas that this -- the Circuit Court here, the District of Columbia found that on this issue of whether or not these respondents were participants in the plan on the conspiracy, that Circuit Court here found that there were disputed issues of facts which would require resolution by trial.

It's very interesting in that respect.

The Circuit Court disagreed with the respondents on their major thrust to the argument.

The main thrust of the argument of the respondents below was they had an alternative position, a) that we had not put forward a serious claim that these respondents as Justice Fortas asked the question were participants in the conspiracy.

That was their main argument.

And summary judgment should be granted.

They had an alternative argument that even if they were participants in the conspiracy, even if they had participated in the illegal police seizures and raids, nevertheless the doctrine of legislative immunity protected them.

It was an alternative argument.

Now, in the court below, in the per curiam opinion what is so interesting here, the posture of the case now before this Court is that the court below rejected their main contention and said, “Were that the only issue in this case?

Then we would be constraint to have great difficulty to find that there were not disputed issues of facts upon involving their participation in the conspiracy which would require exploration by a trial.”

So that the respondents are here before this Court in effect asking this Court to reject the conclusion of the lower court that as to the Court and Justice Fortas asked, there are sufficient disputed issues to require retrial.

Now, if I can give another example Justice Fortas which led the District -- the Circuit Court to the conclusion that there had to be a trial to resolve these issues.

Take the formulations in the General Motors case, not only in respect to the initiation of the conspiracy in respect to its execution.

I would suggest that there is more than adequate evidence here to show the joint collaboration of the co-conspirators to execute it.Now, what does this record show?

It shows the most extraordinary maneuver which took place on October 4th in New Orleans.

In 24 hours, the following things happened.

As a result of the plan, operation cheap talk, as a result of the plan to use police machinery to seize these records, the police came in and as this Court knows in Dombrowski, Pfister where the description of the raids are set forth, grabbed all of the records, everything in the offices of the organization and Mr. Smith is watching the lawyers.

Now, by the police doing --

Justice Potter Stewart: And what -- I didn't hear it.

Mr. Arthur Kinoy: I'm sorry Justice --

Justice Potter Stewart: And something --

Mr. Arthur Kinoy: Oh!

The records of Mr. Smith and Mr. Waltzer, the attorney in the Dombrowski, Pfister who were also --

Justice Potter Stewart: I see.

Mr. Arthur Kinoy: -- they're on that party during this action.

Chief Justice Earl Warren: Mr. -- Mr. Kinoy --

Mr. Arthur Kinoy: Yes Chief Justice?

Chief Justice Earl Warren: Would you address yourself a little more to the --

Mr. Arthur Kinoy: Certainly, right.

Chief Justice Earl Warren: -- of the following.

Mr. Arthur Kinoy: Certainly Your Honor.

Chief Justice Earl Warren: It will be Mr. Robb is pretty much out of position.

Mr. Arthur Kinoy: I -- I apologize.

I apologize.

Now, the immediate effect of the police seizures was to deprive the civil rights organization of any opportunity to defend against a legislative subpoena of these records by doing the conventional thing of coming in to quash the subpoena.

They couldn't do it because the police grabbed it immediately.

But then look what happened.

Instantaneously, the records were then turned over to the Louisiana Committee with the subpoena all prepared for forthwith production of everything seized and then that night, the record shows, and this I think Justice Fortas goes to your question again.

That night, the record shows that Rogers got on the telephone to Sourwine, said, “Alright, we've got the records, come on down to Louisiana.”

The next morning, Sourwine arrives in Louisiana with blank subpoenas signed by the Chairman but completely in blank.

Subpoenas incidentally as the argument will later show, totally unauthorized by the Senate Committee itself and these subpoenas are then copied verbatim from the Louisiana subpoena which in turn was copied verbatim from the warrant of arrest later declared of course totally illegal and violative of the Fourth Amendment, in other words, they wrote out general warrants, warrants of assistance right then and there.

Now --

Justice Hugo L. Black: Who -- who is Rogers then Mr. --

Mr. Arthur Kinoy: I'm sorry.

Rogers was the counsel to the Louisiana Legislative Committee.

I asked the Court to consider what happened in that 24 hours.

On the one hand, the organization and the plaintiffs were deprived of the right, the ability to defend against the legislative subpoena.

At the end of the 24 hours, they were deprived of their opportunity to use the criminal processes to go in and move to quash and vacate the warrant and to ask for a return of the books and records because at the end of the 24 hours from the police they were then in the hands of a legislative committee and that is in effect what happened because incidentally this was all secret.

Nobody knew anything about this.

It all came out two weeks later, when we went into the Louisiana State Court and we moved to vacate the warrants of arrest and this motion was granted.

The grant there was not probable cause for the arrest.

We then got up and we said, alright, we ask the state court to order that the books and records and membership lists be returned to the organization.

At that moment, for the first time, we learned about this 24-hour maneuver.

Because at that moment the state officials got up and said, “We're very sorry, we cannot return these books and records because they are, although physically here in Louisiana, they are in the custody of Senator Eastland, and we cannot return them.”

The state court said, “I'm sorry, there's nothing we can do about it.”

And the books and records were not returned.

Then the third phase of the conspiracy unquoted.

That was the first time anybody, ourselves or the pubic, knew about the activities of these respondents.

It's very significant I think that it was a secret.

Normally, a senate committee when it subpoenaed something, normally, it's in the newspapers, they'll issue a press release, this was very secret.

We didn't know about it until that state court.

So what did we do?

We then went into the Federal District Court that was on Friday, the state decision came down Saturday.

We went into the Federal District Court.

We instituted the first what I would call, the Louisiana branch of this litigation.

We instituted an action identical to this action in the Federal District Court in Louisiana asking for damages, the illegal searches and seizures, and for the return of the books and records injunctive relief.

Saturday, the complaint was filed in the Court.

Sunday morning, we appeared before Federal District Judge then Federal District Judge Ainsworth and ask for a temporary restraining order to issue against the turning over of these records physically because they were still in the State of Louisiana to these respondents.

The judge then asked the Louisiana officials who were in that court, “Can I have your assurances that these records are in Louisiana?”

And they said, “Yes, they're in Baton Rouge.”

Justice Byron R. White: Are these -- these facts are all --

Mr. Arthur Kinoy: All in the record they come out of the testimony of Mr. Sourwine and affidavits and I believe they are uncontested.

At that point, the judge told us, “Send a telegram to the respondents including Senator Eastland.”

A telegram which says, “I'm sending down this TRO for a hearing tomorrow morning, Monday morning.

And the TRO will involve an injunction to restrain turning these records claimed to be illegally seized over to you and I request your presence.”

The telegram went to Senator Eastland that in Sourwine's testimony.

That was Sunday.

At 10 O'clock Sunday night, Senator Eastland, respondent here, got that telegram.

He then got on the telephone to respondent Sourwine and these are Sourwine's words, not ours.

Senator Eastland then told Sourwine, “Get those records out of Louisiana.”

Sourwine protested, “It was hard to do it that night.”

He said, “Well, take them across the state line to Mississippi, to Woodville, Mississippi.”

Sourwine then called one of the Louisiana state officials also a co-defe -- codefendant in the actions and said, “Get those records out of Louisiana.”

At 12 O'clock that night, a van arrived in Baton Rouge, took all of the records, membership lists and everything else out of Louisiana across, I think the Court can take notice that Woodville, Mississippi is across the state boundary, took those records into Woodville, Mississippi.

The next morning we appeared in Federal Judge Ainsworth's courtroom in response to the TRO.

And when the judge called the matter to be heard, the state officials got up and said, “We're very sorry Your Honor, the books and records are no longer in the jurisdiction of this Court.

They are out of the jurisdiction of the Federal District of Louisiana,” where I ask this Court what possible inferences can be drawn from that conduct?

Surely on a motion for summary judgment, we are entitled to draw on inference of a) guilty knowledge on the part of these respondents, that the books and records were illegally seized.

Surely, we are entitled to draw an inference that in addition to that, these respondents were attempting to pursue the objectives of the conspiracy.

I would suggest that short of actual confessions in the record, it would be difficult to conceive of further evidence which would -- would require to withstand a motion for summary judgment.

Now, there has never been an explanation for this extraordinary conduct of that Sunday evening.

One explanation Sourwine suggested on his deposition that the Federal District Court didn't have jurisdiction anyway.

Well, I would suggest to the Court that we don't have to explore very fully that response, perfectly easy for an attorney to go into the Federal District Judge's chambers the next morning and say “Your Honor, you can issue any temporary restraining order but you have no jurisdiction.”

I would suggest that perhaps the real motivations emerged from respondents Sourwine, the admission in the testimony that he did it because he thought and these were his words, he would be in an awkward situation, if the records were not removed.

Now, I suggest to the Court that there was more than -- that this was the reason why the District Court -- the circuit court below rejected out of their hand the respondent's contention that there was not sufficient evidence to go to trial and the issue with their participation of the conspiracy --

Justice John M. Harlan: When you're talking about the circuit court below, you're talking about the District of Columbia.

Mr. Arthur Kinoy: The District of Columbia court below.

Now, the thing that is so interesting if I can suggest to the Court is that in this Court the respondents now shifting their positions.

Once again they are arguing to the Court without explaining that they have to persuade the Court to push aside the conclusions of the circuit below.

Once again, they come here and they argue that summary judgment was proper there was no evidence to go to it.

Chief Justice Earl Warren: We'll do recess now.

Mr. Arthur Kinoy: Right, thank you.

Chief Justice Earl Warren: Mr. Kinoy, you may continue your argument.

Mr. Arthur Kinoy: Thank you, Your Honor.

At the luncheon recess, I had remarked that in this Court, the respondents have seem to shift the main thrust of their position back to in effect urging the Court to reject the conclusion on the factual record of the lower court.

Now, this shift may in certain respects be due to the intervening impact of a series of decisions in the Fifth Circuit in the parallel Louisiana litigation which I would suggest to the Court may throw considerable light on the problems presented in this case.

In that parallel litigation instituted in the Federal District Court in Louisiana, defendant Pfister who is the Chairman of the Un-American Activities Committee of the Louisiana legislature moved for summary judgment on the -- in an identical complaint, on the ground that he was protected by doctrine of legislative immunity.

Judge Ainsworth rejected the motion for summary judgment on the ground that there was a disputed fact as to Pfister's participation in the plan and the raids, that these disputed fact as to its participation in the raids, raised a question as to whether Judge Ainsworth said, his activity, which he is charged in the complaint, was legitimate legislative activity within the meaning of this Court's decision in Tenney-Brandhove.

Then a very curious thing happened.

Pfister interpleaded as third party defendants, all of the members of the Louisiana legislative committee saying that he was responsible, so were they.

They came in before Judge Ainsworth.

They move to for summary judgment also on the ground they were protected by the doctrine of legislative immunity.

Judge Ainsworth granted their motions.

Pfister then appealed that decision to the Fifth Circuit.

And this November, November 1966, the Fifth Circuit in an opinion by Circuit Judge Wisdom, reversed the granting of summary judgment as to the members of the legislative committee in an opinion which I would suggest puts its finger upon the conceptual confusion which I think is present in the Circuit Court's opinion in the District of Columbia in this case.

Judge Wisdom pointed out in Arceneaux against Pfister, we have included for the Court's convenience Judge Wisdom's written opinion as an appendix to our brief.

Judge Wisdom made the following analysis, and he said, “There are disputed issues of facts as to whether these third party defendants had any knowledge of the plan to use police raids, or participated in any way in the planning and initiation and carrying out of this conspiracy.

There is a disputed issue of fact as to that.”

That in turn, Judge Wisdom pointed out, not only precludes a motion for summary judgment as to their participation in the conspiracy but precludes a motion for summary judgment as to their defense of legislative immunity.

Because Judge Wisdom then pointed out that the issue of their participation in the conspiracy undisputed issue raises he said an issue as to whether or not this is legitimate legislative activity within the meaning of this Court's decision in Tenney and to drive this point home, Judge Wisdom italicized in the opinion the word ‘legitimate' in the quotation from the Court's opinion in Tenney.

Accordingly, the Fifth Circuit reversed ordered that these defendants also must stand trial.

Now, what is the situation therefore in the parallel Louisiana litigation?

These cases are on the ready-jury calendar.

To make it perfectly clear that the cases must go to trial, Judge Ainsworth granted a permissive appeal to Pfister from the denial of his motion for summary judgment.

That went to the Fifth Circuit, and the Fifth Circuit dismissed the appeal.

All of the Louisiana officials including the legislative officials will stand trial in Federal District Court in Louisiana, in the cases on the ready-jury calendar.

Now --

Justice Potter Stewart: Well, I just -- I had -- I'm -- perhaps misunderstood.

I thought that the other members of the committee were now out of that case as determined.

Mr. Arthur Kinoy: No.

No Judge Stewart.

No, they are in the case.

Their motion for summary judgment which was granted by the District Court has been reversed by the Fifth Circuit.

Justice Potter Stewart: That's on the trade -- impleading.

There have been impleading (Voice Overlap).

Mr. Arthur Kinoy: Right.

They are impleaded now Justice Stewart.

Justice Potter Stewart: -- by Pfister.

Mr. Arthur Kinoy: Yes.

Justice Potter Stewart: So its Chairman Pfister and the other members of his committee, is that it?

Mr. Arthur Kinoy: Yes.

They are defendants and they will stand trial.

Justice Potter Stewart: And then the -- the -- how do the state police or the state policemen is out, is that it?

Mr. Arthur Kinoy: That's right.

But all the other police officials are in.

Justice Potter Stewart: And who else is in there?

Mr. Arthur Kinoy: The police officials, the staff director of the Louisiana committee, Alexander, and --

Justice Potter Stewart: Mr. Rogers?

Mr. Arthur Kinoy: Mr. Rogers was never joined as a defendant.

Justice Potter Stewart: Never joined.

Mr. Arthur Kinoy: No.

Justice Potter Stewart: And the -- and -- and are -- and are the respondents in this case named as defendants in that case?

Mr. Arthur Kinoy: They were named but they were not served.

Justice Potter Stewart: Never been served.

Mr. Arthur Kinoy: We couldn't serve them until we reached them in the District of Columbia.

Justice Potter Stewart: And the defendants down there in that case have they been named as defendants in this case --

Mr. Arthur Kinoy: Yes, they have.

Justice Potter Stewart: -- but not served?

Mr. Arthur Kinoy: And not served.

Justice Potter Stewart: Uh-hmm.

Mr. Arthur Kinoy: Yes, Your Honor, exactly.

Justice Potter Stewart: And that's a conspiracy case and the complaint is I supposed very similar to --

Mr. Arthur Kinoy: Identical to that case.

Justice Potter Stewart: Alright.

Mr. Arthur Kinoy: Exactly right and they will stand trial there.

Now, I would suggest to the Court that the analysis of Judge Wisdom in the Arceneaux case places a spotlight on the problem before this Court because in essence what the Court faces here is the sharp fact that the conduct charged to these respondents in the participation in the illegal raid and seizure, and violation of the Fourth Amendment cannot under any stretch of the imagination be deemed to be if in fact they participated in this a legitimate legislative activity protected by the scope of this featured debate clause.

Justice Abe Fortas: Mr. Kinoy there -- I beg your pardon sir.

There are two factual situations here and I wonder if you make a distinction between them.

First is the alleged participation in the unlawful search and seizure.

The second is the alleged unlawful improper or whatever, how do you style it, action with respect to the picking of the documents while a proceeding was pending in the Court of Judge Ainsworth.

Now, my question to you is whether for purposes of the legislative immunity problem, you make a distinction between those two.

Mr. Arthur Kinoy: Oh!

Justice Fortas, no, I would make no distinction because for the purposes of the immunity doctrine, neither of the two phases which you described would be sufficient to invoke the doctrine.

The respondents suggest that the latter phase, the use of the unauthorized subpoena in some way is sufficient to invoke the doctrine.

My suggestion to that is that the short answer to that is Kilbourn-Thompson, and every subsequent decision of this Court on the immunity question.

In Kilbourn which this Court in the Gojack decision just last term, so a reason to describe as the leading case on the subject, in Kilbourn, the warrant of arrest did not serve to immunize the sergeant at arms from tort liability for the wrongful arrest.

Similarly here, the subpoenas are insufficient to immunize the respondents from tort liability for the illegal searches and seizures for several reasons.

First, a search and seizure itself, in violation of the Fourth Amendment is as the Court described in the Stanford case, the same term that Dombrowski-Pfister was decided, search and seizure of this nature, Stanford very interesting case because it involved a raid identical to this raid, a raid under the anti-subversive laws of Texas.

And this Court described that raid, the same thing happened, they took all the books and records, everything from the office.

The Court described this raid as a constitutionally impermissible act.

Now, if this kind of a raid on a general warrant, is a constitutionally impermissible act, it is no less or constitutionally impermissible.

It's in the same caliber as the warrant of arrest in Kilbourn which the Court said was not sufficient to immunize the sergeant in Kilbourn-Thompson from a suit for damages.

Now, secondly, we have a situation in which the subpoenas issued in blank were themselves violative of the Fourth Amendment.

Now, that is the problem which the respondents have not coped with because the incredible aspect of the record is that these subpoenas in blank which were filled out that morning in Baton Rouge were copied identically from the state subpoena which was based upon the criminal warrant.

These were stricken and the Court remarked in Dombrowski-Pfister, these were stricken as illegal, violative of the Fourth Amendment.

They were like the warrants in Stanford.

They were what the Court in Stanford called absolutely identical to general warrants, the writs of assistance.

Now it, I would suggest to the Court, is impossible to assert that the use of a general warrant or a writ of assistance is legitimate legislative activity in any sense of the work and as the Court pointed out in Stanford, not since the statement of James Otis in the revolutionary period.

Has any court in this country has any legislative body ever suggested that the use of a general warrant, a writ of assistance could conceivably be considered legitimate legislative activity.

Now, thirdly, the blank subpoenas which incidentally now are the only shred these respondents hold to on adoption of legislative immunity here.

They don't assert as they did below that if they really participated in the illegal searches and seizures that they initiated, planned or helped it along as we discussed earlier this morning, they don't really assert that adoption of legislative immunity could protect that.

That's difficult to assert.

The only shred of holding to the doctrine is the use of this subpoena.

But the subpoena itself not only is illegal, violative of the Fourth Amendment as the writ of assistance but was totally unauthorized by the committee itself.

Now, I suggest to the Court --

Justice Potter Stewart: I suppose that even if that were not -- even if the subpoena were not illegal, it could still be one of the overt acts in an illegal conspiracy, could it not?

Mr. Arthur Kinoy: Absolutely, Your Honor.

Justice Potter Stewart: The overt acts themselves need not be illegal, that would be shown as to -- in the carrying out of an illegal conspiracy, isn't that correct?

Mr. Arthur Kinoy: That's absolutely correct.

Justice Potter Stewart: That's putting to one side of course, the problem of immunity under the speech debate clause.

Mr. Arthur Kinoy: That's right, and I address myself only to this Justice Stewart from the point of view of this featured debate clause problem.

Justice Potter Stewart: Right.

I see.

Mr. Arthur Kinoy: And in that respect, in addition to the illegality of the subpoena under the Fourth Amendment, the respondents here concede in their brief that this subpoena issued in blank and then filled out in Baton Rouge was wholly unauthorized by the Senate Subcommittee.

However, the respondents say this is a minor technical question.

This is a question which can be cured, would later cure.

I would suggest that the suggestion that the unauthorized use of a subpoena in the area of investigation into the rights of citizens under the First Amendment is no minor technical matter.

From the decisions of this Court in Watkins, to the decisions last term in Gojack, it seems clear that the Court has said that as a minimum, as a minimal out of boundary of legislative power in the area of the use of compulsory process to investigate into activities associations of citizen within the framework of the First Amendment as an outer minimal boundary, the Court has directed the concept of the requirements of authorization for such legislative activity.

Now, this is no minor technical question.

In Watkins, this Court said, that that requirements of authorization went to the heart of the preservation of limited constitutional government that at a minimum putting aside the impact of an authorized subpoena upon the exercise of the First Amendment right that at the minimum the exerci -- the use of the requirement of authorization chartered the out of boundaries, the outer boundaries of legislative power.

It would seem therefore that far from being a technical question, the use of a subpoena is so violative of the Fourth Amendment.

It's self-written as a general writ of assistance and itself not authorized by the Senate Subcommittee could never be conceived of as legitimate legislative activity within the meaning of this featured debate clause.

Justice Abe Fortas: Let's see if I correctly recall the facts on which is the last argument is based.

Is it your submission that the subpoena was issued in blank?

Mr. Arthur Kinoy: It was.

It was submitted as such.

Justice Abe Fortas: But why, isn't that the issuance have been authorized by Senator Eastland?

Mr. Arthur Kinoy: Yes, it could.

Justice Abe Fortas: Then Senator Eastland signed it as Chairman of the committee.

Mr. Arthur Kinoy: Yes, the record show --

Justice Abe Fortas: While it was not filled in, is that it?

Mr. Arthur Kinoy: It was not filled in.

Justice Abe Fortas: And then after it was served or taken, then there was a ratification by way of formal resolution of the --

Mr. Arthur Kinoy: About three months later, yes.

Two months later, I believe it was.

Justice Abe Fortas: By resolution of the committee itself?

Mr. Arthur Kinoy: Yes.

Now, that --

Justice Abe Fortas: And your -- your contention is that that -- it doesn't --

Mr. Arthur Kinoy: It doesn't cure.

Justice Abe Fortas: The moment that doesn't say that's --

Mr. Arthur Kinoy: Yes.

Under Gojack and on the other decisions of this Court and I would point out Justice Fortas also that in the examination of the resolution of the Senate committee there is some question even about that which we were not permitted to fully litigate in the District Court.

Senator Keating raised the question about whether or not the ratification actually took place and that sort to take the deposition of Senator Keating but I could not get an adjournment in trying to take that, but putting aside that, in the examination of the resolution itself, very interesting because the resolution does not specifically say that we authorize the issuance of that subpoena or we think that subpoena was properly authorized.

All the resolution says that these documents which we now have here can be put in our record.

And after they put in our record, they should be sent back to New Orleans.

So I would suggest that even on that level there was no direct authorization but I do not rest on that, because I think it -- it doesn't go to the question of why authorization is so critically required in this entire area.

Now, I would suggest then that any effort to invoke the legislative immunity doctrine here runs in the face of this Court's own definitions from Kilbourn to United Stated against Johnson itself as to the limits which must be fenced around the privilege.

I find it helpful for example, the opinion of the English Courts in Stockdale-Hansard which this Court in Kilbourn said represented the basis of the thinking that went into the immunity concept itself, to the clause itself.

And in Stockdale, the Court will recall, the English Court felt that it was essential if the liberties of citizens are to be protected if the double pole which is exercised in the emergence of the immunity, one pole toward the independence and free speech of the legislature, the other pole for the protection of the rights of citizens to exercise fundamental liberties and to be protected by a remedy in the Court of Law against infringement of those liberties.

If those two poles are to be reconciled and they must be, said the Court in Stockdale and this Court in Kilbourn, then we must as the English Court said, we must fence in the privilege by the law.

That is our responsibility.

We must fence in the privilege by the law.

And the Court did that in Kilbourn.

And the Court said that the illegal act of arrest does not protect the sergeant of arms and a money judgment will lie and was later, actually collected against the sergeant of arms.

Secondly, the Court, Justice Miller said in Kilbourn, if the members of the Congress themselves had participated in the arrest in anyway, he says, they would be liable as the sergeant of arms.

They are protected for what?

Only the pure legislative act, the passage of the resolution authorized, that alone says the Justice in Kilbourn would protect them.

Justice Abe Fortas: But you're not arguing are you Mr. Kinoy that this -- that if the subpoena, if a subpoena is issued from the proper authorization and if it is defective for some reason other than authorization that legislative immunity would not apply.

Mr. Arthur Kinoy: No.

I'm not arguing that Justice Fortas and I don't have to argue that or reach that in this situation, not at all.

No.

I think -- I would suggest that the definition in Tenney based upon the definition in Kilbourn is sufficient here that where the act is not an act traditionally within the power of the legislative -- legitimate legislative activity where it is as in Kilbourn, an unlawful illegal arrest where it is as here in Dombrowski, Eastland, an unlawful search or seizure.

Then clearly that is the line, that is where the law offenses in the immunity.

And at that point, the courts of law are obligated to provide the remedy to protect the citizen.

And at that point the legislative immunity is found at all.

Now, some suggestions has been made that if --

Justice Byron R. White: Mr. Kinoy, would your argument be the same if there had been no involvement of state officials at all that the -- that the Chairman had signed a blank subpoena and Sourwine had taken the subpoena and -- with his own investigators made the seizure here?

Mr. Arthur Kinoy: The involvement with the state officials, Justice White, goes to the availability of the civil rights act course of action in this case.

Justice Byron R. White: I understand that.So -- so -- but as far as the illegality --

Mr. Arthur Kinoy: Yes, I would --

Justice Byron R. White: -- of the seizure is concerned --

Mr. Arthur Kinoy: I would make the same argument, yes.

I would have it --

Justice Byron R. White: So that the -- so that the state officials in the end of it is that isn't what makes it -- makes it illegal.

Mr. Arthur Kinoy: That's correct.

That's correct Justice White.

Justice Byron R. White: This is -- this is just some way to get under the Civil Rights Act.

Mr. Arthur Kinoy: Remedy is offered for on the color of state law and that is available, I would suggest, in this situation.

But as far as the basic thrust of the illegality is concerned, the illegality stands whether or not, there was a participation by the state officials.

Yes, I would suggest that Justice White.

Now, there has been a suggestion made by the respondents that perhaps the doctrine of this Court in bar, the official immunity doctrine might conceivably be available perhaps to respondent Sourwine.

I don't want to spend very much time on that except to point out that from, that the doctrine and concept which this Court developed in bar, a judicially constructed doctrine grounded on the principles and concepts of the common law, points an answer to this problem in the common law because in the classic case involving remedies for searches and seizures, Entick against Carrington, the English Court not only found for the plaintiff on an action but permitted damages against his majesty, Secretary of State, an order that damages issue.

Why?

Because the English Court in Entick said in Carrington that the interest in preserving the fundamental liberties of the citizen, the subject in that case is such a deep-seated requirement that a remedy and damages far from interfering with the operations of government is essential if government is going to what?

Is going to view two constitutional lines.

And I would point out to the Court that in recent decisions of the Circuit Courts, three of the circuits have refused to apply any doctrine or concept of immunity to the charge of participation in illegal searches and seizures.

This is too fundamental over a question.

It goes to the heart of the functioning of government itself within the framework of constitutional law.

Now, I would suggest to the Court that as in Dombrowski-Pfister, before the Court two terms ago.

The issues here transcend the immediate question here presented as compelling as they are for relief.

And as in Dombrowski-Pfister the problem is here posed as to whether this Court will say that under this system of ordered law, a remedy exists for the protection of fundamental liberties of the people and that this remedy will be available and that lawless activity of individuals regardless of their station in society are subject to the processes of the law and that the law stands ready to provide this relief.

I would suggest to the Court that within this concept, the judgment below should be reversed and these respondents should be required to stand trial on the charges presented in this complaint.

Thank you.

Justice John M. Harlan: Do you think a immunity -- ruling on the immunity section is possibly without a full development of the fact?

Mr. Arthur Kinoy: I don't think a definitive ruling is possible Justice Harlan without a development of fact and I think that that's exactly what Justice Wis -- Judge Wisdom was getting at.

Justice John M. Harlan: That's what I was referring.

Mr. Arthur Kinoy: That's' right.

I think that a full development of facts is required here and that therefore this should be sent back for a trial on the facts.

Thank you.

Chief Justice Earl Warren: Mr. Robb.

Argument of Roger Robb

Mr. Roger Robb: Mr. Chief Justice -- Mr. Chief Justice and may it please the Court.

The respondents stand on two propositions.

First, when we say that the petitioners claim from damages here is based on the allegation that the respondents joined with state authorities in a conspiracy to deprive the petitioners of their civil rights by means of unlawful arrest, search -- searches and seizures.

This is the fundamental essential allegation of the complaint.

We submit as we did in the District Court and that Court agreed with us that the uncontradicted proof adduced on the motion for summary judgment demonstrated beyond any doubt that the respondents had participated in no such conspiracy, and accordingly that there was no genuine issue of facts of trial, now, putting the matter differently that in the event of a trial that these respondents would have been entitled to a directed verdict.

Now second, in our view the Court need not reach the issue of legislative immunity.

However, if the Court deemed unnecessary to reach that issue, we submit that that doctrine in this case precludes liability what damages is.

The only act charged against these respondents in connection with this alleged conspiracy is the issuance of the subpoenas and the transportation of the records to Washington pursuant to the subpoenas.

These acts, we say, were well within the scope of the proper legislative duties of these respondents and with that well protected.

Justice Potter Stewart: That, even if that's true, if you're wrong about your -- on your first point then if they were as co-conspirators, they were co-conspirators in the -- in the -- in the unlawful seizure out in Louisiana then they are -- then they would still be liable even if they would have immunity of -- with respect to the issuance of the subpoena, wouldn't that be right?

Mr. Roger Robb: Yes, but I think that had to be something shown besides the issuance of the subpoena then there's nothing, nothing whatever.

Nothing should --

Justice Potter Stewart: Because there hasn't been a trial yet.

Mr. Roger Robb: I beg -- I beg your pardon?

Justice Potter Stewart: There hasn't been a trial yet.

Mr. Roger Robb: No sir.

But --

Justice Potter Stewart: The complaint does alleged that the -- that they were members of this conspiracy.

Mr. Roger Robb: It alleges that -– yes, sir.

Justice Potter Stewart: To -- to violate the Fourth Amendment rights and perhaps the First Amendment rights of the -- of the petitioners.

Mr. Roger Robb: That is correct on a motion for summary judgment, the allegation of the complaint is not enough, there must be something more.

Justice Potter Stewart: I understand that.

Mr. Roger Robb: Now --

Justice Abe Fortas: Mr. Robb, Excuse me, is that -- that certain -- that certain decision final?

There's been no petition search --

Mr. Roger Robb: I don't know about that sir.

I might say, at this point, I intended to say something about that.

Mr. Kinoy has relied upon that.

And the ground of that decision was as I read it, that, and this is page 134 of the appen -- of the brief of the petitioners.

The ground of that decision was and Mr. Pfister made a statement to the press in which he announced that all the members of the committee had participated in this plan of raid.

And the Court said and I quote, “If Pfister did make such statement the truth or falsity of the statement would bear on the accuracy of the committee members affidavits that they did not authorize the raids and in fact knew nothing of them before they would carry it out”.

Now, in that case we have affidavits that our respondents didn't know anything about these raids and had nothing to do with them.

And there was no countervailing evidence whatever.

So our case differs from the Pfister case.

Now, at the outset, I might say also that it is not true, it is not a fact that our Court of Appeals held or found or concluded that there were a disputed issues of fact with respect to our client's participation in this conspiracy.

All the Court said was they might have deal with that question but they did not reach it in view of their other view of the case.

Now, in support of our motion for summary judgment, we found out affidavits from all of the alleged conspirators, all the people who had knowledge of the facts.

And the District Court also had before it on this motion, Mr. Sourwine's deposition which had been taken by the petitioners.

The affidavits and the deposition on flatly and completely negated the allegation that the respondents had joined in this conspiracy.

They demonstrated conclusively.

But there was no such conservative action.

The leader Senator Eastland and Mr. Sourwine had anything or whatever to do with the arrest of Dombrowski or the searches and seizures.

That prior to the date when the raids were made, October 4, both Senator Eastland and Mr. Sourwine understood and believe only that the state authorities might subpoena the records of SCEF and they were not told and did not know that action by way of arrest warrants was even contemplated.

But I say this was established by the affidavits of all of the persons having knowledge of the fact -- facts.

Now, I might summarize the facts briefly because I think the statement by my friend, might perhaps be somewhat out of focus.

The fact shown by the record were the 1955, the Senate Internal Security Subcommittee investigated SCEF and probably to report on SCEF and his apparent or -- apparent organization which was called the Southern Conference on Human Welfare.

These reports --

Justice Abe Fortas: Mr. Robb, excuse me but --

Mr. Roger Robb: I beg your pardon.

Justice Abe Fortas: Page 5 of the brief here --

Mr. Roger Robb: Which brief is Your Honor speaking of?

Justice Abe Fortas: I'm talking about the brief signed by the Solicitor General and you.

Mr. Roger Robb: Yes.

Yes sir.

Justice Abe Fortas: So you've got the Southern Conference for Human Welfare, a Communist front organization, should you call a Communist front organization, is that ever on the Attorney General's list?

Mr. Roger Robb: I don't know sir.

But the we are quoting here from the subcommittee of report --

Justice Abe Fortas: Who do you work?

Mr. Roger Robb: We are -- I'm referring here after investigation of SCEF, the subcommittee reported that SCEF had been established as an adjunct of the Southern Conference for Human Welfare.

And that was based upon the testimony of (Inaudible).

Justice Abe Fortas: And your brief is not suggesting that it is a Communist front organization then.

Mr. Roger Robb: Well, all I was saying is that this was in the report of the subcommittee which led Mr. Rogers when his committee began to investigate the same org -- same organization to get in touch with Mr. Sourwine.

This is merely by way of showing why Mr. Rogers went to Sourwine.

Now, in 1962, the state committee of Mr. Rogers, his committee, called this joint committee on Un-American Activities, started to investigate SCEF and knowing of the previous Senate investigation in 1954, in the Senate report, Rogers asked Mr. Sourwine for any information that he might properly give about SCEF.

And Sourwine did give Mr. Rogers certain information from the public records of his committee which was proper.

At this time Mr. Rogers told Mr. Sourwine that his committee might possibly subpoena the records of SCEF and if he did so and he found anything that was of interest to Mr. Sourwine's committee that he would let Mr. Sourwine know, this I think is an orthodox exchange of information between committees and investigators.

Now there was no discussion in that specific records, membership records or otherwise.

This is categorically stated in the record.

Later about the middle of September ‘63, Mr. Rogers telephoned to Mr. Sourwine and asked him, in the event that the state committee did subpoena the records of SCEF could Mr. Sourwine and Mr. Mendel who is an expert on the stuff of the committee, come down and help to evaluate them.

Mr. Sourwine took the matter up with Senator Eastland who told him that he and Mr. Mendel might go down if and only if it developed that the record subpoenaed related to matters within the scope of his committee's powers and jurisdiction and authority.

That is the Communist or the Communist front activities and the sound that the record shows emphasized that the subcommittee had no interest whatever in material having to do with civil rights or racial matters.

Now, nothing more on this matter at SCEF was heard from Mr. Rogers until October the 4th when he telephoned to Mr. Sourwine and told him the state committee had the SCEF material in his possession under subpoena and the material would be of great interest to Mr. Sourwine's committee.

Now the record shows that after his talk with Mr. Sourwine in September, mid-September, Mr. Rogers and his committee had concluded on the basis of their investigation that SCEF was in violation of the state statute, and therefore that they would proceed by way of arrest and search warrants rather than by way of subpoena.

Now, the record shows conclusive that neither Senator Eastland nor Mr. Sourwine knew anything of this decision.

They weren't told about it, they weren't consulted about it and they had nothing more having to do with the resulting raids and arrest.

There isn't a scintilla of evidence in the record to the contrary.

In fact, Mr. Sourwine and Senator Eastland believed that at all times, prior to October 4, 1963, that if the state committee acquired the SCEF records, it would be done by way of subpoenas.

And the first intermission they had to the contrary came in Mr. Rogers call on October 4.

Now, my friend referred to an affidavit which is printed as an appendix to his brief from a deputy counsel or investigator of the state committee in which he contend shows that this plan to seize the records by arrest warrants was made in August.

In the first place, that affidavit had dated over a year after the judgment in this case was entered.

It does not apply in the record in this case.

In the second place, I think if you look at the affidavit, you'll see that it does not -- it does not necessarily carry the implication which my friend contends that it does.

All it says is that Mr. Rogers is going to talk to the state police and his own affidavit filed by us shows that he wasn't in touched with the state police and had examined their files prior to October.

Now, as I said, Mr. Rogers asked Mr. Sourwine and Mr. Mandel to come down and they did go down.

The next day, October 5, they looked over the material, thought it was of interest to their committee and thought it came within the scope of their committee's authority and therefore Mr. Sourwine calls Senator Eastland, told him this and Senator Eastland authorized him to fill out and serve the subpoena or subpoenas on the state authorities calling upon them to produce these records in Washington, October 29.

Chief Justice Earl Warren: The rules of the committee give -- give that power to -- to a man on the position of Mr. Sourwine?

Mr. Roger Robb: The -- the rules of the committee, may it please the Chief Justice, provided at that time that subpoenas could be issued by the Chairman and the practice of the committee at all times up until then was that the Chairman decided when the subpoena should be issued.

These subpoenas were issued in accordance with the practice of the committee at that time.

This was October the 5th.

On December the 30th of the same year, our Court of Appeals in the Shelton case held that although the Chairman might issue these subpoenas, they had to be authorized by the full committee but this of course was after these subpoenas had been issued and served under the issuance held at the time they were issued were is in full accord with the practice of the committee at that time.

And our position gently jumping ahead of that is that this was well within the scope of the legislative authority of the committee.

Chief Justice Earl Warren: Even -- even though the -- the subpoenas were in blank directed to no one?

Mr. Roger Robb: Yes sir.

Chief Justice Earl Warren: And referred to no particular records.

Mr. Roger Robb: They was -- they were filled in at -- filled in by Mr. Sourwine prior to service of course.

They were --

Chief Justice Earl Warren: Yes but -- but after-- after they had been signed by the Chairman --

Mr. Roger Robb: Yes sir.

Chief Justice Earl Warren: Chairman.

Mr. Roger Robb: Yes sir.

Chief Justice Earl Warren: In other words, it was a blank --

Mr. Roger Robb: Yes sir.

Chief Justice Earl Warren: A blank subpoena --

Mr. Roger Robb: Yes sir.

Chief Justice Earl Warren: -- that he could carry around with him and determine when and where and on whom he should serve it.

Mr. Roger Robb: After he got the authority of the Chairman, yes sir.

Chief Justice Earl Warren: Yes.

A general authority to -- to fill it in and serve it on anybody he want.

Mr. Roger Robb: After he got the Chairman's authority, yes sir.

Chief Justice Earl Warren: Yes, but that is the authority that the government gave him.

Mr. Roger Robb: Yes sir, that is correct.

Justice Byron R. White: Well Mr. -- did he speak to Chairman -- Chairman Eastland about securing these specific records?

Mr. Roger Robb: Yes sir.

Justice Byron R. White: And -- and the Chairman authorized to get this particular records.

Mr. Roger Robb: Yes.

He telephoned --

Justice Byron R. White: It wasn't any rule of the authority to him, this -- it will get any records you want him --

Mr. Roger Robb: Oh!

No.

Oh!

No, not at all.

Justice Byron R. White: And the -- the authorizations take this subpoena and go get these records except that they could not describe the specific records.

Mr. Roger Robb: Oh!

They did describe the specific --

Justice Byron R. White: I know, that -- but they were filled in last -- it was filled in later.

Mr. Roger Robb: That's correct.

Justice Byron R. White: When the Chairman signed it they decided they could not describe it.

Mr. Roger Robb: That's correct.

What happened, he test -- Mr. Sourwine testified on the deposition that the committee had filed a blank subpoenas signed by the Chairman.

And that these were filled out from time to time when they arose, he took some of these with him to -- to the Baton Rouge where the records where.

He examined the records preliminarily.

He concluded that they were of interest to the committee and did come within the -- the scope of their authority.

He telephoned Senator Eastland, told him what the records were in general and Senator Eastland authorized him then to fill out and serve these subpoenas.

Now, again getting ahead of it, our position is that even though these subpoenas might technically have been invalid and my -- and even though this might have been a defense against a charge of contempt, it does not necessarily follow that the service of these subpoenas subjects these respondents to damages.

The case is cited by our friend, Gojack case and other cases involved charges of contempt of criminal charges.

And this Court has said several times that the fact that a subpoena might be invalid in the contracts of a criminal prosecution and justify a refusal or failure to respond, that fact did not necessarily mean that the persons who issued the subpoena must respond in damages.

Now, they might say after the service of these subpoenas on October 5, Mr. Sourwine designated General Burbank, the Superintendent of State Police to be -- to be the custodian of the records attending their tracked petition to Washington.

Mr. Mandel the record shows stayed behind to examine the records at some length.

I might say all these records were returned to the petitioners in February 1965.

Those events --

Justice Potter Stewart: In the meantime, copies had been made up, aren't they?

Mr. Roger Robb: Yes sir,

Justice Potter Stewart: And those copies are now where?

Mr. Roger Robb: They're in the possession of the Senate committee and not these respondents.

Justice Potter Stewart: Just one set of copies or several sets made?

Mr. Roger Robb: Frankly, I don't know Your Honor.

Now --

Justice Potter Stewart: The record doesn't show.

The record shows that one set of copies was made at least.

Mr. Roger Robb: Oh!

I think so.

The resolution which is in the record and it's printed at -- at page 36 of the record suggests that copies would be made that all of the original records obtained under the subpoena before the start with the permanent records of the subcommittee in (Inaudible) so-called the status.

Justice John M. Harlan: Has any have been published, printed?

Mr. Roger Robb: No sir.

Now, as was pointed out by the Court here.

On the 14th of November, the subcommittee voted in effect to ratify the actions of Senator Eastland and to make all these records as far as the committee thought that we don't necessarily argue that this was an ex post facto authorization of the subpoena.

But we do argue that it certainly demonstrated that in issuing and serving this subpoena, these respondents were acting within the scope of the scope of their legislative authority.

Now, coming for a moment to the matter of the removal of this material from the State of Louisiana about which my friend made not a vigorous complaint.

As explained by Mr. Sourwine, his deposition and this is appeared at the records -- in the record at page 57.

It was felt that the documents were in the possession of the United States Senate and if there were to be litigation about them, only Mr. Sourwine and Senator Eastland and the Senate should be involved and not Colonel Burbank who as Mr. Sourwine says wore two hats.

One as head of the state police and one as custodian for us and he might become involved in an awkward situation.

Secondly --

Justice Abe Fortas: But was there any offer to Judge Ainsworth to deliver the records of this said order?

In another words, as I understand the facts here, the records were -- in Louisiana in the possession, physical possession of the state officials.

Mr. Roger Robb: That's right.

Justice Abe Fortas: And there was a proceeding on the way of Judge Ainsworth's courtroom.

And he had issued an order noticing a hearing on a temporary restraining order for Monday.

He issued the order on Friday presumably, Friday?

And then some time in that weekend, the documents were taken away in a truck over to --

Mr. Roger Robb: That's correct.

Justice Abe Fortas: -- across the state line and outside of the jurisdiction of Judge Ainsworth's court.

Now, what I'm asking you is whether if the reason for this kind of -- or hopefully unusual action, the reason for this unusual action was to clarify the issues or avoid personal embarrassment of some other general purpose, whether any statement was ever made to Judge Ainsworth that the documents would be returned to his jurisdiction and made available to be disposed of as he might order.

Mr. Roger Robb: It would never a statement made by Senator Eastland to Mr. Sourwine.

Now, I might point out to the Court that this telegram to which Mr. Kinoy referred and which is printed at page 54 of the record was not from Judge Ainsworth.

It was from counsel for the petitioners and Mr. Brennan.

And the telegram read Federal Judge Robert Ainsworth has requested your presence in his office 9:30 AM, October 28 to discuss an injunction and joining, turning over SCEF and Smith and Waltzer records to Senator Eastland.

That was all Senator Eastland knew about it.

He'd never been served by any process.

He was never been notified by the Court and it was signed by Mr. Brennan.

And Mr. Sour --

Justice Potter Stewart: It was done at the request or certainly with the knowledge of Judge Ainsworth though was it not?

Mr. Roger Robb: That, I don't know sir.

Justice Potter Stewart: I thought --

Mr. Roger Robb: I assume --

Justice Potter Stewart: I thought the record shows that?

Mr. Roger Robb: -- that's not being thought so.

Justice Potter Stewart: I thought the record shows that or at least the counsel represented that that Judge Ainsworth has to get in touch with the Senator.

You say -- you say the record doesn't show that?

Mr. Roger Robb: I don't find it in -- in the record.Perhaps my friend can point it out if it's there.

Rebuttal of Arthur Kinoy

Mr. Arthur Kinoy: 57.

Justice Potter Stewart: And going back a bit.

I can un – I understand this testimony on page 57, I guess it's Mr. Sourwine?

Rebuttal of Roger Robb

Mr. Roger Robb: Yes sir.

I might say there's a mistake in that transcript.

I -- I hope Your Honor has the correct copy of it, the last question and answer on page 57.

Question, is it correct if the purpose of the removal of the documents must to put them beyond the jurisdiction of the Federal Judge in New Orleans.

The answer in my print is, this is correct, it should be, this is not correct.

Justice Potter Stewart: It should be this is not correct.

I think we have that.

There's another change in the --

Mr. Roger Robb: Yes.

Justice Potter Stewart: -- next sentence I think.

The United --

Mr. Roger Robb: Yes, the federal judge whatever had no jurisdiction under any circumstances because I might point out that certainly the records --

Justice Potter Stewart: Senate.

Mr. Roger Robb: When they were brought to the District of Columbia as our friends have demonstrated were within the jurisdiction of the United State District Court for this district and I assume that that was known to Senator Eastland and Mr. Sourwine.

Justice Potter Stewart: Well, at the time though of this testimony on page 57, the records were across the river or whatever boundary is that can cross in -- in Mississippi --

Mr. Roger Robb: Yes, across the state line, yes.

Justice Potter Stewart: Across the state line of Mississippi.

And the explanation by Mr. Sourwine is that -- would -- would be relevant to why he, Mr. Sourwine, took them into his possession but hardly relevant that's why it took him across the state line, wouldn't that be it?

Mr. Roger Robb: Well, he said that he -- he said frankly, that was in his mind that if anybody who is going to get sued it was going to be he and Senator -- him and Senator --

Justice Potter Stewart: Well, they're going to fix it so he could then very well be sued on these records and in that Court.

Mr. Roger Robb: Well, he could be sued here of course.

Justice Potter Stewart: So he's -- well, the result is he is sued here.

Mr. Roger Robb: Yes.

Yes sir.

He is sued here.

Justice Potter Stewart: So I guess he got his wish.

Mr. Roger Robb: Now, I might say yes, that is -- that's one thing we're sure of.

I might say also, may it please Your Honor, that we submit that this action which occurred three weeks after the arrest and the search and the seizures which are the gravamen of the complaint which are the gist to that action.

These -- these are action in moving the records across the state line.

It seems to us it's hardly enough to cast any substantial doubt on the uncontradicted proof that Senator Eastland and Mr. Sourwine had nothing whatever to do with the previous seizure of the records.

This is not a lawsuit for moving records across the state line.

It's a lawsuit for conspiring to bring about unlawful searches and seizures.

Justice Abe Fortas: I -- I tried to pursue that within these questions very well with Mr. Kinoy.

As I understand, his answers to my questions they are asserting this course of action for two independent acts and that is to say for the unlawful taking of the record by the Senate committee or Senator Eastland and Mr. Sourwine.

They are asserting that that was unlawful that gives rise to a cross reduction --

Mr. Roger Robb: I know.

Justice Abe Fortas: -- independently of the other, if I correctly understood you

Mr. Roger Robb: As I understand their complaint, Your Honor, their complaint is that -- that they alleged that this taking of the records across the state line was a part of the conspiracy.

Not that it was an independent substantive cause of action.

It was all part of the conspiracy.

Justice Abe Fortas: I can stand that but he says that, “Let's suppose that the conspiracy were only to -- for the Mr. Sourwine and Senator Eastland to take the records after they have been unlawfully seized by the Louisiana officers.

As I understood Mr. Kinoy's response to my questions, I maybe wrong.

He says that that would give them a right to damages and foreign injunction.

Mr. Roger Robb: Well, that this is --

Justice Abe Fortas: That's his contention as I understand --

Mr. Roger Robb: If this is his theory, it's a new theory that I never heard before because along this brief --

Justice Abe Fortas: I -- I may be wrong about it but I assume -- that's why I ask him the question and that's what I understood his answer.

Mr. Roger Robb: Now, I might add that the -- the affidavits of Mr. Sourwine's deposition were not mere naked denials as our friend suggest but they were detailed in circumstantial statements by everybody who had knowledge of the facts of reciting exactly of what the relevant actions and statements of those people had been.

And the evidence produced by our respondents was uncontradicted.

The petitioners do not traverse a single fact that we relied upon except for taking Mr. Sourwine's deposition, they made no attempt to use the federal discovery procedure.

They did not impeach any of our witnesses or attempt to do so.

And I might point out that pursuant to the Rule 9h of the District Court, our respondents filed with their motion for summary judgment, the statement of the material facts as to which they contended, there was no issue.

Their statement is in the record beginning at page 83 and recites in summary form the facts that I have mentioned here today.

Paragraph 43 of that statement recites that neither Senator Eastland nor Mr. Sourwine had anything whatsoever to do with the acquisition of the SCEF material by the joint committee or with the preparation, issuance or execution of the arrest and search warrants where under the joint committee obtained the material to SCEF.

Now, Rule 9h provides that the Court on a motion for summary judgment may assume that the facts recited in such a statement are admitted unless they are controverted by opposing statements and the petitioners filed no such opposing statement.

In short, we submit and we have shown -- we showed by uncontradicted proof that the conspiracy upon which this suit is rested, never existed that the petitioners introduced no evidence casting a doubt upon the showing we made nor have they demonstrated any possibility that in the event of a trial, they could produce such evidence.

Justice Abe Fortas: I suppose that what they're really saying --

Mr. Roger Robb: I beg your pardon?

Justice Abe Fortas: What they're really saying may be, if I understand Mr. Kinoy, that they're entitled to go to a jury to see whether the jury will infer from the various meetings that were held that such a conspiracy or understanding did exist.

That is to say that apart from any specific testimony that Mr. Sourwine and the Louisiana officials agreed that they would undertake this, they did have meetings and that they're entitled to go to the jury and see whether the jury will infer from the seeking effect of the meetings and the sequence of events that there was this conspiracy.

What do you say to that?

Mr. Roger Robb: That's what they say, Your Honor.

But I submit that you're not entitled to go to a jury on a mere gossamer -- gossamer web of suspicion which we've done an amount to prove it all.

There had been a number of cases in the federal courts which we have cited in our brief on that point that one of the leading cases as taken by Judge Learned Hand which he said about what I've just said although in better language.

That's our answer.

Now, returning to the second branch of our argument and to be a matter of legislative immunity as we have pointed out, the only acts charged against the respondents in connection with this alleged conspiracy with the issuance of the subpoenas for the SCEF records and moving of the records to Washington and this conduct, we submit, was well within the scope of the official duties of the respondent and was therefore protected by the Speech and Debate Clause of the Constitution.

As this Court stated in the great case of Kilbourn against Thompson, the purpose of the privilege conferred by the Speech and Debate Clause is to support the rights of the people or enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal.

Last time in the Johnson case, this Court said the privilege will be read broadly to effectuate its purposes.

Accordingly, and we have seen from the cases, the privilege is not limited to speech or debate strictly as such but attaches to all things that are generally done in the session of the house by one of its members on the business before it and this includes investigation of outstanding committees or special committees.

And as the Court has held or said in several cases, Tenney against Brandhove and the Johnson case, this privilege is not destroyed by allegations of proof of illegality or claim of non-worthy purpose.

It protects the legislator so long as he acts in a field where a legislator traditionally have the power to act and is lost only when the acts of the legislator are nowise related to the due functioning of the legislative process.

Justice William J. Brennan: Does that rob off on the counsel too?

Mr. Roger Robb: I beg your pardon?

Justice William J. Brennan: Does that immunity rob off --

Mr. Roger Robb: I think it does.

Justice William J. Brennan: -- on the counsel?

Mr. Roger Robb: Yes, I think it should and does, yes sir.

Justice Potter Stewart: Mr. Robb, are you relying on the -- on the Speech and Debate Clause itself or on the -- what I know is thought was a more broad -- broader and more generalized immunity but perhaps less complete of -- of Tenney against Brandhove and Barr against Matteo.

Mr. Roger Robb: Well --

Justice Potter Stewart: -- upon which you're relying on both or do you think --

Mr. Roger Robb: We rely upon, so far as Senator Eastland is concerned, we think the issuance of this subpoena, these subpoenas was clearly within the legitimate sphere of his legislative activities and duties.

We think that the activity of Mr. --

Justice Potter Stewart: So with respect to him you're relying in a --

Mr. Roger Robb: Legislative --

Justice Potter Stewart: Basically on the Speech and Debate Clause.

Mr. Roger Robb: Yes sir.

Justice Potter Stewart: Not on the general doctrine of legislative immunity as found in Tenney against Brandhove --

Mr. Roger Robb: No.

Mr. Roger Robb: -- is that it?

Justice Potter Stewart: Now, with respect to Mr. Sourwine, we say that all that he did in examining the SCEF records taking to Senator Eastland and recommend the issuance of a subpoena, serving the subpoena, causing the records to be moved to Washington.

All of these things, the record shows were done by him in his official capacity as counsel for the subcommittee and they were all mattered generally committed to his control of the discretion as general counsel.

We did nothing that went beyond the scope of his legitimate and proper duties and authority.

And we submit --

Justice William O. Douglas: Perhaps it should be tried if there is a question of the fact.

That would be the issue.

Mr. Roger Robb: Yes, Your Honor.

But there isn't any issue of the fact by us admitting that everything he did was in this capacity.

Now --

Justice Potter Stewart: And so what follows from that?

Mr. Roger Robb: We follow from this, if it please Your Honor, that as the Court pointed out in the Barr case and other case as Howard case, a committee on executive must acts through agents and assistance and counsel.

This is a necessary corollary of the function of the government.

And since this is true and we submit that since the must of necessity be a delegation of duties and deciding by legislators as well as executive, we submit that the agent of the legislator should partake of the same privilege of immunity which the legislator has.

Justice Potter Stewart: That is on -- is he protected you say then by the -- explicitly by the Speech and Debate Clause or just by the general doctrine of legislative immunity?

Mr. Roger Robb: I would say partly by the general doctrine although it's six and one and a half does in the other--

Justice Potter Stewart: No, I haven't understood that it was exactly six and one and a half does in the other.

There's an overlap perhaps.

Mr. Roger Robb: Yes, I think.

Justice Potter Stewart: The one that's more explicit and perhaps more complete and the other is broader and perhaps less complete.

Mr. Roger Robb: But I think it would be anomalous, may it please Your Honor, to hold that the deputy or ranked administrator which I think with Mr. Barr's provision --

Justice Potter Stewart: Yes.

Mr. Roger Robb: -- would be immune whereas the general counsel of the congressional committee was not.

Justice Potter Stewart: Immune with respect to defamation --

Mr. Roger Robb: -- damages --

Justice Potter Stewart: Defamation in that case.

Mr. Roger Robb: Yes, damages.

Justice Potter Stewart: Damages with defamation.

Mr. Roger Robb: Yes sir.

I think it will be anomalous to hold that the deputy marshal who served the subpoena issued by the Court would be immune and there are such cases even though the subpoenas are invalid.

Subpoena are served the process issued by the Court would be immune but a counsel of the same committee who served the similar subpoena would have to respond in damages.

I think the same principle works in both cases, applies in both cases.

Now --

Justice Abe Fortas: But why do you make up a quote from Tenney against Brandhove on page 38 of your brief?

Mr. Roger Robb: Well, I said that --

Justice Abe Fortas: Isn't that suggests a difference in the two?

Mr. Roger Robb: Well, if I -- if can't entirely understand that except that for a -- it says that the privilege extended to a legislator is entitled to a greater respect and not extend it a subordinate.

I don't conceive that that says that the subordinate has no privilege.

Justice Abe Fortas: No, but it says -- it says that the legislator -- the member of the legislature has a higher type of quality or something --

Mr. Roger Robb: Yes, Your Honor.

Justice Abe Fortas: -- and privilege than where an official -- then -- then an official has who has many acumen on behalf --

Mr. Roger Robb: I can see how, may it please Your Honor, if you took this hypothetical question, I take it that for a no speech made on the floor of the Congress could a senator or a member of the House be sued and have to respond in damages for libel in those cases.

However, I can conceive of a press release or speech issued by some subordinate which so far departed from the scope of his appropriate duties that he might be liable to damages.

And I think perhaps that's what the Court is talking about.

Justice Abe Fortas: Well, it did seem a little trouble here I'm afraid.

Mr. Roger Robb: I beg your pardon?

Justice Abe Fortas: I said, I think that leads into some trouble here.

I understand you get into a question as to whether their official get preliminary question anyway or whether the employee is acting merely as an peripheral ego or whether he has aired with little pepper and salt and wosterschire sauce and ingredients of his own.

Mr. Roger Robb: Well, if that's what you had, may it please Your Honor in the Wheeldin case, Wheelding against Wheeler.

Wheeler issued a subpoena on his own without any authority from anybody, the chairman of the committee or anybody else and he was held liable whereas in our case, we don't have that situation.

Of course, in the Kilbourn case.

In the Kilbourn case, the Court held I think -- and I think the plain intendment of the Court's decision was perhaps the members of the committee and who had Kilbourn held in contempt actively participate in his arrest.

They -- they would have been liable.

But everything they did was within the scope of their legislative functions.

Therefore, they were not liable.

Now, we say here everything that Senator Eastland did and Mr. Sourwine did, came within the scope of their legislative functions.

Let me make one thing perfectly clear.

If I wasn't sure from Mr. Kinoy's argument on whether he was suggesting and I was contended that there's a proper function for unanimous state center or counsel for Senate committee to go out and make illegal arrest, searches and seizures, I'm contending no such thing.

I certainly wouldn't -- wouldn't contend that there's such a thing.

This is obviously not a legislative function.

Justice Abe Fortas: Well, and that -- and that gets you into a problem because his contention is that the -- Senator Eastland and Mr. Sourwine took over appropriate for the uses of this committee if you will, papers and records which Senator Eastland and Mr. Sourwine by that time, I suppose, knew had been held to be unlawfully seized, is there -- by that -- by the time of it's proceeding before Judge Ainsworth it is true, isn't it, that there had been state court decision saying that this material was unlawfully seized.

Is that right?

Mr. Roger Robb: I think -- I'm not sure.

Justice Abe Fortas: Well, that's my recollection so that in -- in terms of the sequence of events, if I understand Mr. Kinoy.

He is saying that Senator Eastland and Mr. Sourwine deliberately took over papers and documents that had been unlawfully seized and would you draw a distinction between that and the -- the service of an -- a direct service of an unlawful -- that directs an unlawful seizure of documents?

Mr. Roger Robb: Oh!

Certainly.

And I don't think, may it please Your Honor, that you can reason ex post facto so to speak and because -- because Mr. Sourwine and the committee took over these papers after the raid that therefore they must be held responsible for whatever happened on the raid.

Justice Abe Fortas: No, I am assuming that they took over the papers though after their administrative adjudication.

Mr. Roger Robb: Precisely.

But -- but --

Justice Abe Fortas: That the raid was unlawful.

Mr. Roger Robb: Precisely.

But the gist of the complaint is that they participated in the conspiracy to make the raid.

And this happened after the raid.

Now, the petitioners have not produced a scintilla of evidence that these -- these respondents knew anything about the raid, had anything to do it.

And they won't be able to produce any such evidence on trial.

They may hope to but -- but they've had every opportunity to do so.

Now, there were some reference made in taking Senator Keating's deposition and that Mr. Kinoy came into Court the day of the argument on the motion for summary judgment.

The letter from Senator Keating which is in the record here which -- in which he protested against the -- that issuance of these subpoenas and appeared to Mr. Kinoy and his co-counsel had known about this for weeks and haven't done anything about it.

In any event, the letter is completely irrelevant.

These petitioners had every opportunity to explore, to take depositions, and to get -- and to bring in evidence but they brought in nothing whatever to contravene all statements of facts.

On these grounds, may it please the Court, first that the uncontradicted proof shows that these petitioners have nothing to do with this conspiracy which is the gist of their case and second, that the issuance of the subpoenas and the taking of the records to Washington pursuant to those subpoenas was well within the legitimate scope of their legislative duties and therefore privileged, we submit that the Court ought to be affirmed, lower court should be affirmed.

Chief Justice Earl Warren: Mr. Kinoy.

Rebuttal of Arthur Kinoy

Mr. Arthur Kinoy: May it please the Court.

I just have a few remarks to make in rebuttal.

I think the issue is a rather fully and complete before the Court.

Just on a factual question, the Court addressed the question as to whether the telegram to the senator was on the directions of the judge and the transcript on page 29 has a affidavit which says, “On instructions from Judge Ainsworth to notify the other parties to be present in his office at 9:00 AM on the morning of Monday, October 28, for the purpose of discussing the request for temporary restraining order.

Telegrams were sent to all of defendants, Green, Burbank and Willie.”

That's in -- on page 29 of the record.

The telegram was sent at the instructions of Judge Ainsworth.

That affidavit has never been controverted.

I just have one or two other remarks that I would like to make.

A suggestion has been made that perhaps in some way, the doctrines developed by this Court in Barr, the immunity doctrines, may save the respondents here.

I would just like to point out that as was mentioned by the Court, the question in Barr was of course tort and liability on defamation.

There was no intimation in Barr to the slightest degree in the opinion of the Court or in the dissenting opinions that the Court would have take the same view toward a charge of participation in an illegal search and seizure.

The opinion, the majority opinion in Barr is very clear that what the Court is there talking about are acts, normal ordinary business acts in the course of the conduct of the government business and I don't think the Court in the majority of dissent in Barr would have ever intimated that the participation in the illegal search and seizure would be the kind of activity which would invoke under any circumstances a man told of immunity under Barr and it's a matter of fact the --

Justice Abe Fortas: I don't understand, and Mr. Robb contested that.

I didn't understand that your -- Mr. Robb contested that proposition.

Mr. Arthur Kinoy: Well, I would think that if Mr. Robb --

Justice Abe Fortas: I may be wrong but that's the way I understood it.

Mr. Arthur Kinoy: Right.

I think -- I -- in any event from their arguments, I think the respondents have been asserting that concept but even if Mr. Robb does concede that, I would say then clearly that the issue there is one of whether or not the acts here presents a contested issue of facts as to participation in the illegal searches and seizures or the fruits of the illegal searches and seizures.

Now, in that respect, I don't think that the respondents here have responded -- have answered to the simple proposition brought forth by the Court in Kilbourn, because Kilbourn is quite clear that the use of the warrant of arrest by the sergeant was no protection in immunity to tort liability.

I think the analogy is very clear here for the warrant of arrest and to the subpoena.

Now, finally, I would suggest that at least as I listened to the argument of Mr. Robb, there would seem to be no direct reputation of the simple record fact that the respondents here at a minimum engaged in activity taking the records out of the jurisdiction of Louisiana knowing that these were the fruits of an illegal search and seizure.

The record is perfectly clear about that.

The Louisiana Court has so ruled in which it is perfectly obvious that they were illegally seized fruits of a search and seizure.

I would suggest on two scores, one, that it's black letter conspiracy law.

That fact showing the participation in the fruits of the conspiracy are certainly admissible to show the co-conspirators' knowledge of the conspiracy and the participation in the conspiracy and the second, this black letter law in respect to the laws of the Fourth Amendments, that the participation in the fruits of the illegal search and seizures are unconstitutionally void as the seizure itself.

Thank you very much.

Justice Abe Fortas: Mr. Kinoy, the state court decision holding the search and seizure illegal prior to the proceedings before the citation--

Mr. Arthur Kinoy: On Friday.

Justice Abe Fortas: Sir?

Mr. Arthur Kinoy: In Friday of our -- of the -- the removal was on Sunday.

The state court decision was on Friday vacating these warrants of arrests.

Justice Abe Fortas: And the proceedings before Judge Ainsworth are when?

Mr. Arthur Kinoy: Sunday morning when he directed a telegram and Monday morning before on the TRO, yes.

Justice Potter Stewart: Mr. Kinoy, how about the equitable part of your course of action, your injunction.

You haven't spoken of that or you have missed it?

Mr. Arthur Kinoy: No, I -- I think, that's argued in full in the brief with just a word on that Justice Stewart since you raised the question.

I think that the argument of the respondents make it very clear why the equitable course of action was essential.

We ask simply for an injunction ordering the return of the illegally seized records and that copy should not be used.

We asked for that in the District Court here in Washington.

In the District Court in Washington, we were told by the respondents and the courts that we had -- there was no power, no jurisdiction or power in the District Court to restrain a congressional committee.

The Circuit Court did not follow that approach because we were asking for an injunctive relief against the individual respondents.

They concede it that an injunction would lie against the individual respondents but they said it would be futile to give us that remedy because unilaterally the individual respondents had said that they had no copies of the documents and records but it was in the Senate committee.

This was --

Justice Potter Stewart: That -- that the originals and -- and mine is wrong in thinking that the undisputed facts are, that the originals have been returned to your client.

Mr. Arthur Kinoy: That's right.

Justice Potter Stewart: And that the copies are in the possession not on these respondents but rather of the Senate --

Mr. Arthur Kinoy: No, Justice Stewart.

That's -- that's the heart of the matter on the equitable relief.

That fact was totally disputed.

We don't know.

Mr. Robb was unable to answer the question as to how many copies of the record there are.

Justice Potter Stewart: Well --

Mr. Arthur Kinoy: We don't know.

Justice Potter Stewart: Well, isn't the -- aren't there statements under oaths which are uncontradicted to the effect that those are the facts?

Mr. Arthur Kinoy: Justice Stewart, we had no opportunity contradicting that --

Justice Potter Stewart: No, just --

Mr. Arthur Kinoy: No.

Justice Potter Stewart: Could you answer the question?

Mr. Arthur Kinoy: There are statements that those were the only records, yes Justice Stewart.

Justice Potter Stewart: Under oath?

Mr. Arthur Kinoy: Under oath.

We had no opportunity to controvert those because the District Court on the request for TRO dismissed the equitable complaint not on this factual issue but that he had no power.

Justice Potter Stewart: I understand.

But the Court of Appeals did on the factual issue, saying the facts are undisputed.

Mr. Arthur Kinoy: That's right, and our position simply on that is that we are entitled to a hearing on that.

Justice Potter Stewart: I see.

Mr. Arthur Kinoy: Yes sir.

Justice Potter Stewart: You don't -- you don't take issue and I -- I suppose you couldn't do with the proposition that if the facts are as represented, your injunction has to fail because it -- it would work --

Mr. Arthur Kinoy: No, we don't make issue.

Justice Potter Stewart: -- would be impossible (Voice Overlap)

Mr. Arthur Kinoy: We say we are entitled to a hearing on that question.

Justice Potter Stewart: Right.

Justice William J. Brennan: Mr. Kinoy, may I ask you just one question.

And that's the fact which I'm not quite clear of significance of your fruits argument.

Are you arguing number one that these respondents in fact participated in the illegal conspiracy?

Mr. Arthur Kinoy: Yes, Your Honor.

Justice William J. Brennan: But if they did not, nevertheless, that they are truly participating in the violation of the Fourth Amendment because with knowledge that these materials had been illegally seized.

They took advantage of --

Mr. Arthur Kinoy: Mr. Justice Brennan, that --

Justice William J. Brennan: -- if I can get them.

Mr. Arthur Kinoy: That's an alternative --

Justice William J. Brennan: It's an alternative argument.

Mr. Arthur Kinoy: An alternative argument and a subsidiary argument.

Third, I would say Justice Brennan that we argue that this is additional evidence which would be admissible on the original conspiracy.

Justice William J. Brennan: But suppose if you are not entitled to hearing on the issue of the original conspiracy on this alternative argument to gather the facts of already has found to blow that they did have knowledge, that they have been illegal --

Mr. Arthur Kinoy: It would seem so,Your Honor, yes.

Justice William J. Brennan: Well, because of -- I forgotten though it come out very similar with Dombrowski and Pfister but what were the dates of those seizures in relation to the date of the subpoena.

Mr. Arthur Kinoy: Yes.

Justice William J. Brennan: Were they before?

Mr. Arthur Kinoy: The seizures were on October 4.

Justice William J. Brennan: And when was -- when was the Louisiana Court decisions question the --

Mr. Arthur Kinoy: On the 24th --

Justice William J. Brennan: Of October?

Mr. Arthur Kinoy: 24th of October, the arrest warrants request, yes.

Justice William J. Brennan: And these -- and these -- and these subpoenas are dated when?

Mr. Arthur Kinoy: The subpoenas were dated October 4th, the same time.

There is some conflict -- confusion in the record as to the state of court --

Justice William J. Brennan: Well, but what I want to get clear is the actual action of the Louisiana courts questioning the arrest warrants was subsequent to the seizures of these materials.

Mr. Arthur Kinoy: That's right.

Subsequent and the action of the respondents removing them from the jurisdiction were after the action of the Louisiana Court.

Justice William J. Brennan: Well, you mean of -- of removing them, that Sunday night, what date was that?

Mr. Arthur Kinoy: That was the 27th.

Justice William J. Brennan: This was after the action of the Louisiana Court question the respondents?

Mr. Arthur Kinoy: That's right.

Justice Byron R. White: But the -- the actual service of the subpoenas was before the action?

Mr. Arthur Kinoy: That's right, Your Honor.

Justice Byron R. White: Which commanded the state officials to turn them over?

Mr. Arthur Kinoy: That's right.

Justice Byron R. White: So your argument would be that even if the documents had been specifically listed in the subpoenas and then signed by Senator Eastland and even if there had been no contact whatsoever between the state and federal officials up until -- until after the seizure by the state officials and then the federal people were notified and then they issued a subpoena, even so you would say you were entitled to recover because they knew when the service -- not when they serve the subpoena but when they actually removed them.

Mr. Arthur Kinoy: That's right, Justice White.

Justice Byron R. White: That they have been improperly seized?

Mr. Arthur Kinoy: Yes.

I would argue that also.

I don't necessarily have to reach that but I would argue, yes.

Justice John M. Harlan: With due respect to (Inaudible).

Mr. Arthur Kinoy: That's right Your Honor, about the removal from one place to another I think adds great inference and weight to the conclusions.

Chief Justice Earl Warren: Very well.

Mr. Arthur Kinoy: Thank you.

Featured:

Gojack v. United States - Oral Argument

Wed, 22 Aug 2012 16:56:13 +0000

Case:

Gojack v. United States

Media File:

594_19660421-argument.mp3

Related Transcript:

594_19660421-argument

Transcript:

Argument of Mr. Chief Justice Warren

Mr. Chief Justice Warren: John T. Gojack, Petitioner versus United States.

Mr. Donner.

Argument of Frank J. Donner

Mr. Frank J. Donner: Mr. Chief Justice, and may it please the Court.

This case seeks review of a conviction for contempt of Congress under Title 2, Section 192 of the code.

The Congressional Committee involved is the House Committee on Un-American Activities.

Petitioner appeared before the House Committee early in 1955.

The case was here before.

In the Russell case, the Court dismissed the indictment in this case and in five others on the ground that the indictments failed to state the matter onto inquiry.

It subsequently reversed convictions in two additional cases on that ground.

I believe this is all of those indicted -- all of those reversed convictions were subsequently re-indicted and I believe this is the sole surviving case.

The others having been dismissed either at the trial or appellate level.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: The others -- what did you say?

Rebuttal of Frank J. Donner

Mr. Frank J. Donner: Having been dismissed either at the trial or appellate level.

The indictment -- our first contention here Your Honor is that the indictment is insufficient because it lacks the specification of authority by the Subcommittee involved to make the investigation here at issue.

This contention has two ingredients.

First the fact of authorization to make the investigation which is a condition of competence and second, the details of the authorization which is a condition of pertinence.

The indictment states that the subject of the hearings was Communist Party activities in the field of labor, and that this was a question within the authority of the Committee, but it does not state that this subject was delegated to the Subcommittee by the full Committee.

The following sources of authority are listed in the indictment for the hearing.

First the Legislative Reorganization Act which is a full description of the entire Committee's authority.

Second, the House Resolution 5 which is the implementation of the 84th Congress of the full authority of the Committee.

Third, an action of the Committee appointing a Subcommittee but not designating the purpose for which it was appointed.

Fourth, a resolution of January 20th, 1955 about a month before this hearing took place, granting the Chairman authority who appoints Subcommittees to cover whatever the Committee itself could investigate and fifth, the grant of a continuance of a hearing from February 8th to February 28th again without any statement of the subject committed to the Subcommittee.

It appears, and I don't think there's any dispute about this, that the subject under inquiry as referred to in the indictment is merely the Subcommittee Chairman's announcement at the hearing at which petitioner appeared.

Finally, I should also point out that there is no allegation in the indictment that the Subcommittee itself decided to undertake this investigation.

In the Lamont case, Chief Justice Clark -- Chief Judge Clark held that the indictment under Section 192 involving a subcommittee must allege the authority of a Subcommittee to conduct an investigation into the subject claimed to be under inquiry.

And that conversely, a reliance on the authority to the parent Committee was insufficient to show competence.

Judge Clark added that and I quote now.

“The result might well be different were this a case of a Committee created by Congress to hold hearings for a specific purpose, with the inquiry in question apparently falling within the assigned purpose” and there is a CF citation to the Josephson case and the Josephson case of course did involve a House Committee hearing.

The Lamont case involved a permanent -- the permanent investigation Subcommittee of the Senate Committee on Government Operations.

It was followed in the Second Circuit by the Seeger case, which was decided three days before this Court decided Russell and it ruled that a much more explicit indictment than is present here was defective because it had failed properly to allege the authority of the Subcommittee to conduct the hearings in issue.

The court upheld this contention despite the fact that the indictment recited the fact, and I quote, “The full Committee had directed that an investigation be conducted of Communist infiltration in the fields of labor.”

The Seeger Court's decision rests both on the grounds of competence and pertinence, that is, it construed the pertinency provisions of Section 192 to require that the question under inquiry as authorized be pleaded.

Judge Moore concurred in the result because he felt, I believe, that the Josephson case was controlling, but he said despite the fact that the government proved that a clerk had directed that the -- an investigation be conducted of Communist infiltration, there was no proof of a resolution by the Committee.

The majority on the court distinguished Josephson on the ground that the issue had not been raised there and that the challenge to the adequacy of the indictment was based on other grounds.

The court also distinguished the Sacher case which is relied on here by the Government, that is the Seeger Court, first on the ground that the court in Sacher, which was decided by the Court of Appeals for the District of Columbia, had ignored the rationale of the Lamont case, and second on the ground that the court there was primarily concerned with the impact on Sacher of the remand in the Watkins case and really did not directly come to grips with this issue.

In my brief at pages 44 to 45, I distinguish the Sacher case on two additional grounds, but I don't want to go into it here.

I want to get on with my further argument about assuming this Seeger-Lamont view is correct, the question then arises whether a Committee is required when an investigation is conducted, narrower in scope than the full range of the Committee's power to designate for itself through a resolution or a motion the subject under inquiry.

Or whether conversely a Subcommittee can on its own decide (a) that an investigation is to be conducted, (b) construe the Rule 11 that is the authorizing resolution as to what it means, (c) decides that a legislative purpose would be served, (d) decide that the facts already existing were inadequate.

Now that really is the nub of the case in my view, because it seems to me that it would be unthinkable to hold that a Subcommittee of the House on Un-American Activities Committee could on its own under a blanket investigation decide all of these questions and I think a useful place to start would be the Legislative Reorganization Act and system of controls which had been erected on it, which are in many ways very admirable.

Since the Legislative Reorganization Act was passed, legislative investigations with the a subpoena power, and that is the great war shed as it were in this field it seems to me, what happens when the subpoena power is invoked?

Legislative investigations with a subpoena power are either directly authorized by Congress with a limited and clearly defined subject matter and duration, the so-called special investigations or indirectly through a standing committee but similarly limited as to subject and duration.

The jurisdiction of standing committees is too broad and general, agriculture, armed services, judiciary, to support the use of subpoena power without further refinement and delegation.

Thus every investigation is ultimately a special investigation in the sense that whatever the immediate source of its authority, Congress or a parent standing committee, it has a clearly defined subject matter and a duration authoritatively fixed by the parent body in each case.

Now the House Committee is in many ways a sport.

It began as a special Committee, but there can no doubt that it shares in most important particulars, this characteristic of a standing committee.

And moreover, it is not only a standing committee with an area jurisdiction in the standing committee sense rather than a limited subject jurisdiction, but its charter is too vague to support the use of a subpoena power in any event.

In other words, it's not only general like Agriculture, but it's vague like Un-American.

Thus, the Committee does not and could not use compulsory process to probe, and I'm quoting the rule, “The extent, character and objects of Un-American propaganda activities in the United States or the diffusion with the United States of subversive and Un-American propaganda.”

And as a matter of fact as I point out on my brief, the Committee has completely redefined its resolution to eliminate the word propaganda from it altogether.

The Committee construes its charter then none of them ad hoc assignment, you can't find one investigation in the 20 years that the Committee has been in existence as the standing committee into the literal terms of its rule.

It construes its charter not as an ad hoc assignment, but as a grant of jurisdiction over a broad area.

Indeed an area almost without boundaries, segments of which are interpreted by the Committee and then probed piecemeal.

On the face of it, turning to our case, Communist activities in the field of labor, Communist Party activities, is a subject not even mentioned in Rule 11 and obviously required an initial construction and delegation before the Committee's agent, the Subcommittee, could proceed.

Now the characteristic modus operandi of the Committee is to choose by resolution or motion a particular subject and assign a committee to investigate.

In my brief at page 37, I have assembled some samples of hearings where these resolutions are recited and I would like with the indulgence of the Court just to read one of them, the type of resolution which typically triggers a committee investigation.

“Be it resolved,” this is a Committee resolution in connection with the hearings in Newark, New Jersey in 1958, “Be it resolved that a hearing by the Committee or a Subcommittee thereof to be held in Newark, New Jersey or such other place or places that the Chairman may designate on such date or dates that the Chairman may determine, be authorized and approved including the conduct of investigation deemed reasonably necessary by the staff in preparation therefore, relating to the following subjects and having the legislative purposes indicated.”

Now, these resolutions accomplish at least three things in the Committee's internal housekeeping.

First they assign a Subcommittee a subject matter, second they register the approval of the Committee for the investigation, and I will have occasion in my next point to discuss the violation of Rule 1 of the Committee which requires approval of the Committee of every major investigation and third, these resolutions designate the legislative purposes which the hearing is to be conducted.

Now I suggest that this practice is not optional for it's required by law and I suggest this because first only the Committee can authorize an investigation.

It seems to me that this is almost obvious.

Second, only the Committee can construe its own rule.

Certainly an agent of the Committee, a Subcommittee which is not even an agent of Congress, but an agent of the Committee is never elected by Congress, hence construe the meaning of Rule 11, that's a job for the Committee at the first instance.

Third, the Committee must determine whether a legislative purpose would be served by holding a particular hearing.

It seems to me true that this is self-evident and I think that because the Committee didn't do that in this case, we have a situation in which a statute covering the precise area which was supposedly under investigation here Communist Party activities in the field of labor.

Exact statute was passed some six months before this hearing took place, that's the Communist Infiltration Act of 1954.

Now the Committee -- if the Committee were really making a deliberate judgment on the need -- the legislative need, the legislative purpose for this investigation, if it was singling out some evil in a deliberate considered way which required legislative therapy, one very much doubts whether it would've chosen this already legislatively exhausted subject.

Finally, the Committee must decide whether the facts are needed.

Now, there is one other consideration which seems to me to point to the necessity of a committee determination and that is the court's ruling in the Watkins case.

It seems to me that the Watkins ruling can almost be distilled to say that where First Amendment freedoms are involved in a probe, these four responsibilities that I've just been talking about for authorization, construction, legislative purpose and fact gathering and I could -- there quotations in the decision which justify what I'm about to say for each of these areas.

That these four areas, when the First Amendment is involved, create responsibilities which much -- must be lodged as close as possible to the source of power.

It seems to me that the Watkins decision says that we must present, and I'm quoting now, “the separation of power and responsibility” in First Amendment cases particularly and it seems to me also that that almost requires the kind of result that I'm arguing for here.

Now, Your Honors will recall that I stated at the outset that this argument has two parts.

I've dealt -- I'm dealing up till now with the question of competence.

I want to deal now with the question of pertinence.

Preliminary, let me say that I think that outside of the area of pertinence, considered truly as a First Amendment question, the Committee should be required to decide that the need for the facts is so exigent as to warrant an invasion of First Amendment rights and the only way that can be expressed is through a detailed delegation to the Subcommittee specifying by an agent of Congress to subordinating and compelling demands which require investigative action.

Now, I want to turn to the Russell case and the construction of the Russell case.

This Court held in Russell that the question under inquiry for purposes of Section 192 pertinency requirement must be pleaded.

This, it seems to me, requires a statement of the matter not as considered merely by the Subcommittee Chairman as confided by the Subcommittee to -- as confided for the Subcommittee by the full Committee, but rather a statement, an original statement of delegation by the Committee Chairman.

Statutory pertinency as opposed to due process pertinency turns on the relationship of the unanswered questions to the authorized question.

It is significant I think that in all of the Court of Appeals decisions cited in the Russell case where the inquiry was recited in the indictment, there were decisions in the Second, Sixth, and Seventh Circuits, the question that was contained in the resolution was the one -- the question that was deemed to be under inquiry for purposes of the pertinency provisions of the contempt statute, were the ones delegated by the full Committee.

That was true in the Yellin case and the Davis case and in the Second Circuit cases.

That is, in every instance where a grand jury returns an indictment, reciting the matter under inquiry, they recited the matter as stated by the full Committee in a delegation to the Subcommittee.

I also think it's of some interest that since the Russell case and under the compulsion of the Russell case there have been at least five indictments in the District of Columbia.

Two of them incidentally by the same grand jury that indicted petitioner and that all without exception recites the delegation of the full Committee to the Subcommittee.

Now it's interesting to trace the background of this pertinency requirement.

Originally, when the statute was passed the congressional practice was to launch every investigation with a special resolution.

In other words, there were -- this problem never arose because Congress itself was explicit in delegating the matter under inquiry through a special resolution and the court in the Barry case simply construes the statute, the 1857 statute, to read just that way.

They say that the pertinency requirement is a requirement of pertinency to the matter delegated by the full Committee.

There was one occasion in the House of Representatives when this statute was construed that was in 1955.

When the Chairman of the Rules Committee, Howard Smith, answered a question in connection with the debate that was introduced -- that was conducted in the House with respect to a resolution introduced by Congressman Doyle amending a House Rule to require that the announcement at the beginning of the hearing of the subject -- under -- to require some announcement at the beginning of the hearing of the subject under inquiry.

And Congressman Smith was asked whether this announcement, which is a kind of announcement we have in this case, was the kind of announcement which would serve as the foundation for pertinency for purposes of the contempt statute and he said, “No, it was not.”

That the statement of the Chairman of the Committee at the hearing which would be made pursuant to this rule was not the statement which was required -- not the statement of pertinency which was required under the contempt statute.

It seems to me that in effect, the House is required -- the House Committee is required in order to comply with the pertinency provisions of the contempt statute to make a special resolution in every case in which an investigation is launched.

In order to furnish the foundation for the -- for a resolution of the issue of pertinency, there must be an authentic detailing of the question under inquiry.

It seems to me that that it is this authorization, this special delegation which is the charter of the Subcommittee in the sense of Rumely case it must be created by the Committee and recited in the indictment not only for the reasons of competence, pertinency, and free speech already referred to, but to enable a court and defendant to determine whether the Committee exceeds its jurisdiction and whether the Subcommittee acted within its terms of reference.

Now, the Government's answer to all this is that the indictment is insufficient because -- it is sufficient, forgive me, because it recited that the Committee assigned all of its powers to the Subcommittee.

But the subject under inquiry was not all of the Committee's power which is I think is quite clear could never be a subject under inquiry, but the relatively narrow subject of Communist activities in the field of labor, Communist Party activities, a subject which I have pointed out already can't even be extrapolated so to speak, can't be inferred from the resolution by reading it.

You have to bring to it some special kind of a focus in order to -- you have to -- in other words this is an area where in order to specify this matter under inquiry, some construction must be made and the Committee had to do it.

Now, I want to turn next to the fact that there was no proof of delegation.

There is no proof at all in this record this the Subcommittee was authorized to conduct the matter alleged to be under inquiry and in order to conserve my time, I'll refer you to the brief on that point and deal with my third point which is the question of the rule.

I think the Yellin case holds that violations by the Committee of its own rules precludes a conviction for contempt.

Rule 1 of the Committee requires that no major investigation shall be initiated without approval of a majority of the Committee.

Rule 11 of the House Rules require that standing committee shall keep a record of all committee actions.

Now the entire file of the Committee was introduced in evidence in this case and there is no evidence at all that this rule was complied despite the fact that it's clearly a major investigation and the Government doesn't dispute that.

Now, the rule -- it's a simple rule designed to prevent one-man rule to be redundant and to prevent partisanship in administration of the investigatory process and most committees have such rules.

It is a modest attempt, again to refer to Watkins, to prevent the separation of power from responsibility, that measure of added care which you spoke of Mr. Chief Justice in that case, which Committee should be required to engage in to ensure fairness.

Now Government claims that this rule was complied with because sometime in 1949 or 1952, either one I don't know which, the Committee had commenced to pursuit of the union on which petitioner was a member and this was a continuing investigation.

Now Your Honors, I'm appalled with this contention, because in American investigative practice, we don't have – we don't have continuing investigations.

That aside, it's confessing that we have a kind of star chamber in this country that a Committee can use a subpoena power to investigate individuals and organizations indefinitely without resort to the conventional controls of Congress.

And it seems to me that it points out very sharply the fact that this whole investigation was governed and determined only by the available supply of exposable witnesses.

As a matter of fact, the first entry of this Committee in this case was a decision to subpoena the petitioner.

Not a statement of a legislative purpose or a decision to subpoena him.

Now, let me get to the merits of why this argument about a continuing investigation is untenable.

In the first place, there's no proof that the investigation was approved even back in 1952.

In the second place the very purpose of the rule would be frustrated if an approval could be inferred from prior investigation.

In third place, approval prior to the 84th Congress could not activate a subsequent investigation because the House is not a continuing body.

In the fourth place, the Committee itself was not constituted until the beginning of the 84th Congress, and the indictment specifically refers to the Committee as having been created and authorized by House Resolution 5 of the 84th Congress.

In the sixth place, the Committee itself does not carry over investigations from one Congress to another without fresh approval through a new authorizing resolution.

And at page 37 of my brief, I refer Your Honors, to a typical resolution in which an expired investigation is reinvigorated in a new Congress by the Committee.

And so -- it seems to me that not only is this contention factually and legally erroneous, but it raises an enormously important question of due process and principle.

Because in effect the government is -- if the government's position prevails here, it means that we have a continuing body that goes from Congress to Congress invading people's freedoms without any control at all, and it seems to me that this is certainly not the law and it's certainly not the intention of the rule.

Now I intended to discuss also something that's intimately related to this and that's the pattern of exposure in this case.

I think I have followed with fair fidelity the cases that have come to this Court in this area.

And in the past 20 years, there has never been a case which so graphically illustrates the exposure pattern of this Court as this case --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: You may have three minutes more, and counsel may have quite a few --

Rebuttal of Frank J. Donner

Mr. Frank J. Donner: I want to point out that before this hearing was held in the Fall of 1954, Congressman Walter made a statement that the accuracy of which is not in dispute.

He said, “I intend to hold bigger and better exposure hearings in which I am going to show that people with red ties are members of a plot and let the community, the loyal Americans who worked with them, do the rest of the job.”

Now when this man was subpoenaed on two occasions, the press was notified once before the subpoena was even issued, warning the Chairman, the statement that's not disputed that the subpoena would be issued, and once before it was served on second occasion, and most importantly, the press was told in a quotation again which is not disputed that the Committee intended to show that the petitioner and another witness were card-carrying Communists, which are ever showed by the way, and the rest is up to the community of rank invitation to lynching.

And it seems to me Your Honor, that if what you -- what the court said in Watkins and the other exposure cases is not to be reduced to a mere verbalism, if this is a question of fact that can be established in a case, it was established here.

Thank you Your Honor.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Yeagley.

Argument of J. Walter Yeagley

Mr. J. Walter Yeagley: Mr. Chief Justice, and may it please the Court.

In view of the presentation by petitioner's counsel, I would like to treat at the outset with the authorization of the Committee and to show that the procedures followed were regular and was called for by rules and the law, and to contest with him a bit on Seeger and Lamont.

Now I think as background, it is germane and of use, to keep in mind the fact that this Committee had not only in prior years but in the preceding year conducted investigations of Communist infiltration into labor unions particularly into the United Electrical and Radio, Machine Workers of which this man was a member.

As a matter of fact, Mr. Mates and other witness subpoenaed have been subpoenaed at a previous hearing the previous year and -- but did not appear and was to have been called at a later date.

The Committee's investigation in this union brings forth subjects not unfamiliar to this Court such as Watkins who was member of this union, Deutch, Emspak were members of this union and their cases have gone through the courts.

Justice Potter Stewart: Deutch was a student, wasn't he?

Mr. J. Walter Yeagley: Deutch, Mr. Justice Stewart, was in the UE, and they were, as I recall it, but there the question that he had been asked was relating to activity at Cornell and the -- apparently the authorization there was for the purpose was investigation of Communist infiltration on the labor and the student's point --

Justice Potter Stewart: He had a summer jobs under that work.

Mr. J. Walter Yeagley: That's right, and the student point was -- the crucial issue there was underlain to the subject under inquiry.

So when the full Committee, I believe one member being absent in that, on February 9, 1955 that background becomes of importance.

This was not a five-minute meeting where they just appointed a Subcommittee.

The record shows that it lasted an hour and five minutes or an hour and a quarter, something of that sort.

That time, a motion was agreed to, that provided that this David Mates and John Gojack should be subpoenaed to appear before a Subcommittee, and it did say a Committee on Internal Security [Inaudible] in open hearing at in Fort Wayne, Indiana.

There's the authorization from the full Committee to the Chairman to appoint a Subcommittee for the Subcommittee to hold a hearing and it states the city in which it is to be held.

In the course of the meeting and in the presence of the others the Chairman designated the members of the Subcommittee and set the date as February 21.

Later on, because it was discovered that this hearing might interfere with a union election that would follow by three days, the date of the hearing was postponed from the 21st to the 28th.

This was done by the Committee Chairman under his authority, but he called a Committee meeting thereafter advised them of the continuance of the hearing, this Committee meeting was held on the 23rd, so here is another meeting of the Committee about the hearings in Fort Wayne.

However, they changed the place of the hearings in view of the change of date from Fort Wayne to Washington, so there is another consideration.

The Committee resolution of January 20th, that hasn't been mentioned, authorized the Chairman to appoint Subcommittees to act and carry out the business of the Committee -- full Committee with the full power and authority of a full Committee.

When the Committee came into session and before the witnesses, immediately after the witness were sworn, the Chairman announced the purpose of the investigation.

At that time 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 the Communist Party propaganda.”

An examination of the record will disclose that the questions asked not only to this witness, but to the other witnesses related to that subject matter.

I believe this Court has --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Was that the first notice that witnesses had to the scope of the Committee investigation that they're about to --

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Yes that is the first advice to witnesses as to the scope of the -- the purpose of the hearing that appears in the record other than the course that the indictment, later on and before trial the indictment alleged --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Well the indictment didn't come before that.

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: No, no not before that.

This is the first time as far as this record is concerned.

However it does --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Are we dealing with -- are we dealing with the record.

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Yes.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Only?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Well other than newspaper cuttings or things of that kind.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: I beg your pardon?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: I'm not sure if I understood your question Chief --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Well, I say aren't we dealing with the record only?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Yes indeed, yes.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: What are you talking about newspaper reports before?

What does that convey?

Is that notice to that --

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Those were on the record, I'm sorry, those were in the record.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: What were in the record?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: We're dealing with the record, right.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: I beg your pardon?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Yes, we are dealing with the record.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Yes and we have nothing -- that had nothing to do with newspaper, the propaganda of the Committee, does it?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: No, what I -- I misstate it.

What I intended to mention was that prior to the hearing, the Washington representative of the union had come to the Committee in an effort to get discontinuance and they had had discussions that an investigation of this nature, I admit it is not spelled out, would interfere with the election to be held three days after the hearings.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: The union election?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Yes, the NLRB had called an election in Fort Wayne in which there are other unions interested and the Chairman had not known of this apparently.

They had received a telegram --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Does the record show he didn't know it -- know anything about it?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Yes, yes.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Did he testify to that?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: He -- it's in the records Mr. Chief Justice I'm not sure that --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: In what manner?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: That he said -- the record contains testimony as to the meeting with the Washington representative for this reason.

The congressman made this meeting an official meeting of the Committee and a recorder -- the minutes were recorded by the Committee reporter as to what was said by the congressman and was said by I believe by Mr. Goldstein regarding the request for a postponement.

As a matter of fact there was some questions raised as to whether or not Goldstein would testify under oath that there was an election coming up, because the Chairman apparently did not know of it, did not heard of it, and asked him to put it on the record of the Committee.

Shortly prior to that meeting, the Chairman had received a telegram on February 10th, I believe, from the petitioner here, vigorously and bitterly protesting the hearings and making reference to the previous Congressman Thomas' conviction and the suggestion that perhaps that the companies were behind the hearing and there were some rather strong language to such an extent that there were some strong feelings that the Goldstein meetings later on, when Goldstein came in and wanted a continuance because of an election, the Chairman was quite dubious that there was such an election apparently, and the record clearly, clearly reflects that.

I mention this to show that although the opening statement of the Chairman that the first time that the purpose of the inquiry was formally spelled out that there had been the telegram from the petitioner.

There had been the request from Mr. Goldstein, the Washington representative, for continuance because such a hearing would interfere with the election.

On that occasion that continuance or postpone was not granted.

Subsequently, the then counsel of petitioner called the counsel of the Committee, I think on February 16th and satisfied him of advisability of a postponement and the Committee counsel reached the Chairman on the floor of the House and he agreed that was a right procedure.

Now the petitioner is relying on this matter for authority on Lamont and Seeger cases.

Incidentally, perhaps I think I should mention, as far as I could find in the rules of the Committee there is no Committee Rule or House Rule that requires that the purpose or subject matter of the inquiry be spelled out in advance in a Committee resolution formally.

As a matter of fact that was not done in Watkins.

It was not -- all I can say it was not done there, I don't know.

But my point is that it had been done in prior cases and this Court has said that the court may look to other parts of the proceeding to determine what the subject on their inquiry was and whether the petitioner at the time he was answering the questions understood the pertinency or was advised of it.

It's true it must be --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: What do we look to here to see what the jurisdiction of the Committee was the scope of this investigation?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: The subject under inquiry Mr. Justice?

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Yes, as of the time of the hearing.

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: As of the time of the hearing, it would be the opening statement of the Chairman, Mr. Chief Justice when he made the statement that I've just read to you.

Later on the petitioner was advised by the Chairman and the counsel and other members of the Committee on at least four occasions of the Committee's interest in determining his party membership whether he is now a party member for the reasons of the Committee's interest in Communist infiltration under the labor field.

The petitioner, I believe I should get back to these two cases or I'll miss them, the Lamont case was I'm sure -- as the Court recalls was before the Committee on government operations.

The resolution there authorized the Committee to conduct investigations into matters of budget, the efficiency and economy of the government.

The questions asked of the witness however dealt with matters of subversion and the Court of course said that a pleading of the authority of the Committee did not plead them authority to ask questions on subversions and now there's no linking up in any manner on the question of subversion to an authorization to investigate for budget, economy or efficiency.

In the Seeger case, which also dealt with the authority to the Committee and the allegation of authority and indictment, what happened there was that the resolution that was alleged an indictment that the Committee conduct an investigation was in fact a resolution that the clerk conduct an investigation.

There had been another resolution adopted regarding the appointment of a Subcommittee and that it should hold hearings.

That resolution not only was not plead in the indictment, it was not submitted in answer to a bill of particulars.

I think that there's reason to feel in the case that the Committee itself couldn't find the resolution for this.

But in any event, the result was not only was the authorized resolution not plead in the indictment, but in each case, the witness was misled.

The witness was misled in Lamont by the nature of the resolution and the witness was misled in Seeger by the fact that the resolution that actually authorized the Subcommittee was not plead at all.

They plead a resolution apparently inadvertently that authorized the clerk to make the investigation.

Justice Abe Fortas: Mr. Yeagley, as I understand your adversary, his principal thrust of the argument that he made to us this morning is that the fault here lies in the delegation without specification as he put it the very key power in responsibility together, the responsibility being vested in the full Committee, the Committee -- The full Committee has a responsibility of specifically delineating the authority of the Subcommittee.

Now just assuming for the moment that there's something to that argument, do you take the position that there was a specific delineation by the full Committee of the subject matter that this Subcommittee was supposed to investigate?

Mr. J. Walter Yeagley: There is no formal statement in the Committee resolution to the Subcommittee of the subject of the inquiry.

Is that what you have in mind Mr. Justice Fortas?

I should observe there, however, that as far as I recall there has been no decision of this Court, and I don't believe of the Court of Appeals holding that the purpose of the inquiry, of the subject under inquiry must be spelled out formally in a resolution of the Committee.

There's no rule of the House to my knowledge that requires that in the course in discussing this problem in other cases.

I'm talking about whether the witness understood the subject matter of the inquiry and I think that is the real problem.

It has said that they may look to the opening statement when there's nothing else and if that can satisfy it.

I think the crux of the question might well be, was the witness misled?

Did the witness understand what the subject of inquiry was?

Was he advised of it at the time?

He came in before he was sworn, before he testified, and his counsel in his behalf and in behalf of the two witnesses that preceded him filed a rather lengthy motion moving that the subpoenas be vacated and challenging the jurisdiction of the Committee.

This rather well thought out motion and detailed motion did not raise the question of the authority of the Committee in any manner and I think it is worthy to note that in the bill of particulars that was later filed, petitioner didn't seem to have been misled by this at all at that point because he didn't ask anything of this nature in the bill of particulars.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Yeagley may I ask you this question?

Is it the position of the Government that a committee with a broad jurisdiction that this Committee had, has the right to appoint each member of the its committee as a Subcommittee and without giving -- putting any limitations upon them of any kind, give each member the right to roam the country and pick out anything that that member chooses to investigate in the field of the broad jurisdiction of the major Committee.

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: I -- that poses a different situation I think that might have --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: I don't think it does, except that this is one -- this is one Subcommittee and if it can do it with one, why can't they do it with all?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: It strikes me Mr. Chief Justice that a Committee of three and its method of operation and function of the chairman is somewhat different than a Subcommittee of one.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Well let's change my question and divide the main Committee up into three instead of one, and just send them roaming around the country to pick out anything they want to investigate within the broad jurisdiction of the Committee without specifying what they want investigated or what the limitations, if any, are on the Committee leaving it to the Subcommittee to choose anything that it wants to choose that it might think bears upon the question of subversion.

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: No I don't think that should be done and I don't think that's the position either of the government or the Committee, but if --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Well, if it can do it with this Committee, why can't it do it with all the members of the Committee?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: I don't want to answer that such a ways to concede that it is done or has been done because I don't think it has been done and I don't think it would be proper I agree with you on that Mr. Chief Justice.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: What limitation then do they put upon this Committee?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: There is no formal language in any resolution limiting their area of operation.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Aren't we bound by that then, to the effect that there was no limitation put on them?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Other than Rule 11 of the Reorganization Act and of the Rule 5 of that particular Congress that passed this resolution as previously been questioned here in Watkins and Barenblatt which generally described their authority to investigate Communist propaganda.

There was no other specifying of a more limited area of inquiry.

This is the reason I mentioned that the Committee didn't just meet in three minutes and go on.

They were in session on each occasion more than an hour at the time when the Committee was set up and the time when the hearing was continued.

That's why I do think it's pertinent to keep in mind that the investigation -- you know it's by act by Congress, it's nonetheless a picking up of where they left off in the previous times.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Is this a continuing Committee?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: No it is not.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: All American --

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: It's a permanent Committee, but Congress considerably could be defeated from -- in one Congress that has -- therefore not -- in one election not be back to be on the Committee the next time.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Well let me put it to you a little more simply.

Do you think that would be an order for the main Committee to divide itself into threes and appoint each group of three to have all of these powers of investigation and permit them to roam the whole country and select their own subjects of investigation without any direction of any kind from the Committee itself?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: I think that is permissible under the regulations -- of the rules of this Committee.

The January 23 resolutions clearly states the Chairman shall have the power to appoint such Committees as you've described and have a full authority to act as if it were the full Committee.

I think in answer to that, we must give some consideration of the fact that the members of this Committee are members of Congress, duly elected to the Congress.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Yes, but your answer is yes.

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: My -- I wouldn't want to run a Committee in that manner myself, would not advocating that, but I think that is the law.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: But do you think they have the power though to do that?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Yes, as it stands now, I do think they have that power.

I think that the courts have come very close to their very question not perhaps and the record is silent by saying in Watkins for example that when it doesn't appear in advance, what the subject of inquiry is the court may look to the opening statement and I believe that was done probably because the real question is has the witness been misled, has he been entered.

Justice John M. Harlan: You don't have to face that abstract question in this case do you, in view of the history of the investigation, this type of investigation that you narrated at the beginning of your argument?

Mr. J. Walter Yeagley: No, I would say that was correct Mr. Justice Harlan.

Justice Tom C. Clark: Which section of the Committee was in fact related to this?

Mr. J. Walter Yeagley: First section, 1955.

Justice Tom C. Clark: February 1955?

Mr. J. Walter Yeagley: Oh!

Justice Tom C. Clark: [Inaudible]

Mr. J. Walter Yeagley: Well it would be both.

The indictment alleges -- is that what you mean? What does the indictment alleges?

Justice Tom C. Clark: The question asked is --

Mr. J. Walter Yeagley: Yes.

Justice Tom C. Clark: [Inaudible]

Mr. J. Walter Yeagley: No, they didn't -- I misled you there.

The February 9 meeting of the Committee set up the date of a hearing for February 21.

The February 21 meeting never convened.

There was no hearing.

It was continued by the counsels of the Committee on the authority of the Chairman to February 28th and on February 23rd the full Committee had its meeting to confirm the Chairman's continuance but to move the Committee -- Subcommittee's hearing from Fort Wayne to Washington.

And then on February 28th, after those two you might say organizing meetings, the hearings began that were two days February 28th and March 1st.

Justice Tom C. Clark: Well just -- they met on those two days.

Mr. J. Walter Yeagley: February 28th and March 1st based on the authority of the January 20th, February 9th and February 23rd Committee meetings.

Justice Tom C. Clark: Now on that it was based on the questions that were asked on the 28th meeting, is that it?

Mr. J. Walter Yeagley: Yes and that was based on questions asked at the February 28th and 29th meeting.

Mr. Gojack was the third witness on 28th and it continued over to March 1 and there were six questions in the indictment.

The first one was “Are you now a member of the Communist Party?”

And the last question asked of him on March 1 likewise related to that they asked him again “Are you now a member of the Communist Party?”

I might read that because the -- if I have it.

Justice Tom C. Clark: Now the purpose was now from February 28 beginning with the --

Mr. J. Walter Yeagley: February 28th.

Justice Tom C. Clark: And March 1st also [Inaudible]

Mr. J. Walter Yeagley: Just February 28, on four occasions with this witness and another occasion with the other witnesses the Committee members, usually the Chairman, explained to the witness why they were asking the questions what the Committee was trying to investigate.

Ordinarily, it was in terms of investigating Communism in the UE or in labor.

These are spelled out in the Government's brief.

Justice Tom C. Clark: So your point is that the Committee, the Subcommittee's power derives from the resolution that authorized [Inaudible] power of the committee itself?

Mr. J. Walter Yeagley: Correct, that's resolution January 20th.

Justice Tom C. Clark: And that answered the -- that answers the [Inaudible]

Mr. J. Walter Yeagley: Yes, all of these resolutions Your Honor.

This is why I answered the Chief Justice's question that way.

As I understand it, the authority is -- and the rule as it now spelled out would permit to say enough of -- from a nine-man, three Committees to go about conducting with this other Committee.

But they could -- I don't believe their rules permit committees of one anymore, but they could go about, say have committees of three.

Justice Tom C. Clark: The full Committee authorizes specific hearing -- hearing what?

It's not over three?

Mr. J. Walter Yeagley: The full Committee authorized both the 21st hearing and the 28th hearing.

There was one absent at one meeting and they're the majority.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: But did it authorize any subject investigation?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: No sir, there's nothing in the motion.

There's nothing in the resolution of a subject such as Communist infiltration of labor there is none.

Justice Hugo L. Black: Of what?

I didn't quite understand you.

Mr. J. Walter Yeagley: There's no formal language spelled out in either Committee actions of a subject under inquiry or a subject to be investigated.

Justice Abe Fortas: Mr. Yeagley.

Mr. J. Walter Yeagley: That is not dealt with.

Yes?

Justice Abe Fortas: How do you square that with Rule 1 of the Committee's rules of procedure then?

Now Rule 1 says, what your adversary relies on, no major investigation shall be initiated without approval of the majority of the Committee.

Do I understand that you're now telling us that on no occasion was there action by majority of a Committee to initiate an investigation either in terms of labor unions generally, or in terms of this union in particular?

Mr. J. Walter Yeagley: There -- the reference to --

Justice Abe Fortas: That rule is on page 48 of your adversary's brief.

Mr. J. Walter Yeagley: Well Mr. Justice Fortas, in reference to the documentation of this particular hearing of February 28th and March 1st, there is no language in the resolution dealing with the subject under inquiry, although the resolution does authorize hearings by this particular Subcommittee in Fort Wayne and later changed to Washington and of these witnesses, state witnesses.

However it should not be said, those not in the record, should not be believed that there was never a resolution authorizing the Committee, Subcommittees to investigate commerce infiltration and labor issue alone.

This is not in the record I must say, but in the prior hearings that the Committee had conducted, not all and I can't refer to which one would [Inaudible] like in Emspak, in Watkins -- or it wouldn't have been in Watkins I don't think, Deutch and back in one of those -- one or more of those earlier hearings, into the UE, the Committee had agreed on their majority desire to pursue an investigation of Congress infiltration and to labor and particularly under the --

Justice Abe Fortas: Well I really --

Mr. J. Walter Yeagley: -- but that is not in the record.

Justice Abe Fortas: I really don't know, you said, as I know I really don't know that your adversary in his argument here made the point that the Committee's own rules require that there be approval of a majority of the Committee before initiating a major investigation.

Now, do I understand you to tell me that there's nothing before us to indicate that there was a majority approval of the Committee to the initiation of an investigation which would cover the investigation in issue before us?

That is -- I assume that means no resolution authorizing initiation of an investigation of labor unions or this specific labor union or this specific individual.

Is that the possible --

Mr. J. Walter Yeagley: That -- the language that you speak of Mr. Justice Fortas was not in this resolution.

The Committee, as the record will show, considered this not a major investigation being initiated as the rule refers to.

The Committee, as the record reflects, considered this a “hangover” from the previous year.

Justice Abe Fortas: Well was there -- I mean, a resolution whether it's hangover or not, was there in any time a resolution showing compliance with Rule 1 as relating to this particular investigation?

Mr. J. Walter Yeagley: That was in relation --

Justice Abe Fortas: Never mind the question whenever it took place or whatever you may call it hangover or --

Mr. J. Walter Yeagley: Well Mr. Justice Fortas that resolution is not on this record.

I'm sure that we can -- the Committee could locate one early as to the UE investigation, but it is not in this record.

The Committee is, it appeared in a newspaper article, they considered it a hangover, a cleaning up.

It appears in the record that they were cleaning up some leftover witnesses that they had wanted to get to in 1953 and 1954 and had not reached.

They did not approach it this manner frankly and they do not consider the initiation of a major investigation.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Well Mr. Yeagley, did the major Committee have the same personnel in this Congress that it had in the prior Congresses?

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: I haven't checked that.

I think it was substantially the same.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: But we do know that they change from year to year, but --

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: But, as I indicated before, they do --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: -- how would we know because of what former Committee, the Congress had done that this Committee by a majority vote would have done the same thing.

Rebuttal of J. Walter Yeagley

Mr. J. Walter Yeagley: Well, no.

The new Committee could change it. Obviously I would agree they could come in and say “We'll discontinue this investigation and we will have no more of this type or we will initiate one in a different area,” it's true.

Each Congress organizes itself, as you know by the members that are duly elected and members of that Congress.

This is not a second session problem.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Very well.

Featured:

Degregory v. New Hamp. Atty. Gen. - Oral Argument

Wed, 22 Aug 2012 16:55:56 +0000

Case:

Degregory v. New Hamp. Atty. Gen.

Media File:

396_19660224-argument.mp3

Related Transcript:

396_19660224-argument

Transcript:

Argument of Howard S. Whiteside

Chief Justice Earl Warren: Number 396, Hugo DeGregory, Appellant, versus Attorney General of the State of New Hampshire.

Mr. Whiteside.

Mr. Howard S. Whiteside: Mr. Chief Justice, may it please the Court.

This case arises on an appeal from a decision of the Supreme Court of New Hampshire which affirmed a decision of the Superior Court of New Hampshire, ordering the appellant in this case committed to jail for one year or until he purge himself for a civil contempt.

Involved is a statute of New Hampshire which is quoted on page 2 of my brief, Chapter 588, Section 8 (a) which is part of the New Hampshire Subversive Activities Act.

And the first sentence says, “At any time when the Attorney General has information which he deems reasonable or reliable relating to violations of the provisions of this Chapter, he shall make full and complete investigation thereof and shall report to the general court for results of this investigation together with his recommendations, if any, for legislation.”

This case originated in November of 1963.

You recall the statute, I just read says, if the Attorney General has information -- reasonable and reliable information concerning violations of the statute.

Now, what triggered the start of this investigation in November of 1963 was no new evidence of subversive activities in New Hampshire.

No sudden reappearance of the Communist Party of New Hampshire.

What triggered it was that Hugo DeGregory, the appellant in this case came into the Superior Court in New Hampshire and purged himself of contempt in a previous proceeding by answering in the negative the question, “Are you presently a member of the Communist Party?”

So, he left the court a freeman and two days later, the Attorney General issued a subpoena to have him appear for further investigation.

I have referred to the previous proceeding here.

The New Hampshire Subversive Activities Act was passed in 1951.

In 1953, a temporary statute permitting investigation by the Attorney General was adopted which not only provided that he might investigate as to violations of the chapter but provided that he might investigate as to the presence of subversive persons within the State of New Hampshire.

This was continued in 1955.

In 1957, the legislature adopted the present statute which dropped the clause about the presence of subversive persons in New Hampshire and reads as I read it to this Court.

The previous statute was involved in the cases of Sweezy versus New Hampshire and Wyman versus Uphaus both of which came to this Court.

The present statute was involved in the previous DeGregory case, DeGregory versus the Attorney General of New Hampshire which was decided without argument per curiam by this Court, 368 U.S. 19 with four justices dissenting.

Now -- and thereby upheld a New Hampshire decision saying that the Act was constitutional on its face and constitutional as applied to the facts in that case.

So as a result, I did not argue below the constitutionality of the statute on its face, although, it would be open to this Court to reconsider it if it so wanted.

My argument was based on whether the construction court on the statute by the New Hampshire courts went so far as to deny to appellant his rights under the United States Constitution, the First Amendment, the Fourth Amendment as guaranteed by the Fourteenth Amendment.

And so when he was summoned or let me interject this.

This case depends very much on the facts, the law has been cited, the cases have been cited which are very familiar to you, Sweezy, Uphaus, Watkins, Wilkinson, Braden, Barenblatt.

They're all cited in the briefs and it seems to me that it is more profitable to determine on the facts of this case, what is the applicable law?

Now, I might also advert to the fact that I have cited cases and among the cases which I already spoke off, some of those also say it but on page 13 of my brief, I've quoted two recent United States Supreme Court cases.

Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling, Bates versus Little Rock.

And again, the decisions of this Court have consistently held that only a compelling state interest in the regulation of the subject in justified limiting First Amendment freedoms.

So, I turn to the start of this proceeding before the Attorney General and --

Justice Potter Stewart: The -- those quotations you read by the duty of this Court to balance, is that right?

Balance the (Voice Overlap).

Mr. Howard S. Whiteside: Yes.

On the -- on the majority decisions of this Court, that is true.

They balance the rights of the individual against the rights of the State under the circumstances to see whether the State as such urgent reason for action as to warrant infringement of what otherwise would be the individual's rights under the Constitution.

You will find that --

Justice Potter Stewart: But the individual has rights under the Constitution he hasn't, doesn't he --

Mr. Howard S. Whiteside: Well, there is the view -- there is the view Mr. Justice that the First Amendment is exactly what it says and cannot be limited but that is not then the majority view of this Court.

The majority view of this Court as said that the rights of the individual under the First Amendment or the Fourth Amendment maybe infringed only when the State shows an urgent necessity or compelling reason for doing so.

Justice William J. Brennan: I didn't know that the Court had ever held that.

I decide--

Mr. Howard S. Whiteside: Well, maybe limited.

Did I say infringed?

Justice William J. Brennan: If you have a right under the Constitution, it can't be infringed at all, isn't that right?

Mr. Howard S. Whiteside: I think I get what Your Honor is driving at.

The right of the individual is limited under certain emergency circumstances so that the use of the word 'infringed' is wrong, I should have used the word 'limited'.

Now, the record of the hearing before the Attorney General under this summons is found on page 26 of the record and it goes on for some pages.

And the appellant through his attorney inquired immediately as to what the foundation of the Attorney General was for this new proceeding, what he was investigating.

And the Attorney General said that first of all, he didn't admit that he had to show any basis for investigation.

He have to show a form of probable cause and then he -- on page 28, he referred to -- in very general terms, the Communist Party as it existed in the late 1940s nationally and internationally.

And then he said, there is extensive documentary -- documented sworn testimony to the effect that Hugo DeGregory has been for a long active within the Communist Party of the state and on the later page, he said that -- no, I'll leave it with that.

And with that, the attorney for the appellant said, when, where, what is this sworn testimony?

What year does it applied to?

Where was it?

And the Attorney General went no further.

And so the appellant made the following sworn statement in this proceeding and I may interject.

He later repeated that under oath in the Court when the proceeding got to the court.

“I would like to state Mr. Gall that I am not now a member of the Communist Party and have not been at any time since the authority you have cited for Revised Statutes Annotated Chapter 588, Section 8 (a) that I have no knowledge of any Communist activities in New Hampshire during this period or of any violations RSA 588 during this period of six and one-half years.

In fact, I am not even aware of the existence of a Communist Party in the State of New Hampshire at any time the authority you have cited, Section 8 (a) has been on the statute.

And in view of the foregoing, I do not understand what it is I have to face here today.”

And the only reply of the Assistant Attorney General was, “Well, we have some questions to ask you.”

And so, proceeding from there, he asked questions such as, “Have you ever been a member of the Communist Party?

Have you ever been an officer of Communist Party?”

And each time the appellant would say, “When?

What period are you talking about?”

And the Attorney General would say, “Any period.”

And so the appellant under those circumstances and in view of the sworn statement that he gave declined to answer those questions.

And then we came to the next stage before the Superior Court.

The Attorney General filed a petition in the Superior Court under the appropriate New Hampshire statute to have the appellant ordered to answer the questions or held in contempt.

The appellant filed an answer which among other things set up the unconstitutionality of the proceeding as so applied.

In the court, there was a long discussion as to foundation.

The Attorney General again said that he didn't really feel that he needed to establish it.

And then he went on to mention again the sworn testimony in the file and he was challenged repeatedly on that.

“Produce it.

What year does it refer to?

Where is it?”

And the court never ordered him to produce it or spends part of the year and he never did.

And in fact, the court's decision later was not based on this statement of unknown sworn statements in the file.

It was based solely on a report which I will get to shortly.

It developed that the Attorney General really was relying on the 1955 Report of the Attorney General of New Hampshire to the legislature.

That report was attached as an exhibit in the Uphaus case in 360 U.S. here and is on file, a number of copies in this Court.

In view of that, the parties in this case have stipulated that we would not file the whole document.

It's about 250 pages and it's getting very scarce and I say, there are so many cases on file in the courts among other things.

And so, I named pages 204 to 206 of that document as part of the record because they had been referred to in the court hearing and because they deal specifically with the appellant.

The appellee, Attorney General, asked me to stipulate that he would have the right to refer to other parts of the document and argument and I so stipulated.

And in appendices to his brief, he has referred to other parts of the document which he does not give a page number on so I don't know where they are.

I don't even have a copy of that document at this point.

But I do have some notes as to certain references he made.

Justice William J. Brennan: Do we have the full report?

Mr. Howard S. Whiteside: You have the full report in the files of the Uphaus case.

Wyman versus --

Justice William J. Brennan: That's what we had before us in Uphaus.

Mr. Howard S. Whiteside: I beg your pardon?

Justice William J. Brennan: It seems to me I remember reading a very big thing.

Mr. Howard S. Whiteside: Exactly, Your Honor.

You field a dissenting opinion in the Uphaus case in which you went in at length to this very same document.

You analyzed it at length.

Justice William J. Brennan: (Voice Overlap) about the section.

Mr. Howard S. Whiteside: It was that below any bigger.

So the court determined that on the basis of that 1955 Report that adequate foundation had been laid that under the statute that provided the reasonable and reliable information as to violations of the statute.

Justice William J. Brennan: Now, how old was that at the time of the --

Mr. Howard S. Whiteside: That report was dated January 4, 1955 and its content referred chiefly to earlier years going back to the 1930s and in no case running beyond 1954.

Justice William J. Brennan: And what was the date of the inquiry in court not before the Attorney General in this Court.

Mr. Howard S. Whiteside: The date of the inquiry of this inquiry in the court was May of 1964.

Justice William J. Brennan: That's about nine years.

Mr. Howard S. Whiteside: Over nine years, over nine years after the information in the report.

Justice William J. Brennan: Are you arguing any significance to your case and our decisions last -- it was last term, wasn't it, in the respondent case?

Mr. Howard S. Whiteside: I have cited Your Honor the American Committee for the Protection of the Foreign Born and the Veterans of the Abraham Lincoln Brigade cases in my brief.

Justice William J. Brennan: Well -- are you arguing staleness here.

Mr. Howard S. Whiteside: I am Your Honor.

That is one of my arguments.

I argue lack of foundation.

I argue that the construction of the New Hampshire Court goes so far that it would permit almost any state investigation in this field, whatever foundation was laid.

The foundation here is so flimsy.

I want to go into the appellee's brief in which he makes certain allegations of fact which are not supported on the record.

He says and he repeats it.

And he repeats it time after time.

He describes appellant DeGregory as Secretary-Treasurer and organizer and leader in New Hampshire of the Communist Party.

Well, I refer this Court to the record that portion of the 1955 Report which I already said which is found on page -- pages 23 through 26 of the record.

And there it shows, “Yes, Hugo DeGregory was in the Communist Party in 1946 in Massachusetts and there's no later showing as to that.”

Yes, he was a paid functionary with Communist Party according to this report in Massachusetts and not New Hampshire in 1947 and 1948 no later record shown.

Now, as to his being a leader in New Hampshire of the Communist Party, that is not shown at all and in a couple of places.

Justice Abe Fortas: Was it '46 in -- when he was in Massachusetts?

Mr. Howard S. Whiteside: In Massachusetts.

Justice Abe Fortas: In '46 and more or less '47.

Mr. Howard S. Whiteside: And he was alleged who have been a paid functionary in applying '47 and '48 in Massachusetts not in New Hampshire.

Justice William J. Brennan: Now, you say -- when you say alleged you mean that there's a larger report --

Mr. Howard S. Whiteside: It was contained in the Attorney General's report, yes.

Justice William J. Brennan: In other words, those are -- are they finding based on some inquiry of the Attorney General?

Mr. Howard S. Whiteside: Presumably, yes.

Justice William J. Brennan: Are they findings based on the evidence of DeGregory?

Mr. Howard S. Whiteside: No.

Justice William J. Brennan: On any evidence of anyone who knew DeGregory.

Mr. Howard S. Whiteside: That I don't know Your Honor.

The report, as I recall it, states that 130 persons were summoned and examined by Attorney General Wyman before this report came out and who gave such evidence as to appellant DeGregory I couldn't say.

Now, this -- the --

Justice Potter Stewart: Well and then, in other words, there were some -- it's been said that DeGregory was a functionary of the Communist Party.

Mr. Howard S. Whiteside: Yes, sir.

Justice Potter Stewart: It's not at all clear and I suppose that was the basis for these questions, wasn't it?

Mr. Howard S. Whiteside: Yes, but when?

He has said to have been functionary of the party in 47 or 48 in Massachusetts.

Justice Potter Stewart: That's where the questions were directed at, to finding out when at all, isn't that correct?

Mr. Howard S. Whiteside: Well, in answer to your question, it does come out on page 19 of the transcript of the record, statement of Mr. Gall near the top of the page in which inquiry was made by me as to what period he was inquiring about and he replied or has stated to the Court, Your Honor, based on the information that is in the report covering that period of years which is any period during the period that is reflected in the report.

In other words, he was inquiring as to 1954 and previously.

He was not inquiring as to Communist activities or subversive activities current in New Hampshire at the time he brought those summons.

Justice Potter Stewart: I thought the question was or the following questions was, “Were you ever or have you ever?”

Mr. Howard S. Whiteside: Yes, and --

Justice Potter Stewart: Well, that's pretty clear if you -- it's just an ordinary meaning of English words that doesn't say 1954 or previously, that says ever.

Mr. Howard S. Whiteside: That is correct and DeGregory have already testified as to the previous six and a half years and questioned the constitutional authority of the Attorney General to go into the period before unless he had some current activities which would permit him as ancillary to those current activities to go into activities that long ago passed.

Justice Abe Fortas: Is there a period of limitations in the Subversive Activities Act?

Mr. Howard S. Whiteside: It is the general New Hampshire's statute of limitations which is six years.

Now, the statement in the appellee's brief that DeGregory was the leader of the party in New Hampshire is based on the following and on page 9 of the report, quote, he cites page 9 of the report for this and this is the only thing on page 9 that I can find which would justify, “A long time Communist Party official, Hugo DeGregory, currently a functionary in New Hampshire may currently be the power behind the party in this State”.

That makes him a New Hampshire leader of the party according to the appellee in its brief.

Then the appellee also makes another statement in his brief which I must challenge.

As one of the bases, as one of the foundations that he says he has for going forward with this investigation.

He says, first of all, he has the report.

Second, we have still the same airfields, military installations in New Hampshire which would be vulnerable to Communist activity and then he says, page 27 in his brief, “There are also presently residents of New Hampshire who are many of the individuals discussed in said report” and there's absolutely nothing in the record to back that up.

You search the record, there is nothing there to back up that statement.

Chief Justice Earl Warren: Would you read that statement again please, the one you just mentioned?

Mr. Howard S. Whiteside: There are also presently residents of New Hampshire who are many of the individuals discussed in said report.

Justice William J. Brennan: I gather that record, that reference then is to the big red report, is that it?

Mr. Howard S. Whiteside: The record reference is obviously to the big red report of 1955.

Justice William J. Brennan: Not to this record.

Mr. Howard S. Whiteside: There's nothing in this record to show that there are individuals discussed in that report except for appellant.

Appellant was discussed in the 1955 Report when he is still a resident of New Hampshire.

Justice Potter Stewart: Was there people who are going to be permitted to absolutely refuse to answer any questions?I suppose you're not going to have very much in any record about anything, are you?

Mr. Howard S. Whiteside: But I --

Justice Potter Stewart: Except if I refuse to answer.

Mr. Howard S. Whiteside: I point out Your Honor that that was not the appellant's position.

He made this one statement as to the period since June of 1957 disclaiming membership, knowledge or any part in Communist Party or subversive activities and if the Attorney General had believed that he was not telling the truth, it was open to him to cross-examine on that and he never did so.

That testimony of DeGregory stands uncontradicted by any cross-examination or any independent evidence.

Justice Potter Stewart: What were -- are the questions of -- which are the subject of this contempt commitment here in the record somewhere?

Mr. Howard S. Whiteside: Yes, they are.

Well, I think you can best find them in the brief of the appellee.

I'm having a little trouble finding them in the brief of the appellee.

Here we are at page 31.

"Have you ever been a member of the Communist Party?”

"When did you join the Communist Party?”

"Were you a paid member of the Communist Party?"

“Were you an officer?”

"Did you have access to -- well and so on?”

And before the Attorney General, each time the appellant asked “When?

What period are you speaking of?”

And he never got any specification to any period as the reply.

And in that --

Justice Potter Stewart: A question like when did you join the Communist Party like that you have answer is either to give a date or else I never did join them.

Mr. Howard S. Whiteside: Well --

Justice Potter Stewart: That's not a matter of when because only the witness knows when.

Mr. Howard S. Whiteside: Alright, but it has been made clear by the Attorney General's own statement that he was investigating the period of 19 -- early 1950s and back rather from the present.

Now, I may say the appellee has cited and cited a certain quotation from the case of Communist Party versus the Subversive Activities Control Board in which he says, “Where the current character of an organization of the nature of its connection with others is an issue, of course, past conduct is pertinent” and goes on like that, and this of course I admit.

Of course, past conduct is pertinent to explain present statements or present conduct but here we don't have any present statements or present conduct.

The Attorney General is not investigating it at present.

He has summoned the appellant -- the appellant has testified as to the present.

The Attorney General has produced nothing else as to the present which would permit him to investigate under this statute as to subversive activities.

Justice Abe Fortas: Did the appellant answer all of those questions as to the present or current time, all the questions on page 31?

Mr. Howard S. Whiteside: It is my belief Mr. Justice that this one statement covers every one of those questions.

This one statement would cover as is to every one of those questions.

Justice Potter Stewart: Now, where is that statement in your brief?

Mr. Howard S. Whiteside: Well, I read it -- I read the statement earlier to Your Honor.

It's contained twice in the transcript of the record once before the Attorney General and once before the Court.

You will find it on --

Justice Potter Stewart: Page 3 of your brief, I think.

Mr. Howard S. Whiteside: Page 30 of my brief.

And -- oh, excuse me, page 30 of the record and --

Justice Potter Stewart: Page 3 of your brief, is it, the statement of the case?

Mr. Howard S. Whiteside: Yes, as you say, page 3 of my brief.

And if --

Justice John M. Harlan: There is no claim -- no claim of the privilege against self-incrimination --

Mr. Howard S. Whiteside: No, no such claim at all.

No.

Justice Potter Stewart: There are no claims for immunity?

I think isn't there some immunity --

Mr. Howard S. Whiteside: There was a discussion as to that in the previous case but no discussion as to that in this case.

Justice Potter Stewart: Just what -- just what constitutional rights are you relying on here?

Mr. Howard S. Whiteside: I rely on the right of privacy under the First Amendment, the right against unreasonable search and seizure under the Fourth Amendment --

Justice Potter Stewart: Now, what --

Mr. Howard S. Whiteside: I beg your pardon?

Justice Potter Stewart: I don't -- I have a little difficulty of (Voice Overlap).

Mr. Howard S. Whiteside: Well, it has been so mentioned Your Honor in the case for instance of -- you have a difficulty in considering an investigation of subversive activities as involving the Fourth Amendment?

Justice Potter Stewart: Well, it might or might not.

It might if there were search or seizure of a man's personal effects --

Mr. Howard S. Whiteside: Alright --

Justice Potter Stewart: --or a house without a warrant.

Mr. Howard S. Whiteside: And an investigation without --

Justice Potter Stewart: Well, I don't think that's here, is it?

Mr. Howard S. Whiteside: Investigation without proper foundation?

Well, that is one of my arguments, Your Honor.

Justice Potter Stewart: Relying on what, Griswold against Connecticut something like that?

Mr. Howard S. Whiteside: Relying on Mapp versus Ohio which of course wasn't actually --

Justice Potter Stewart: Like breaking into somebody's house without a warrant.

Mr. Howard S. Whiteside: Well, I know and I cannot say them to you right at the moment certain statements in the legislative investigating cases which do bear on the Fourth Amendment and I regret that I do not have those so tabbed in my brief that I can bring a citation right out now to Your Honor on that.

Justice Potter Stewart: In the First Amendment, there is guarantees of free speech and free exercise of religion, redress --

Mr. Howard S. Whiteside: Absolutely.

Yes.

In Watkins --

Justice Potter Stewart: -- the right to petition Government.

Mr. Howard S. Whiteside: In Watkins versus The United States, 354 U.S., cited on my brief at page 8.

It was said, the First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking and that was the case of a legislative investigation.

Justice Potter Stewart: How can -- this certainly, it's very possible that in the course of a legislative investigation there might be an infringement of the right of a free press or the free exercise of religion but I just wonder what the claim was here.

Mr. Howard S. Whiteside: The claim was here without a foundation to go forward or without a legal foundation that the Attorney General could not properly proceed and if I may put it in three short statements.

The Attorney General can constitutionally investigate current subversive activities, if he has evidence of them.

There is no evidence in this record.

He can inquire at a past conduct to throw or lay down the present, if he has some evidence of the present.

There is no such evidence in this record.

He can inquire that the trick posted by the Communist Party in New Hampshire, if he has some evidence that there is a Communist Party in New Hampshire.

There is no evidence in the record that there has been a Communist Party in New Hampshire since 1953.

I cited in my brief the case of Pennsylvania versus Nelson to show the limited power of the State.

The State is not defending the whole United States now reference as to as Adam spies of the Berlin Wall are not apposite here.

This is the safety of the State of New Hampshire and the Attorney General is confined to his defense of that and should produce for the record what he has to justify his investigation as to that.

Therefore, I submit to Your Honors that this investigation has gone beyond the grounds of the Constitution and the order of the New Hampshire Court should be reversed.

Chief Justice Earl Warren: Very well.

Mr. Shapiro.

Argument of R. Peter Shapiro

Mr. R. Peter Shapiro: Chief Justice, may it please the Court.

The only issue before the Court that I see is the constitutionality of the application of New Hampshire, RSA 588 (a) as applied in the facts of the instant case.

The constitutionality was not raised below and I believe it was decided by this Court in Wyman v. DeGregory, 368 U.S. 19.

The basic --

Justice Potter Stewart: This complicate the constitutionality as applied to the facts of this case was certainly raisable.

Mr. R. Peter Shapiro: Yes, that's correct.

Justice Potter Stewart: Is it?

Mr. R. Peter Shapiro: That is the only issue --

Justice Potter Stewart: You're not suggesting that the issues which have been argued by your brother are not before us, are you?

Mr. R. Peter Shapiro: No.

Justice Potter Stewart: No, alright.

Not with that respect.

Now, the basic legal test to be employed by the Court is, has the interest of the State in this instance to adequately inform itself in order to protect its legitimate and vital interest, then pressed into fatal collision with the constitutionally protected rights of defendant.

This was brought out in the Uphaus v. Wyman case and it was I believe restated in Gibson versus Florida Legislative Committee, 372 U.S.

It's actually a balancing test between the rights and responsibilities of the Government on one hand and the constitutional rights of an individual on the other hand.

Now, our courts, New Hampshire Supreme Court is very familiar as I cited on page 10 of my brief with this type of proceeding.

They've been informed in the Sweezy case and the Uphaus case by this Court the proper application to be applied in this instance and they have been affirmed in the second Uphaus case and later DeGregory case as to the application of the statute.

It's our contention that once the appellate court concludes that the lower court has applied the appropriate law, the proper law of the case, it's not the duty of the appellate court to substitute their judgment but that of the lower court but whether or not there is adequate evidence in the record to sustain the position of the lower court.

Basically, three problems that I find involved this case, one, that has been raised would be the staleness issue which relates to the nexus between the subject under investigation and the individual witness Mr. DeGregory.

The compelling interest of a state would be the second interest involved.

Now, the one point which distinguishes the present case of DeGregory versus the Attorney General from the prior case is a lapse of time of roughly three years.

Everything else is basically the same.

Now, once the Court has determined that there is a valid fact-finding hearing and investigation has been started properly, it's the duty of the State to tie the witness into this investigation to show a proper nexus.

Now, the subject under investigation here is generally communism in and affecting the State of New Hampshire.

The basis being that the interest here is self-preservation -- which has been -- of the State of New Hampshire which has been long stated by this Court as a valid interest of investigation by the State.

The subject of investigation is the Communist Party which has been held by this Court in the Barenblatt case specifically as a -- the Communist Party is different than any other political party.

Its basic nature, its aim, the ultimate overthrow of our form of government, our democratic form of government, has been held to be a valid area of investigation.

And the vehicle for the investigation has been held valid as I've cited in the cases in my brief is the legislative fact-finding committee.

In this case, the Attorney General is appointed as such.

And -- now with reference to the nexus involved, the following is a brief resume of the witnesses' relationship to the subject under inquiry.

In Appendix K of my brief, cited at page 78, it indicates that DeGregory was a candidate in Massachusetts for Lieutenant Governor in 1940.

The Daily Worker named him as a member of the Communist Political Association in '42.

In '45, he was on the letterhead of the Communist Party in Massachusetts as Secretary-Treasurer.

Now, this is in Massachusetts.

He was active in the Communist Party in Massachusetts in 1949.

He was a paid functionary in 1949.

Now, in Appendix H of my brief at page 65, it describes the relationship of Massachusetts -- following New England states is for the exception of Connecticut were considered District 1 of the Communist Party and they all were tied up together.

Now, in 1950, DeGregory moved to New Hampshire where he presently resides also it indicates, I'm now back to Appendix K, that he was active in New Hampshire from '46 to '48 which would tie up the relationship between Massachusetts and New Hampshire.

Justice Potter Stewart: If you had all these information, why do you need to ask him about it?

Mr. R. Peter Shapiro: This is in the past.

We have to -- we felt we have to lay a foundation in the past to build up to the future.

Justice Potter Stewart: He has told you -- he told you in the statement appearing on page 3 of your adversary's brief of the situation as to the present and the immediate past and you have the information about the more remote past, so why do you need to ask him any question?

Mr. R. Peter Shapiro: We felt at that time, Your Honor, that he did have information.

We would -- we wish to follow it up from the past to the present to tie the whole picture in.

As a basis of cross-examination, you have to -- we felt we have to lay the foundation to where he was in the past to get at the present.

It would be cross-examining in a vacuum.

All we have at the present was the basic fact that -- the basic statement made by this individual.

Justice Potter Stewart: You could -- he made the statement as to his present status vis-à-vis the Communist Party that is the absence of any relationship and also, the same situation for the last six and a half years and that you could have cross-examined him about that I suppose, couldn't you?

Mr. R. Peter Shapiro: Yes, we could have.

Justice Potter Stewart: And you didn't, did you?

Mr. R. Peter Shapiro: No, we didn't.

Justice Potter Stewart: And you are now telling us you have the other information about the more remote past and that the question appears to me is to why it was necessary to interrogate him, (Voice Overlap).

Mr. R. Peter Shapiro: We have the broad brushstroke of the past but one of the violations of our law that is only set up in there is destroying any records which belong to the Communist Party.

Justice Potter Stewart: Did you ask him if he had done that?

Mr. R. Peter Shapiro: No, that was not asked at that time.

Justice Potter Stewart: So?

Mr. R. Peter Shapiro: We were more or less precluded by the Court at that time.

Justice Potter Stewart: Of course, if that's a crime, I suppose he could refuse to answer that on the basis of self-incrimination.

Mr. R. Peter Shapiro: Well, then it's the immunity provision --

Justice Abe Fortas: But he made -- he made no claim of self-incrimination, did he?

Mr. R. Peter Shapiro: No, that question --

Justice Potter Stewart: That question wasn't asked to him.

Mr. R. Peter Shapiro: He was asked if he wish to take the --

Justice Potter Stewart: Immunity.

Mr. R. Peter Shapiro: -- immunity provision and he declined to with reference to each question.

Justice Abe Fortas: After -- after the first DeGregory case, did Mr. DeGregory purge himself of the civil contempt?

Mr. R. Peter Shapiro: Yes, he did.

And --

Justice Abe Fortas: Now, what was the formal proceeding in which he purged himself?

Mr. R. Peter Shapiro: Yes, we went back to the Superior Court.

Justice Abe Fortas: And did you ask him some questions?

Mr. R. Peter Shapiro: We attempted to ask him more questions.

The justice at that time indicated that his jurisdiction had seized under the statute.

Justice Abe Fortas: What justice?

Mr. R. Peter Shapiro: Justice of the Superior Court, Justice Marshall.

Justice Abe Fortas: So that you asked him whatever questions were considered pertinent to that particular investigation, is that right?

Mr. R. Peter Shapiro: Well, if I might explain it.

Justice Abe Fortas: I wish you would.

Mr. R. Peter Shapiro: We went to the Superior Court at that time.

Mr. DeGregory purged himself of contempt.

The proceeding then -- we asked the Court to allow us to continue at that time before this Court.

He indicated to us that he had no further jurisdiction of the matter that we have to go back administratively and ask the question.

Then if he brought to answering any further questions then we proceeded as we did.We came up through this period --

Justice Abe Fortas: Well, did you go back administratively and ask questions?

Mr. R. Peter Shapiro: Yes, we did.

Justice Abe Fortas: Immediately?

Mr. R. Peter Shapiro: Within two days.

Justice Abe Fortas: Within two days.

Did he refuse to reply?

Mr. R. Peter Shapiro: Yes.

Justice Abe Fortas: And what happened?

Mr. R. Peter Shapiro: We're here today.

We went in the Superior -- from the --

Justice Abe Fortas: Is that this same case?

Mr. R. Peter Shapiro: Yes, that's correct, Your Honor.

We went from there to the Superior Court and at the New Hampshire Supreme Court and we're here on that very issue today.

Justice Hugo L. Black: Why do you use the word cross-examine?

Mr. R. Peter Shapiro: I use it, I think, because my brother mentioned -- used the term cross-examination.

Justice Hugo L. Black: Well, was this a cross-examination?

Mr. R. Peter Shapiro: Not technically so.

No, Your Honor.

Justice Hugo L. Black: It wasn't a cross-examination.

Justice Potter Stewart: I used that word.

I don't know if you did.

You're point is I did?

Justice Hugo L. Black: He used it --

Mr. R. Peter Shapiro: I think I did.

Justice Hugo L. Black: He used it several times before that and I was going to ask you what --

Mr. R. Peter Shapiro: I would call it.

Justice Hugo L. Black: -- what do you mean by cross-examination.

Mr. R. Peter Shapiro: Well, we asked a certain amount of -- a few questions of the witness.

He then made a statement on the record under oath that he knew nothing of the Communist Party for the last six and a half years.

It wouldn't be a technical cross-examination.

No, it would be --

Justice Hugo L. Black: Well, he had not been summoned as a witness and put on the stand by anybody else, had he?

Mr. R. Peter Shapiro: No, he hadn't Your Honor.

That's the proper term.

Justice Potter Stewart: The questions I gather on page 31 of your brief, are they?

Mr. R. Peter Shapiro: Yes, they are 31 and 32.

Justice Potter Stewart: And that's appeared to be -- what might be called direct examination.

Mr. R. Peter Shapiro: Yes.

Justice Potter Stewart: Because he hadn't testified, had he, under it?

Mr. R. Peter Shapiro: His statement was made --

Justice Potter Stewart: You called him -- you called him and he was your witness --

Mr. R. Peter Shapiro: That's correct.

Justice Potter Stewart: -- in an investigation and you asked him questions.

Mr. R. Peter Shapiro: That's correct.

Justice Potter Stewart: And those questions appear on 31 of your brief.

Mr. R. Peter Shapiro: Yes, sir.

Justice Potter Stewart: And he refused to answer him or else you covered him by asking you questions.

Mr. R. Peter Shapiro: That's correct.

Justice Potter Stewart: When, where and so on.

Mr. R. Peter Shapiro: Yes, Your Honor.

Now, I might add that Exhibit 1 which is subversive activities in New Hampshire report of the Attorney General in 1955 that all of these materials were gathered by former Attorney General Wyman and the material in there was under oath when presented to him.

Now, getting back to the concept of nexus --

Justice William J. Brennan: Now, what you mean, I gather is, that the witnesses can be called under oath.

Mr. R. Peter Shapiro: Yes, that's correct.

Justice William J. Brennan: Not the material.

It was the conclusions with this, weren't they?

If I recall that, it seems to me, I read that pretty careful a few years ago.

Mr. R. Peter Shapiro: Yes.

They are a great deal to our conclusions that somehow the --

Justice William J. Brennan: I think they were in good deal, largely though?

Mr. R. Peter Shapiro: With reference to the concept of nexus, there are --

Justice Hugo L. Black: With reference to what?

Mr. R. Peter Shapiro: The concept of nexus, the relationship of the witness to the subject under investigation.

I have cited in my brief roughly seven cases starting with the Gibson case and the rest of the Florida.

And here, we had an investigation of Communist infiltration into organizations in the race relations area.

The witness at that time was the President of the NAACP in Florida and what the State was after at that time were membership list primarily plus other information.

Now, in this case, you have this Court held that there was no nexus, basically, because the president was not a Communist -- there was no Communist tie up at all, either the president or any of the members of the party.

This is the far end of the gamut in nexus.

Sweezy case would be the next one in line which the Court did not overturn the case on the basis of no insufficient nexus.

I believe the primary thrust in this instance was the Court was not aware of whether or not the New Hampshire legislature wished to be informed on this matter.

And -- but the area or the compelling interest in this case of infil -- Communist infiltration into the area of education in New Hampshire was deemed, I believe, in that instance to be a compelling interest.

Now, the remaining cases starting with the Watkins case where it was a federal investigation at that time into the area of infil -- Communist infiltration and subversion, in this case, two prior witnesses pinpointed Watkins as a Communist.

He is a Communist recruiter from 1942 to '47, roughly eight, nine, ten years before the case finally came before the Court.

And this was considered a sufficient relationship to proceed to examine the individual and this case too was reversed but not for the reason of an insufficient nexus.

It was because the witness was unable to understand the nature of the question asked to him, the pertinency aspect which I will get in to a little bit later in my argument.

Now, the Wilkinson case and the Braden case also a federal case as in the federal were investigations of communism into the area of communism, this time by the Federal Government and again, this was considered a compelling interest to proceed with the investigation.

In both of these cases, the witnesses were not tied up as of the present time.

There was a relation back of their position in the Communist Party.

And again, we have the Uphaus case which is a New Hampshire case, a state investigation into subversion in affecting security of the State of New Hampshire and Mr. Uphaus was the executive director of the World Fellowship which was a group where 19 to 20 known Communists were meeting and discussing on what we believe more than an academic level area of communism.

We -- it was sufficient to trigger our investigation of this area, the Court held and it was a compelling interest.

Now, the key case, I think which is almost in point with us is the Barenblatt case.

In here, Mr. Barenblatt was an active member of the Communist Party from '47 to '50 while a student and a teaching fellow at the University of Michigan.

Now, this was another federal investigation into the area of subversion into education.

There was no major tie up from this individual, Barenblatt from '47 to '50 in that area to the present, the same position as DeGregory.

The record was quite espoused in that area.

Now, the Court upheld the position that there was a valid nexus between the parties in this case and this is -- this is pretty much what we have in the DeGregory case and of course --

Justice Abe Fortas: May I ask you in that connection.

Is it your position that you satisfy the first sentence of 8 (a).

Mr. R. Peter Shapiro: Yes, it is.

Justice Abe Fortas: By reason of the evidence that you have that six and a half years prior to the term of the examination, DeGregory is connected with Communist Party or was a Communist official or whatever it might be.

Is that net -- net of the position?

Mr. R. Peter Shapiro: If I might explain, I'm not -- not completely.

No, Your Honor.

What our position is as our Supreme Court held that taken the nature of the Communist Party and its motive and aims coupling this with the report of the Attorney General that the -- that our Attorney General, the present Attorney General at that time, had reasonable and reliable information to trigger his investigation into subversion in and effecting the State of New Hampshire.

Justice Abe Fortas: Now, is it your position that if he can investigate subversion that he had legal authority and legal justification for investigating a subversion but he doesn't have to make any showing whatsoever with respect to any particular individual who is called to testify?

That's not your position, is it?

Mr. R. Peter Shapiro: No, it's not our position that he have to show with reference with particular individual that he has specifically committed a crime or he is --

Justice Abe Fortas: Well, do you take the position that he does not have to show that?

Mr. R. Peter Shapiro: Yes, we do.

Justice Abe Fortas: And so from your point of view, that doesn't make any difference whether DeGregory was connected with the Communist Party or not, that is to say, if the Attorney General have general -- have some reason to believe that he is ought to invest -- he is authorized to investigate the Communist Party, he could call anybody, is that right?

The Episcopalian Minister or the Baptist Minister or the Governor of the State or whatnot, is that right?

Mr. R. Peter Shapiro: He could, providing there with sufficient nexus or relationship of the individual to the subject under investigation.

Justice Abe Fortas: That's what I was asking about.

Mr. R. Peter Shapiro: Yes.

Justice Abe Fortas: Then you do agree that he has to make some showing of probable cause for inquiring of the particular witness, that's exactly what I'm trying to --

Mr. R. Peter Shapiro: Yes.

Justice Abe Fortas: -- get in terms of the position.

Mr. R. Peter Shapiro: That he does.

Justice Abe Fortas: And the only evidence here, as I understand it, is evidence that DeGregory was a Communist official or whatnot, six and a half years prior to the time that these questions were asked, am I correct?

Mr. R. Peter Shapiro: That's correct, Your Honor.

Justice Byron R. White: Will you suggest, I suppose, that the legislature was entitled to investigate the Communist Party six and a half years ago as the basis for a continued investigation of it, don't you?

Mr. R. Peter Shapiro: I'm not sure I fully understand the question, Your Honor.

Justice Byron R. White: Well, you asked questions having to do with six and a half years ago.

You must have thought the State had a legitimate interest in finding out about the Communist Party as it existed six and a half years ago as a purview to finding out what's happened to it since that time.

Mr. R. Peter Shapiro: That's correct, Your Honor.

This is why I cited the subversive activities in Court.

Justice Byron R. White: Now, what if it -- what if you'd have information on DeGregory that he had been a member of the Communist Party of 1931 and he had said that I have not been -- you had information and he says, “I have not been a member and I'm not a member of the Communist Party now and I have not been a member in the last 30 years.”

And you said -- and then you asked him, “Were you a member in 1931?”

Is there some limit to this or not?

Mr. R. Peter Shapiro: Yes, there is and I would think this might be -- very well be the limit because of a nexus factor that --

Justice Byron R. White: When does that come?

When was that -- how can you recognize it when that line comes?

That they say, the -- the petitioner says it's come already, six and a half years is too long.

You shouldn't have to -- they shouldn't be entitled to make inquiries at all in that stale.

Would it be 10 years or 15 or what?

Mr. R. Peter Shapiro: I don't think there's any specific period.

I believe that this nexus concept is a case-by-case study of the position.

Now, if all you have was one sworn statement that an individual was a Communist in 1931 and you had nothing else, I think the State's position would be extremely weak.

Justice Byron R. White: Well, now what you have is a statement when he was a member six and a half years ago?

Mr. R. Peter Shapiro: Well, I think that relates very closely to the problem at hand.

The world conditions have not change very much.

I think it was in the mind of the Attorney General and the mind of our court when they took this into consideration that --

Justice Potter Stewart: Do you hear all the plans?

Mr. R. Peter Shapiro: Well, it's accelerated, I think.

It hasn't abated.

Justice Potter Stewart: Well, it's more of a change, doesn't it?

Mr. R. Peter Shapiro: Yes.

Justice Byron R. White: What you're really -- I suppose you're really trying to find out whether you have a problem at all with the Communist Party of New Hampshire?

Mr. R. Peter Shapiro: I would think -- assume that the legislature would want to know the extent of Communist activities in and affecting the states so that they can either possibly maybe repeal this law or add new laws, change or amend it.

It's our contention that the legislature just can't operate in a vacuum.

They have to have a basis in fact to proceed.

Justice Byron R. White: If you didn't -- as a fact there for this question, you didn't include any information whatsoever about whether there was or was not a Communist Party operating in New Hampshire at the time the questions were asked.

You just relied on an old report.

Isn't it true?

There's no evidence in the record that at the time you ask these questions that are involved here that the Communist Party wasn't -- was in existence or had any activities whatsoever in New Hampshire or even had any members there.

Is there?

Mr. R. Peter Shapiro: I have to answer by yes or no on this.

I have to go back.

I think for where starting point, with the position of our Supreme Court that it's -- its basic fundamental, I believe, the nature of the Communist movement, its ideals, its aims, its aims, its threat and I can't -- and if you take this and you couple it with the record here.

Now, I'll move myself back to the prior DeGregory case which we had and the case law has always been the same.

The position on the Communist Party had been the same and it hasn't change up to date.

The world situation with communism was known to the courts at that time and it is -- I feel accelerated somewhat.

The problem is still there.

Justice William J. Brennan: By the way, what is the world situation?

Mr. R. Peter Shapiro: In 1960?

Justice William J. Brennan: Today.

Mr. R. Peter Shapiro: Well, we have Vietnam problem.

We have a Berlin Wall.

Communism is --

Justice William J. Brennan: At the same time, we have Communist problem today as we had 10 years ago?

Mr. R. Peter Shapiro: 10 years ago, no.

I'm relating to this to the (Voice Overlap) with Korea 10 years ago.

Justice Byron R. White: Do you think things got worst?

Mr. R. Peter Shapiro: I think it is.

Justice Potter Stewart: What about New Hampshire's interest, I mean, what's the State of New Hampshire's interest in the Vietnam problem?

Mr. R. Peter Shapiro: Directly, I would say very little, indirect.

Collectively to the people it's very little.

Directly to cer -- to various individuals it might be great.

I'm use -- citing the Vietnam problem -- these problems that -- this is what must have been in the minds of our Attorney General.

The courts I feel, our New Hampshire courts can't blind themselves to world's condition.

They can't operate in a vacuum the same as the legislature there.

Justice Hugo L. Black: I thought your argument was awhile ago which is wrong that what you have interested in was the self-preservation of New Hampshire from being destroyed and now you're going to world conditions?

Mr. R. Peter Shapiro: Well, self-preservation --

Justice Hugo L. Black: Is there any indication for the last six and a half years that you have any Communist in New Hampshire that you know about as the record shows?

I'm talking about New Hampshire.

Mr. R. Peter Shapiro: As far as the records go, there is no evidence as of that.

Justice Hugo L. Black: Pretty hard to find and to keep the job going, isn't it?

Justice Potter Stewart: As if the -- people are not going to be -- are going to be permitted not to refuse to answer all the questions of the subject.

You're not going to have any information.

Mr. R. Peter Shapiro: But that bear in mind is the problem.

We do, I might add, make a report to the legislature every year, every other year explaining what our findings are.

We have not made a --

Justice Hugo L. Black: What is the report last year about how many Communists you had last year?

Mr. R. Peter Shapiro: Pardon?

I did not --

Justice Hugo L. Black: What is the report last year about how many Communists you have been able to detect in New Hampshire last year?

Mr. R. Peter Shapiro: Quite frankly, I didn't make the report.

Justice Hugo L. Black: What?

Mr. R. Peter Shapiro: I didn't make the report.

If you allow me a moment, I would --

Justice Hugo L. Black: Well, I imagine that it's a matter of common knowledge, if you reported that you're about to be overthrown last year by the Communists and you have to --

Mr. R. Peter Shapiro: Well, we've -- in light of Justice Brennan's opinion in the Uphaus case we have not made a formal report.

The report is made basically to committee and the committee takes it from there.

With the information available in our files that we would present a formal report if required.

Justice Tom C. Clark: What's the legislature done about it?

Mr. R. Peter Shapiro: The legislature has felt that the law which we have is operating well and that they intend to keep it as such.

Justice Tom C. Clark: And then Machiavelli in '55 of course.

Mr. R. Peter Shapiro: Yes, they did because that's when they made it a continuing operation after '55 and '57.

Justice Tom C. Clark: You know that that's been -- you did not enact a substantive law.

Mr. R. Peter Shapiro: No.

There was a bill before the House last year but it was defeated with reference to Communist speaker to state institution.

Similar law which I think South Carolina has.

Justice William J. Brennan: Would that suggest that your legislature doesn't think there's much of a danger existing in New Hampshire?

Mr. R. Peter Shapiro: I wouldn't think so because the nature of the law that I think got blown out of proportion by political problems involved, side issues and personalities as opposed to the actual need of the law.

Justice Tom C. Clark: For reindictment what you have said, if I understand, the purpose of you to inform a legislature --

Mr. R. Peter Shapiro: That's correct.

Justice Tom C. Clark: Perhaps you're investigating?

Mr. R. Peter Shapiro: That's correct.

Justice Tom C. Clark: You made in the court's term a rather comprehensive report 7 years ago and (Inaudible) probably continued by the committee.

I just wonder what your accomplishments are.

Mr. R. Peter Shapiro: The prophecy would be, I feel legislatively.

I feel the state is doing a proper job in this area and they are being properly informed on the present state of the record and the present state of the facts which we have that there's no necessity to change the law.

Now, if I might add with reference to --

Chief Justice Earl Warren: How many -- may I ask this?

How many other witnesses were called by the committee at or about the time Mr. DeGregory was called, if any?

Mr. R. Peter Shapiro: Possibly half a dozen witnesses or so at that time.

Justice Abe Fortas: Was that at the time that DeGregory was called initially or later?

Mr. R. Peter Shapiro: I believe the question was directed to -- at the time of the second hearing, 1963.

Justice Abe Fortas: That's your answer.

Mr. R. Peter Shapiro: Yes.

Chief Justice Earl Warren: Where we find that in the re -- where do we find that in the record?

Mr. R. Peter Shapiro: No, you will not find that.

Chief Justice Earl Warren: Is there any record made of that by the committee for the use of the legislature?

Mr. R. Peter Shapiro: It would be in our file.

Chief Justice Earl Warren: There's no report of any kind?

Mr. R. Peter Shapiro: No, there's no written report, no.

The procedure has been for the Attorney General to go before the committee and orally present the basic facts at that time as requested it would be.

Again, we do have a problem with gathering this information by the reluctance of the witnesses to testify and also, our files -- well we have no access to the files that any of the federal agencies with the information which they have in this area that all on our own basis, we have to go out and gather this information.

Justice Tom C. Clark: Do you think counsel that the citation of the prosecution derived out of the other states applied here?

Mr. R. Peter Shapiro: Not to my knowledge.

Justice Tom C. Clark: (Inaudible)

Mr. R. Peter Shapiro: I believe so.

Justice Hugo L. Black: Would we be able to assume of the fact that nothing has been done during this last six and a half years.

Legislature has done nothing.

The New Hampshire is not in extreme imperative danger of being overthrown at this time?

Mr. R. Peter Shapiro: Well, I think you have to look at it from the position as I cited in my brief.

The threat is not like the horse of the Mongols coming out of the woods and overthrowing our State.

The problem is the nature of the Communist Party, the infiltration of the probing.

Justice Hugo L. Black: But the problem, I suppose, was the basis of your legal right to do this is, as I understood you to say, that the right of New Hampshire to preserve itself from destruction.

Mr. R. Peter Shapiro: That's correct.

Justice Hugo L. Black: And would we be have a right to assume that there's no immediate likelihood of that destruction by the fact that you haven't found anybody and haven't found the five witness even to ask questions during the last six and a half years.

Mr. R. Peter Shapiro: I wouldn't -- I wouldn't think so.

No, Your Honor.

Chief Justice Earl Warren: Mr. Whiteside, do you --

Rebuttal of Howard S. Whiteside

Mr. Howard S. Whiteside: No, Your Honor.

I think I've exhausted my time.

Chief Justice Earl Warren: Well, I thought you had a minute or so, if you want to respond.

Mr. Howard S. Whiteside: I -- I have no further comment.

Chief Justice Earl Warren: Yes.

Very well.

Featured:

Wheeldin v. Wheeler - Oral Argument

Tue, 25 Sep 2012 22:35:57 +0000

Case:

Wheeldin v. Wheeler

Media File:

493_19630423-argument

Related Transcript:

493_19630423-argument

Transcript:

Argument of A. L. Wirin

Chief Justice Earl Warren: Number 493, Donald Wheeldin and Admiral Dawson, Petitioners, versus William Wheeler; Mr. Wirin?

Mr. A. L. Wirin: Mr. Chief Justice, may it please the Court.

The issues raised by the instant petition as the petitioners view it are two.

First, whether or not, the District Court, and I say District Court for the Southern District of California, had jurisdiction to adjudicate the issues raised by a suit filed in that court and secondly, whether or not, the complaint states a cause of action warranting relief or requiring the trial on the merits.

The complaint which I can summarize very quickly is in behalf of two persons, both of whom were subpoenaed to appear before the House Committee on Un-American activities.

The defendant below, the respondent here, is an agent of that Committee, is the investigator for that Committee in California and the complaint recites in effect that the respondent secured or issued subpoenas against the petitioners for the purpose of harassing them and that particularly with respect to the petitioner Admiral Dawson.

And I may say the only public official in this case is the respondent, Wheeler, the petitioner, Admiral Dawson is not a public official.

He is -- the Admiral is merely his first name.

Be that as it may, with respect to that petitioner that the complaint alleges that the respondent, Wheeler, arranged for the process to be served at Admiral Dawson’s place of employment with the intention that such service would result in a loss of employment and that as a result of such service at that place and for that purpose in actual fact, Admiral Dawson did lose his employment through this damage of course.

The complaint as filed in the District Court sought both equitable and relief, and relief at law.

It sought a declaratory judgment as to the validity of the subpoena and additionally sought damages on -- because of the manner of the service of the subpoena and the nature of the subpoena.

Chief Justice Earl Warren: Mr. Wirin.

Is your case --

Mr. A. L. Wirin: Yes, Your Honor.

Chief Justice Earl Warren: Is the case of Wheeldin before us?

Mr. A. L. Wirin: No.

Well, let me come.

I -- I'll answer Your Honor's question right now that I had intended to do so in a moment.

The petitioners, or the petitioner Wheeldin, has determined to withdraw his petition with a certiorari and asked leave of Court to do so and has so stated in the preliminary statement in the reply brief.

We have done that because we feel that the damages to the petitioner, Wheeldin, are not substantial.

The jurisdictional statute requires damages in a sum of $10,000 and also there are some problems in res judicata which is raised by the Government which we think unnecessarily obfuscate or deviate the central issues so that, if Your Honor's grant a leave of court to the petitioner, Wheeldin, to withdraw his petition, the only petitioner remaining is the petitioner, Dawson, and the only matters which are at issue pertain to the petitioner, Dawson.

And I shall address myself, my oral argument exclusively to the issues as raised in the complaint in connection with the petitioner, Dawson.

Now, I brief -- further word by way of -- of the -- of the history of the -- of the proceedings below because that would, which I will now state, will -- I think, tell some light upon the import of certain concessions made by the Solicitor General in his brief, concessions which are to the petitioner of a considerable consequence.

When the suit was first filed, the respondent through a licensed attorney and special counsel retained for the respondent by the Congress, by the House Representatives, urged that the Court have no jurisdiction.

The trial court agreed with that view, but upon appeal, the Court of Appeals reversed the judgment and took the view that there was jurisdiction in the trial court.

From that ruling by the Court of Appeals, the first decision that government took no -- sought no review in this Court.

In any event, at the second round, when the matter was remanded to the trial court, the Government then took the view that the complaint didn't state a cause of action.

The trial court sustained that position granting a motion to dismiss.

And that position was posited on the claim that the respondent Wheeldin, was -- had complete, absolute immunity from liability under Barr versus Matteo, the decision of this Court that a public official in some circumstances when he commits an alleged libel, he's absolutely privileged.

Before the Court of Appeals, the sole basis for the Government's contention was the claim of absolute immunity and the sole basis for the cause of ruling was absolute immunity.

In this Court, however, and this is what I'm getting to now, with respect to the petitioner, Dawson, the Government recedes from that contention made in the courts below upon which the courts below rendered its judgment.

And it concedes that as to the petitioner, Dawson, the -- to the respondent, Wheeldin has no absolute immunity that the complaint alleges -- now, I'm stating my own view of the matter, that the complaint alleges that the respondent, Wheeler, secured subpoenas without the knowledge of the Chairman of the Committee or so far as the complainant is concerned, without the knowledge or approval of any member of the Committee.

And I state to Your Honors now, so that Your Honors will understand what I'm saying at -- state in the context.

The applicable federal statute is a resolution by the Congress which is now designated by the House as Rule IX, which authorized -- which of course is set forth in the -- in our briefs, that resolution authorizes the Committee to hold hearings and with respect to the issue in subpoenas, expressly provides that only the Chairman of the Committee, or the Chairman of a subcommittee, or a member of Congress who was the Chair -- who is a member of either of this committees especially designated by the Chairman of either Committee may issue subpoena.

And so, the Government in this case, on the merits, concedes that the defendant, Wheeler, as alleged in the complaint and that is all there is before this Court for the trial court sustained a motion to dismiss, that the defendant, Wheeler, exceeded his authority and acted beyond his statutory powers.

And in effect -- now, I'm just paraphrasing it and using my own understanding of it, the Solicitor General will of course explain the position of the Government.

In effect, the Government concedes, as we view it, liability on the part of the defendant, Wheeler, but urges that -- that libel should be determined in the state court rather than the federal court on the ground that there is no federal claim stated.

Now, one further -- one further --

Justice Arthur J. Goldberg: How do you concede that there was no cause of action?

Is the -- do you concede that there was a cause of action you're arguing under state law?

Mr. A. L. Wirin: Yes.

Justice Arthur J. Goldberg: And do you concede that it's a cause of action, your argument on federal law?

Mr. A. L. Wirin: We concede it as a cause of action arising solely and entirely under federal law, having no basis in or rooted in any state law and for the following three reasons.

In the first place, we say that it arises under a law in the Constitution of the United States, certainly within the concepts announced just recently by this Court in a unanimous decision written by Justice White a week ago or yesterday.

First, because it's -- the cause of action stems from the -- a law of Congress namely, the resolution of a House, namely Rule XI, under which this Committees function.

And we say that probably construed that statute, barred the respondent Wheeler from issuing a subpoena without any authorization or without any knowledge of any member of the -- of the Committee.

And that impliedly the statute having imposed an obli -- an obligation upon the respondent not to issue a subpoena, conferred a right upon the petitioner to be free from that kind of the exercise of excessive authority by an agent of the Committee, but more than that, we say that the cause of action arises under the Constitution of United States.

I already talked about the law of United States, the jurisdictional statute, Your Honor, Section 1331, 28 U.S. Code, conferred jurisdiction upon the federal courts where a claim arises either out of the law or out of the Constitution.

And with respect to the matter--

Justice Byron R. White: [Inaudible]

Mr. A. L. Wirin: Well, we rely primarily upon the Fourth, but also upon the Fifth and the reasons for our reliance upon the Fourth but that -- of the --

Justice Byron R. White: What's -- what's -- what's subdivision of the Third?

Mr. A. L. Wirin: The Due Process Clause.

First, with respect to the Fourth, which of course is a broad guarantee against unreasonable searches and seizures, the Government makes the argument here that the Fourth Amendment is directed exclusively against the use of the securing of evidence or seizure through physical force only.

And we agree, of course, that the service of the subpoena per se is not the exercise of physical force similar to the seizure of a person through his imprisonment, or the seizure of books and papers which are the result of the -- of the search of man's defects.

On the other hand, this Court to -- seems to us has clearly decided generations ago, in Boyd versus United States, and as recently reaffirmed the view that a subpoena duces tecum, which is too broad in its scope violates the guarantees of the Fourth Amendment.

Justice Byron R. White: The service of it?

Mr. A. L. Wirin: The issuance and service of it.

Justice Byron R. White: That's all?

Mr. A. L. Wirin: That's all and that a person who claims that the subpoena on its face is too broad, may challenge the subpoena and tell me successfully, if you convince -- you can convince the Court it's too broad, merely because of the issuance of a subpoena on the ground that the subpoena duces tecum on itself prior to the actual seizure of the records which are the subject matter of the subpoena is too broad.

So that we think Your Honors have not extended, but have recognized the principle that a broad subpoena may violate the Fourth Amendment.

Justice Byron R. White: Duces tecum?

Mr. A. L. Wirin: Duces tecum, yes.

Now a subpoena not --

Unknown Speaker: [Inaudible]

Mr. A. L. Wirin: This is the --

Unknown Speaker: Duces tecum?

Mr. A. L. Wirin: It was not.

It was the plain subpoena, subpoena against [Inaudible]

Chief Justice Earl Warren: Do I understand Mr. Wirin that the Government admits that this was an invalid subpoena?

Mr. A. L. Wirin: It admits that the respondent exceeded his authority in securing the subpoena in the manner set forth in the complaint, and it so admits it, in its brief on page -- on pages 31 and 32.

Justice Arthur J. Goldberg: [Inaudible]

Mr. A. L. Wirin: So -- yes, it did.

Justice Arthur J. Goldberg: [Inaudible] -- what the Government says is that [Inaudible].

Mr. A. L. Wirin: Yes.

Justice Arthur J. Goldberg: And as alleged.

There you'd have to say that it's not valid to say the words that the [Inaudible] is out of the court?

Mr. A. L. Wirin: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. A. L. Wirin: Oh, indeed.

I misstated myself.

What I meant was, that the matter being before Your Honors upon a motion to dismiss the complaint where the allegations of the complaint are deemed to be -- deemed to be true for the purposes of the motion to dismiss.

That's all I meant, of course.

The Government doesn't concede the matter on the merits.

And indeed I -- all our -- all we desire is if we're successful or if we're lucky is a ruling from this Court that the petitioner is entitled to a trial and to be given an opportunity to prove the allegations in the complaint.

Justice Byron R. White: But that is also in Barr and Matteo [Inaudible]?

Mr. A. L. Wirin: Precisely.

Justice Byron R. White: And [Inaudible]

Mr. A. L. Wirin: Well, I think it makes a difference so far as the petitioner's case is concerned.

I think also to answer Your Honor's question a little bit more directly, I would view it that a person who is a public official clothed with authority and there is no question the respondent was that and represents one of the great agencies of the Government, the Congress of the United States --

Justice Byron R. White: Well, do you agree with the Government's reading in the complaint that you allege that this man knew and should've known through the proceedings authority that he had no authority to service --

Mr. A. L. Wirin: I agree with that -- with that interpretation of the complaint -- about the complaint.

Justice Byron R. White: [Inaudible]

Mr. A. L. Wirin: I don't always agree with Government but I do when a --

Justice Byron R. White: [Inaudible] -- how was he distinguished -- how was he distinguished [Inaudible]?

He knew he wasn't acting through a Government's official [Inaudible]

Mr. A. L. Wirin: Oh, oh, all right.

Now, let me just -- I think I have nothing to answer Your Honor's question.

Now, I admit that I had to do so.

So far as liability is concerned -- I -- there would be no difference in view of the Government's statement whether he was a pri -- or just a person acting as one who try to commit a joke or was acting seriously --

Justice William J. Brennan: Oh, would you have a -- would you have --

Mr. A. L. Wirin: But --

Justice William J. Brennan: [Inaudible]

Mr. A. L. Wirin: But -- but --

Justice William J. Brennan: [Inaudible]

Mr. A. L. Wirin: Precisely, precisely.

But if he were not acting under color of authority, and if he were not undertaking to act for the Committee --

Justice William J. Brennan: [Inaudible] employee.

Mr. A. L. Wirin: Yes.

We're --

Justice William J. Brennan: While a federal employee, [Inaudible]

Mr. A. L. Wirin: Exactly.

Justice William J. Brennan: Who acted outside the scope of his authority?

Mr. A. L. Wirin: Precisely.

And it's because of that--

Justice Byron R. White: [Inaudible] -- isn't it -- if we go too far this brings us jurisdiction --

Mr. A. L. Wirin: Well, I don't want to go that far.

[Laughter] I don't want to go that far but -- but I think it's clear, both from the allegations in the -- in the complaint and from the -- and from the contentions of the parties in this case, that the respondent at all times was a person in the employee of the Congress and undertook to act before the Congress and was acting under color of authority and the petitioners make no contention or suggestion to the contrary.

And so in short, we say, because of that -- that the state court, that the federal court had jurisdiction that the matter is not within the jurisdiction of the state court at all, and even if it were within the jurisdiction of the state court and had been filed in the state court, the Government would have a right under the removal statute to remove it to the federal court where the issues would be tried and -- but we say that the court, District Court had (a) jurisdiction and (b) should have denied the motion to dismiss so that the case could be tried in the federal court on the merits to adjudicate it, the controverted issues of fact.

Chief Justice Earl Warren: Mr. Rosenthal.

Argument of Alan S. Rosenthal

Mr. Alan S. Rosenthal: Mr. Chief Justice, may it please the Court.

As Mr. Wirin has indicated, in this case, the petitioner, Dawson, sought to invoke the jurisdiction of a Federal District Court to recover damages from the respondent an employee of the Congress for an alleged violation by respondent of certain constitutional rights of the petitioner, basically, the Fourth Amendment.

Now, we think it's important to bear in mind at the outset that the conduct complained of amounted to nothing more than the issuance, purportedly unauthorized issuance, by the respondent of a subpoena ad testificandum, directing that the petitioner appear at a hearing of the Committee of the Congress and give unprivileged testimony.

There is no claim in this case by the petitioner, nor could there be, of any action on the part of the respondent beyond the mere issuance of this assertedly unauthorized subpoena, or for that matter of any action on the part of the petitioner in response to the subpoena.

Dawson, not only did not testify, but he did not even appear at the Committee's hearings.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Alan S. Rosenthal: Because Your Honor, there's no allegation in this complaint that there was any appearance or any action on the part of the petitioner in response to the subpoena.

We've --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Alan S. Rosenthal: That's right, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Alan S. Rosenthal: That's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Alan S. Rosenthal: That's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Alan S. Rosenthal: That is -- that is correct.

There is an allegation of economic loss.

Of course, I would stress to Your Honor that the question as to whether there's been an infringement of a constitutional right is determined in the first instance by the conduct which is charged, not by the fact that there may or may not be economic injury.

There are a lot of -- there's a lot of torturous conduct which results in injury, which by no stretch to the imagination could be regarded as involving an infringement of the constitutional right.

In this case, we submit, in view of the allegations of this complaint, the petitioner's constitutional claim is wholly insubstantial.

Now, I would like at this point to correct one statement which Mr. Wirin made.

The argument which we are advancing in this Court was advanced in the Court of Appeals, the argument that the constitutional claim was insubstantial.

The Court of Appeals to be sure, decided it not on that ground but on the ground of the applicability of Barr against Matteo which as Mr. Wirin correctly points out, the Government does not rely on with respect to the one remaining petitioner in this case in this Court.

It would be pointless -- most certainly may in the brief which was filed below on behalf of the respondent.

Now, we say that this constitutional claim is wholly insubstantial because even if it were to be assumed that there is a right to damages for a violation of the Fourth Amendment, this was the question which this Court left open in Bell against Hood, we think that the amendment cannot possibly be read as granting protection against being required to appear and give testimony to a legislative, judicial or administrative body, or granting a claim to one who in fact, some of the allegations of the complaint neither testified nor appeared.

Now, notwithstanding this insubstantiality, we do not urge that the District Court was without jurisdiction to entertain petitioner's complaint under 28 U.S.C. 1331.

As we read this Court's decision in Bell against Hood, it is of no moment in the resolution of the jurisdictional issue that the complaint does not state a claim upon which relief can be granted under the constitutional laws of the United States.

The Court held that whether or not a valid cause of action is stated where the complaint is drawn as it is here, as to seek recovery directly under the constitutional laws of the United States, the federal court must entertain the suit.

Now, there was some indication in Bell against Hood that there might be an exception where the alleged constitutional claim is either clearly immaterial or wholly insubstantial.

But the court went on to suggesting Bell and again in Baker against Carr that it is doubtful at dismissals on these grounds, but insubstantiality, it could properly be considered as jurisdiction.

And as for this reason, again, we do not in response to the question which the Court posed at the time that it granted certiorari, we do not urge that the District Court was without jurisdiction.

Rather we suggest that the complaint was appropriately dismissed for the failure to state illegally cognizable claim.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Alan S. Rosenthal: That's right.

But as long as his complaint is drafted so as to be based, you see, the right to recover to be based upon the Constitution or the laws of the United States, there is federal jurisdiction irrespective of how insubstantial the claim may be.

At least, this is the way that we read Bell against Hood and the way indeed that the Ninth Circuit read it.

Justice Hugo L. Black: What is the ground on which you say you distinguish and say that this one should have been dismissed for what reason?

Mr. Alan S. Rosenthal: In this case, for the fairness to state a claim upon which relief could be granted in an action in a Federal District Court where jurisdiction rested necessarily upon Section 1331 of the judicial code.

Justice Hugo L. Black: You mean failed to state the cause of action?

Mr. Alan S. Rosenthal: That's right.

Fail to state a claim under the laws of the United States or the Constitution of the United States.

Justice Hugo L. Black: Failed to state a cause of action.

Mr. Alan S. Rosenthal: That's correct.

Whether it's a state -- cause of action or a claim upon which relief could be granted.

Justice William J. Brennan: And I gather you're relying on -- what suit is the civil rule, 12 or something rather, isn't it?

That permits, what, dismissal for failure to state a cause of action?

Mr. Alan S. Rosenthal: Yes, I think so.

I think --

Justice William J. Brennan: Is that what you are relying?

Mr. Alan S. Rosenthal: That's correct.

Now, we submit if the Court pleases, that insofar as the claim is asserted under the Fourth Amendment, that we think that the history of the amendment, its terms and its interpretation by this Court, all compel the conclusion that the Fourth Amendment does not reach the issuance of a subpoena ad testificandum.

With respect to the history of this amendment, the background of the Fourth Amendment has many times been discussed by this Court as recently as in Frank against Maryland.

As the Court has noted, the Fourth Amendment had it's genesis in the infamous general arrest and search warrants which were prevalent in Great Britain in the 18th century.

And their colonial counterpart, the general writs of assistance which were employed principally in the colony of Massachusetts Bay for the purpose of the enforcement of the revenue laws.

Now, as it was made clear in both Lord Camden's opinion in Entick against Carrington which this Court has many times referred and which held that the English warrants were invalid and the famous argument of James Otis against the Colonial Writs of Assistance, the fundamental vice there involved to which the Fourth Amendment was directed was the denial of two essential liberties.

The first of these liberties was the right of privacy in one's home, one's possessions and one's papers.

The second was the denial of the freedom from preemptory arrest and detention without probable cause.

And both the English general search warrants and the Colonial Writs of Assistance offended one or both of these essential rights.

The -- of the first American precedence of a constitutional character for the Fourth Amendment was the Virginia Bill of Rights of 1776.

Both its Article 10 which condemn general search and arrest warrants oblivious in the press and the like constitutional provisions which were adopted in six other states in the period between 1776 and 1784 reflected against a concern only for the privacy in one's residence and possessions for freedom from unreasonable arrest and complaint.

Now, these we submit, are rights involving interests which are markedly different and considerably more important than those which would be affected by an unauthorized order to appear and testify at an unprivileged matter.

We think that the terms of the Fourth Amendment confirmed that it was not intended to protect witnesses from being compelled to testify.

Testimonial compulsion, we submit plainly does not involve the right of the people to be secure in their person's, houses, papers and effects against an unreasonable search and seizure.

Similarly, the issuance of the subpoena ad testificandum is by no means an arrest or in the terms of the amendment, the seizure of a person.

What the amendment protects against the net context is the immediate detention of the individual under a forced -- under threat of force or under the assertion of some legal right to detain the person at once not the direction that the person appear at some future date to give testimony before a judicial legislative or administrative tribunal.

Justice John M. Harlan: In saying that, you've drawn out a distinction between a case where the witness doesn't testify -- actually testified or where he does?

Mr. Alan S. Rosenthal: That's -- well, we're dealing of course here Mr. Justice --

Justice John M. Harlan: And before the --

Mr. Alan S. Rosenthal: -- Harlan with the merely issuance of the subpoena and that is all that Mr. Wheeler is charged with.

And the issuance of the subpoena directing the recipient to appear at some future date to give testimony before a Committee of the Congress before a judicial body that in and of itself is not immediate detention and it's never been regarded as being an arrest.

We refer --

Justice Byron R. White: [Inaudible]

Mr. Alan S. Rosenthal: If he appeared and refused to testify on the basis of the Fourth Amendment, well then at that point, since the claim at least in our view would be entirely substantially, would be subject to that point of arrest.

Justice Byron R. White: [Inaudible]

Mr. Alan S. Rosenthal: No, Your Honor, because in that instance, if he were arrested, he would not --

Justice Byron R. White: I'm saying [Inaudible] it's his right not to testify with the basis of the Fourth Amendment.

Is that the same question that's involved from -- whether or not the services of warrant or service of the subpoena violates the [Inaudible] --

Mr. Alan S. Rosenthal: I don't think so.

Chief Justice Earl Warren: In other words, your case would be no different if he had appeared before the Committee.

Mr. Alan S. Rosenthal: Precisely Your Honor.

On this phase of our argument, we do point out in -- another phase of our argument is this that even if you could say that the -- directing of somebody to appear to testify was a search or constituted an arrest.

In this case, since the individual neither appeared nor testified, there would plainly be no search or seizure even if the terms had that broad meaning.

That even if again, even if you were to assume that the Fourth Amendment would reach this type of subpoena in the absence of demands that are actually responding to this subpoena appearing to give testimony, there plainly could be no Fourth Amendment violation.

This is no different we would think as we've suggest in our brief in the situation where an officer with a totally unlawful search warrant were to appear at a man's home and demand admission and the man was to turn him away from the door.

In that case, so we would submit, there would be plainly no basis for any action against the officer because in point of fact no search or seizure took place.

By the same token here, even if the Fourth Amendment applied to subpoenas ad testificandum which it doesn't there would be no claim stated under the Fourth Amendment because there was no appearance and no testimony was given.

Chief Justice Earl Warren: But what I want to get clear in my mind is if you -- you were giving us the history Mr. Rosenthal of the Fourth Amendment.

And you said that the mere service of a subpoena would never contemplate it by the -- those who drafted the Amendment.

Now, could you say exactly the same thing if he had appeared and testified?

Mr. Alan S. Rosenthal: That's correct.

Chief Justice Earl Warren: That's -- that's --

Mr. Alan S. Rosenthal: That is correct.

The subpoena ad testificandum, we're again only talking about a --

Chief Justice Earl Warren: Yes.

Mr. Alan S. Rosenthal: -- testifying subpoena --

Chief Justice Earl Warren: Yes.

Mr. Alan S. Rosenthal: -- as it were.

Chief Justice Earl Warren: Yes.

Mr. Alan S. Rosenthal: Now, this brings me, if the Court pleases, to this Court's prior decisions in this area.

Justice Byron R. White: [Inaudible] -- this whole affair is illegal, it's in violation of the Fourth Amendment, he won't answer a thing.

Then he's arrested.

His Fourth Amendment rights then [Inaudible] --

Mr. Alan S. Rosenthal: Absolutely --

Justice Byron R. White: -- as to that point.

Mr. Alan S. Rosenthal: I would say, absolutely not.

Justice Byron R. White: Why?

Mr. Alan S. Rosenthal: The -- because in --

Justice Byron R. White: Assume for the moment that you concede that subpoena in the first place is illegal, [Inaudible] --

Mr. Alan S. Rosenthal: Well --

Justice Byron R. White: But you do I take it if this -- for the purpose of this --

Mr. Alan S. Rosenthal: For the purpose of the case.

Well, now, I think we've got of course two questions.

This -- the first question is whether his rights have been violated by the individual who issued the subpoena.

That's plain enough and we're assuming that he appears before the Congressional Committee and he's asked these questions and he stands on the Fourth Amendment and he is then subject to arrest by the Committee itself or by the -- and the arrest is presumably effected by United States Martial.

Now in that case, there would be no conduct possibly on the part of the respondent here given that sequel to the issuance of the subpoena here which could be regarded as an invasion of any Fourth Amendment right on his part, because the arrest --

Justice William J. Brennan: But why is this -- on the theory of waiver or something or because he responded to the subpoena and showed up, what was it?

Mr. Alan S. Rosenthal: No.

Justice William J. Brennan: Waive it or what?

Mr. Alan S. Rosenthal: No, it wouldn't be the waiver but that it would be that the Fourth Amendment again is directed to the protection of the right of the individual to be secure in his person.

Justice Byron R. White: Well, he isn't very secure after he's arrested.

Mr. Alan S. Rosenthal: But his -- the lack of security after he is arrested if the Court pleases, is not because of any action on the part of the issuer of the subpoena.

All that has transpired in this case suppresses that the respondent issued this piece of paper which directed him to appear.

Now, if subsequently he appears that --

Justice Byron R. White: When he didn't have to?

Mr. Alan S. Rosenthal: When he didn't have to.

Justice Byron R. White: That he didn't have to answer any questions then?

Mr. Alan S. Rosenthal: Then if he is arrested, if he is arrested at this juncture, if there is a violation of the Fourth Amendment, the violation is on the part of the people who arrested him.

Justice Byron R. White: Well, but if -- but the rights that has been violated are his Fourth Amendment rights.

Mr. Alan S. Rosenthal: Well, is a possibility in those circumstances of a violation of the Fourth Amendment.

On the other hand, in the hypothetical that you pose Mr. Justice White, it -- it would seem to me that his -- he would have absolutely no cause of action because there would be no substance to his claim whether these -- that -- based upon the Fourth Amendment.

Now, in the area of testimonial compulsion, this Court has established in the series of opinions the applicability of the Fifth Amendment's protection against self-incrimination, quite recently in NAACP against Alabama, the First Amendment's protection of the right of association and of course it also held sometime ago in the -- in Kilbourn against Thompson that the witness is immunized from testifying in circumstances where the congressional inquiry does not have a valid underlying legislative purpose.

But it's never been suggested to my knowledge, if Your Honor pleases, that the testimonial compulsion at any stage of the procedure is subject to the guarantee of the Fourth Amendment.

Now, the Fourth Amendment has come in as was noted earlier in connection with the subpoena duces tecum.

And as Mr. Wirin correctly points out, this Court has held that a subpoena duces tecum is within the ambit of the Fourth Amendment.

Justice Hugo L. Black: What was the basis of that?

Mr. Alan S. Rosenthal: The basis of that holding was that a subpoena duces tecum can accomplish the substantial objects of a forcible entry into a man's house and a search of his papers.

Justice Hugo L. Black: Its -- it was based was it on the fact that it was summoning him to bring those papers was equivalent to compulsory production of papers --

Mr. Alan S. Rosenthal: That's right.

Justice Hugo L. Black: -- to make the nonproduction of them, a confession of the allegation which pretended they were proved.

Mr. Alan S. Rosenthal: That's right.

But it was in the --

Justice Hugo L. Black: But here, suppose a man is summoned to appear in a wholly wrongful summoning, he does not appear, what happens to him?

Mr. Alan S. Rosenthal: At this point Your Honor, if he does not appear, he would be at that point subject to trial on the question as to whether or not his failure to appear --

Justice Hugo L. Black: You mean, you're using it less euphoniously, euphemistically that he would then be subject to be prosecuted for failing to appear.

Mr. Alan S. Rosenthal: That's right but he would have it --

Justice Hugo L. Black: And in the Boyd case, I'm trying to get whether there any distinction, in the Boyd case, tell not the mere facts, he would get those papers later that he was trying to get those papers.

But when they summoned him to get them with the knowledge that if he didn't produce them, he could be prosecuted, they had violated his rights.

Mr. Alan S. Rosenthal: Boyd case, if Your Honor pleases, was com -- wholly, we submit, in the context of the fact that it is papers or possessions of the individual which are being --

Justice Byron R. White: They're more important than the person themselves?

Mr. Alan S. Rosenthal: They're not more important Your Honor than the person itself.

There are protections --

Justice Byron R. White: Well, the one they -- compelled him to bring the document and the other -- tell them to bring himself?

Mr. Alan S. Rosenthal: Well, in the -- I don't think it's a matter of relative importance.

It's a -- it is a matter of the -- being regarded traditionally, being regarded traditionally that a man has this right to privacy in his papers and in his possessions.

Now, insofar --

Justice Hugo L. Black: But why do you keep emphasizing privacy?

The First Amendment, the Fourth Amendment does not use the word privacy.

Can you either reduce or expand the scope of the First Amendment by taking in however much has been used, the word privacy in substituting it for the language of the Fourth Amendment.

Mr. Alan S. Rosenthal: Well, Your Honor, the -- we would submit that the underlying thought in the Fourth Amendment was that of privacy.

Justice Hugo L. Black: That's one of the reasons.

Mr. Alan S. Rosenthal: And --

Justice Hugo L. Black: It's one of the many.

It would be quite a different amendment would it not if it had said a man's right of privacy shall not be invaded?

Mr. Alan S. Rosenthal: Well, it is a man's -- if Your Honor pleases, it is, it seems to us in effect certainly that the Fourth Amendment is addressed to the man's right of privacy in his papers and his possessions.

It is that -- that you -- the --

Justice Hugo L. Black: It's addressed in its language that its unreasonable search and seizure, search for those papers and the unreasonable seizure of -- then you have to pass on it.

It maybe that the facts it's a particular type of thing its done would be -- consider them to -- determining whether or not it's reasonable.

But it seems to me that there'd been much talk about the privacy which tends to reduce the value of the Fourth Amendment, to limit it to that on the one hand.

And on the other hand, tends to expand it to a vaguely indefinite field where nobody knows what it's about.

Mr. Alan S. Rosenthal: Well, we --

Justice John M. Harlan: Have a lot of these [Inaudible] cases up here and I'm just trying to think perhaps I'm wrong but you can correct me.

I can't think of any case where it's been -- counsel has suggested that if he was -- that his client was asked to come before the Un-American Activities Committee or subpoenaed that he had a claim under the Fourth Amendment to resist answering.

Mr. Alan S. Rosenthal: We -- Your Honor know -- not only know of no such case of that kind but we know of no such case where it has been suggested either in the context of a Congressional Committee proceeding, a judicial proceeding or an administrative proceeding that there is a Fourth Amendment right involved in directing the man to appear and give testimony.

Unknown Speaker: That's the --

Mr. Alan S. Rosenthal: This is the first case.

Now, in the area of congressional investigations, the first congressional investigation took place in 1792 when Congress sought -- set up a committee of seven of its members, the House of Representatives with full power to call persons and to seize papers and that investigation was in the connection with Major St. Clair's disastrous invasion against the Indians in the Northwest Territory when that's -- since that time as -- until this case as of any suggestion that the Fourth Amendment has any bearing whatsoever to being called to give testimony and we would again submit that insofar as the Boyd case is concerned that it was the fact that a subpoena duces tecum can accomplish.

The Court said --

Justice Hugo L. Black: It cannot accomplish it on the basis of the Court's holding.

The Court held, as I understand it, maybe I'm wrong, it's the reason I asked you the question, as I understand it, what it held was this.

Here's a subpoena issued to bring the paper.

If you don't bring them you can be prosecuted. The Court held that since the subpoena was bad, it violated his rights.

Now, why would not that same reasoning apply to this subpoena?

Mr. Alan S. Rosenthal: Because, Your Honor, again, the Boyd case itself as Your Honor may recall had discussed at some length the background of the Fourth Amendment and that went through Entick against Carrington and the landmark opinions of Lord Camden and also the James Otis --

Justice Hugo L. Black: But it's the holding was the other, wasn't it?

Mr. Alan S. Rosenthal: No.

But it's holding there was -- again was, as we read that case what it held was this and that is that what the Fourth Amendment was directed against was someone breaking in under a color authority into one home and seizing his papers.

And the Court said that even though here, you don't -- you do not have that drastic form of governmental action that the subpoena duces tecum with this compulsions that attaches to it, directing the individual to bring the papers or else --

Justice William J. Brennan: But the Fourth Amendment also talks about arresting the person, doesn't it?

Mr. Alan S. Rosenthal: That's right, but the -- in this case, again, that -- we're dealing here again with the issuance of the subpoena.

Now, we submit again that it cannot possibly, the arrest, the security of --

Justice William J. Brennan: Well, the Fourth Amendment certainly doesn't deal only with seizing papers.

Mr. Alan S. Rosenthal: No, it -- the Fourth Amendment also says that -- it said the right of the people to be secure in their person's, houses, papers and effects against the reasonable search and seizure shall not be violated and that no warrant shall issue but upon probable cause supported by --

Justice Byron R. White: The people arrest the person out on the street without probable cause and without a warrant, his the Fourth Amendment right violated or not?

Mr. Alan S. Rosenthal: I would say his Fourth Amendment rights might well be violated, no sir.

Justice Byron R. White: So really, the Fourth Amendment deals with persons and not his papers.

Mr. Alan S. Rosenthal: It does Your Honor in terms of the --

Justice Byron R. White: Well, I just don't understand how you've even came -- come closer in answer to Justice Black's question.

Mr. Alan S. Rosenthal: The Fourth Amendment, if the Court pleases, protects two things in -- two in -- types of invasions of personal liberties.

And one of them is the search and seizure part that has nothing to do with individuals except to the extent that the individual may be searched himself or his papers.

The other part of the Fourth Amendment is the security of the individual against what?

Against arrest.

Now, in the Boyd case, they were dealing where --

Justice Hugo L. Black: Can I ask you (Voice Overlap) -- before you -- just to add to what you've answered to Justice White.

Suppose they'd thrown out a warrant for a man, a search warrant for stealing, having stolen goods in his possession and as Mr. Justice White said, they don't execute it but there he is -- could that -- is that man -- does he have a right to sue this man for issuing such a -- causing such a warrant to be issued against him?

Mr. Alan S. Rosenthal: Just on the issuance of the --

Justice Hugo L. Black: And arrest, yes, just for the issuance.

The sheriff decides, I'm not going to serve this thing. I don't like it.

Mr. Alan S. Rosenthal: No, not for the mere issuance of it, no.

Justice Hugo L. Black: Are there any cases?

Have you looked up the point that was -- that in connection with state cases?

Mr. Alan S. Rosenthal: Well, if Your Honor pleases, let me make one point quite clear at this point.

We are not suggesting, that's why I think we make it quite clear on our brief, that if the facts are as alleged in this complaint, that this individual would have no right of action, the petitioner here against the respondent that where a federal official outside the scope of his authority but acting under the color of law, invades an individual's rights, a from of trespass, from a conversion of his property, and form false arrest or false imprisonment.

He has a common law right, no question about that.

But we're dealing with here if the Court pleases, necessarily since the jurisdiction of the District Court in this case is wholly dependent upon 28 U.S.C 1331.

There is no diversity jurisdiction alleged in this case.

Justice William J. Brennan: You're saying that he has a state remedy but no federal remedy --

Mr. Alan S. Rosenthal: Precisely.

Justice William J. Brennan: -- on this allegation?

Mr. Alan S. Rosenthal: He might have.

He might have a state remedy and in the state remedy, he might -- it would be for abuse of process if he has one.

The California law of abuse of process is somewhat elusive.

Justice Byron R. White: So you'd say that even if -- your first point is that the Fourth Amendment doesn't -- won't give – provide him any protection in any way.

But even if it did, it doesn't give a -- it doesn't form the basis for his -- in his simple relief.

Justice William O. Douglas: Well, the Fourth --

Mr. Alan S. Rosenthal: (Voice Overlap)

Justice William O. Douglas: -- Fourth Amendment is a -- turn -- sets up a procedure so there will not be abuse of process, isn't that it?

Mr. Alan S. Rosenthal: Your Honor, the -- well, if it's just --

Justice William O. Douglas: The things that have to be done.

Mr. Alan S. Rosenthal: Well, abuse of process can take many forms.

Justice William O. Douglas: Yes.

Mr. Alan S. Rosenthal: And we would be -- certainly, the Fourth Amendment is designed to protect against the -- against the issuance of either unwarranted search warrants or arrest warrants, but there -- of course, process is a much broader concept than that.

An abuse of process will cover in addition such things as the writs of attachments and subpoenas.

Now, we say that a subpoena ad testificandum isn't within the bounds of the Fourth Amendment.

It is plainly, however, this has been held to be within the bounds of the concept of abuse of process.

Now, if again, that our position is here -- is not that necessarily on the allegations of this complaint, there is no cause of action at all.

Our position is that there is no federal cause of action cognizable in a diversity suit but there is a cause of action and it is under state law.

Now, I would like to point out in that connection.

Justice William J. Brennan: Is this a diversity of [Inaudible] --

Mr. Alan S. Rosenthal: No, it's not Your Honor and that is the -- that is the hurdle that we think that the petitioners cannot overcome is that the -- there is no diversity here because it's alleged in the complaint that both petitioner, respondent were residents of California.

And therefore, the claim has to be based upon 1331 and it doesn't arise under the Constitution.

Now, it clearly also does not arise under the laws of the United States.

There's been some reference by Mr. Wirin of the enabling resolution.

As this Court has held on many occasions, a claim does not satisfy the jurisdictional requirement of federal jurisdiction merely because the course of its decision will raise a question under the Constitution or a federal statue.

The claim must base its right to recover squarely upon the Constitution or an Act of Congress.

And I think that this Court's examination of Rule XI, will convince it that the resolution cannot possibly be regarded as being a direct source of a right to money damages.

Justice Arthur J. Goldberg: Mr. Rosenthal, [Inaudible]

Mr. Alan S. Rosenthal: It doesn't involve immediate detention but directs him merely to appear in Court.

We would say no.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Alan S. Rosenthal: We would say --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Alan S. Rosenthal: It -- we would say that's a little closer obviously to the line between arrest and not arresting in this case but we have cited in our brief an opinion of Justice Cardozo when we was sitting on the New York Court of Appeals which indicates -- reflects, I should think the common law view that arrest involves immediate detention, not merely the appearance in Court at some subsequent day.

But in the case which you hypothesize Mr. Justice Goldberg, at least there -- the individuals being called to answer, a criminal or quasi criminal charge.

In this case is merely being directed to do with millions of people over the years have been directed to do and that is to respond to a subpoena to give testimony.

Chief Justice Earl Warren: Mr. Wirin.

Rebuttal of A. L. Wirin

Mr. A. L. Wirin: May it please the Court.

Justice William J. Brennan: Mr. Wirin, has it [Inaudible] on this, any violation of the Civil Rights Act at all?

Mr. A. L. Wirin: None at all.

Justice William J. Brennan: Any reason for that?

Mr. A. L. Wirin: Yes.

I think the Civil Rights Act (Voice Overlap) --

Justice William J. Brennan: It only applies to state action (Voice Overlap) -- I beg your pardon?

Mr. A. L. Wirin: I think the Civil Rights Act probably (Voice Overlap) --

Justice William J. Brennan: That's right.

Mr. A. L. Wirin: -- conduct by state officers --

Justice Potter Stewart: That's right.

Mr. A. L. Wirin: And that this is a conduct by a federal official.

Justice Potter Stewart: That's right.

Thank you.

Mr. A. L. Wirin: Now, I dissent from the views of the Solicitor General's office with respect to the meaning of the phrase arise under law or Constitution, and the suggestion made that in order for a federal court to have jurisdiction, in order for a matter to arise under a law or the Constitution, the law or Constitution must expressly confer a specific right.

This Court explored this entire matter in International Association of Machinists versus Central Airlines a week ago yesterday.

And in that case, what was involved was a contract presumably made under -- under state law, but stemming from obligations which arose out of federal law and this Court took the view that the federal court had jurisdiction.

Justice Potter Stewart: I don't think there's any issue between these two, the jurisdiction and the federal court as I understand it.

Mr. A. L. Wirin: Well, I think perhaps there isn't, but what I really ought to go on to say is that not only is there jurisdiction but in such circumstances then there is a statement of a cause of action invoking a federal claim.

Justice Potter Stewart: And that is the --

Mr. A. L. Wirin: And if so, there would be -- if so, the motion to dismiss which was sustained here because the complaint doesn't state the claim, I suppose presumably doesn't say the federal claim was improvidently granted.

Justice Byron R. White: Mr. Wirin --

Mr. A. L. Wirin: Yes.

Justice Byron R. White: -- there is a -- the Government does not agree with you however that there -- that the case arises under a law.

It does agree with you that it arises under the Constitution.

Mr. A. L. Wirin: Yes.

Justice Byron R. White: And I don't --

Mr. A. L. Wirin: Now, we say --

Justice Byron R. White: I don't understand why in your mind it's significant for you to insist that there -- it arises under a law as well as under the Constitution?

Mr. A. L. Wirin: Well, if we have two strings to our bow, could be -- maybe a little better off than just one.

Justice Potter Stewart: You don't need any if the other side agrees with you.

Mr. A. L. Wirin: Well, but you see, their agreement with us, Your Honor, to be candid, is nominal rather than substantive because they concede there was jurisdiction and then they proceed to argue that there is no cause of action stated because no federal claim is stated.

Justice William J. Brennan: Well, is it – [Inaudible] on the ground that any federal claim stated is so insubstantial and frivolous that it does not state a cause of action.

Isn't that rather what the Government's position is?

Mr. A. L. Wirin: I'm not sure.

Justice William J. Brennan: I thought --

Mr. A. L. Wirin: If they -- if --

Justice William J. Brennan: I thought they were relying -- I thought they were saying the fact that under Bell and Hood, you've got two things.

You've got jurisdiction and cause of action and if you rest it on the Constitution, you state jurisdictional right but no cause of action unless the federal constitutional claim is substantial and non-frivolous?

Mr. A. L. Wirin: Alright, now let me address myself to that summarily, and also say something that I neglected to say in my opening argument with respect to the matter of the Fifth Amendment as well as the Fourth Amendment, we're trying three strings rather than two.

We say that in addition to there being a violation of the Fourth Amendment, there was a violation of the Fifth because the process here was issued arbitrarily and hence not in the accordance to due process of law that it affects the petitioner's liberty because it's compulsory process which compels this petitioner to go to some place and be there at a certain time (Voice Overlap) --

Justice William J. Brennan: Arbitrarily, only because it was an excess of authority to issue, is that it?

Mr. A. L. Wirin: That's right.

And therefore we say that a process which issues arbitrarily violates due process of law, and if it affects liberty by some restriction of liberty that it's a separation of liberty without due process of law in violation of the Fifth.

Justice Potter Stewart: Well now, isn't that true --

Mr. A. L. Wirin: And --

Justice Potter Stewart: Every subpoena issued by every court in the land and they're (Inaudible) -- issued by the thousands everyday, affects to some extent the liberty of those upon whom those subpoenas are served.

Mr. A. L. Wirin: With these three, Your Honor.

Justice Potter Stewart: Because if they have to go to court, instead of going to work that day or instead of going to the ball game.

Mr. A. L. Wirin: But every such subpoena would not abridge liberty without due process of law unless if it were issued arbitrarily.

And if it is issued arbitrarily, we would say, and if it was federal process, we would say that it is a matter which should be adjudicated to the validity of the process, should be adjudicated by the federal courts.

And that leads me then to what I want to say --

Justice Arthur J. Goldberg: [Inaudible]

Mr. A. L. Wirin: It would --

Justice Arthur J. Goldberg: [Inaudible]

Mr. A. L. Wirin: Yes, I think that's correct.

I think probably that's the import of -- that's the inescapable effect of my argument.

Justice Hugo L. Black: Are you basing --

Mr. A. L. Wirin: I'm not too sure now.

Justice Hugo L. Black: -- your case on that?

Mr. A. L. Wirin: Pardon?

Justice Hugo L. Black: Are you basing your case on that?

Mr. A. L. Wirin: No, not at all because --

Justice Hugo L. Black: If you are, you probably will --

Mr. A. L. Wirin: Because of --

Justice Hugo L. Black: -- have to make a full argument you've made of --

Mr. A. L. Wirin: Yes.

No, I'm not basing my case.

Justice Hugo L. Black: Which provision of the Constitution says arbitrarily and capricious?

I thought you're on the Fourth Amendment?

Mr. A. L. Wirin: Well, all I'm saying is, I think we also have a due process.

Deprivation of liberty without due process under the Fifth Amendment and in that connection what I want to say is --

Justice Hugo L. Black: What it is, is a deprivation of that due process, isn't it if it violates the Fourth Amendment in order to make the arrest?

Mr. A. L. Wirin: Well, I --

Justice Potter Stewart: What was the arrest (Voice Overlap) --

Mr. A. L. Wirin: I have to go a little farther (Voice Overlap) --

Justice Potter Stewart: What arrest was there in this case?

Justice Hugo L. Black: I mean to make this -- serve the subpoena --

Mr. A. L. Wirin: I am not contending there was any (Voice Overlap) --

Justice Potter Stewart: I didn't think you were.

Mr. A. L. Wirin: I'm not contending to what arrest.

But I am saying --

Justice John M. Harlan: [Inaudible]

Mr. A. L. Wirin: Well, alright.

A subpoena is a form of compulsory process.

It requires a person to do that which otherwise he's under no requirement to do, and to do it on pain of prosecution and to that extent it's a --

Justice John M. Harlan: [Inaudible]

Mr. A. L. Wirin: -- is not serious violation.

Justice John M. Harlan: If the man didn't show up [Inaudible] --

Mr. A. L. Wirin: As a matter of fact, counsel was incorrect about that in two respects.

He's talking about a different man.

He's talking about Wheeldin, not Dawson.

As a matter if Dawson did show up.

To be sure, we don't say it in our complaint, we don't think it's necessary to say it.

Justice John M. Harlan: [Inaudible] as far as the --

Mr. A. L. Wirin: Well, the complaint --

Justice John M. Harlan: -- complaint is concerned, you're (Voice Overlap) --

Mr. A. L. Wirin: The complaint said nothing --

Justice John M. Harlan: [Inaudible]

Mr. A. L. Wirin: -- the complaint says nothing about that one way or the other.

And what I was tying -- what I want to say is that I think Boyd versus United States decides and I think this Court has either decided or has been committed on a number of occasions that the dividing language in the Fourth and the Fifth is a fine complaint that both the Fourth and the Fifth, we're talking about due process, are designed to protect as Boyd versus United States says, the security of the person and his effect.

Justice William J. Brennan: [Inaudible] in respect to relation there has been -- in respect to the privilege against self-incrimination has it been not for the due process?

Mr. A. L. Wirin: But Your Honor, I think you've -- if Your Honor will look again at Boyd versus United States in 116 (Voice Overlap) --

Justice William J. Brennan: It went beyond the privilege?

Mr. A. L. Wirin: It didn't discuss the privilege at all.

It was discussing merely the securing of evidence from a person against him through compulsory process by the Government.

Justice William J. Brennan: Well, does it --

Mr. A. L. Wirin: There through a subpoena duces tecum --

Justice Potter Stewart: Haven't you -- haven't you right there put your finger on the big distinction between a subpoena duces tecum and a subpoena to appear and testify ad testificandum.

In Boyd against the United States which relied as you rightly say on both the Fourth and the Fifth Amendments and which involved a subpoena to bring a lot of papers and records.

It was necessary right at that point in order to assert the witnesses' rights under the Fourth and Fifth Amendments to resist that subpoena because those records, once they were in the hands of the opposite party or in the Court, could not stand up and say, “I rely on my privilege under the First Amendment.

I rely under -- on my privilege right under the Fifth Amendment.”

To them, it would've been done, but a live witness, not compelled to bring anything with him but only to come there himself can come there with all his constitutional rights intact and those can be tested if as it when he asserts them in answer to any interrogation that may be addressed to him.

Mr. A. L. Wirin: Your Honor --

Justice Potter Stewart: Isn't that the difference?

Mr. A. L. Wirin: -- is quite right and I agree with you entirely but let us take your example one step further.

Suppose the person who was subpoenaed in Boyd versus United States have sued for damages.

He would say, my -- the federal court has jurisdiction and I am fitting a federal claim because my rights under the Fourth Amendment have been taken away.

Now in -- what we're saying is that when a person is served with a subpoena whether duces tecum or ad testificandum, at least his liberty has been affected to the [Inaudible] and if it injures him seriously as it did as to petitioner, Dawson, we say, at least he may go to the federal court and secure relief.

Now in this case, the original suit sought declaratory judgment that the subpoena was invalid, an injunction against the enforcement of the subpoena with respect to which the state courts of California couldn't possibly have any jurisdiction and it also sought damages.

Justice Potter Stewart: All that's left is damages, am I right?

Mr. A. L. Wirin: All that is left is damages and all that we are saying is -- and the narrow question which finally results from this discussion about the broad constitutional principle which are in this case is the narrow question as to whether the plaintiff -- the petitioner is in the right hall and we say he is in the federal court correctly.

Justice Potter Stewart: It's a little more than that.

It's whether a trial -- whether or not a claim has been stated under the Constitution or law of the United States.

Justice John M. Harlan: What you're saying in effect, that you're arguing is that, under the due process, in that federal clause involved either a (Inaudible) -- a deprivation to liberty without due process of law or an unreasonable seizures of [Inaudible]?

Mr. A. L. Wirin: Yes.

And may --

Justice John M. Harlan: [Inaudible]

Mr. A. L. Wirin: Yes and may in addition violate a statute here, Rule 9 (a).

Now finally, I am also saying this that the Government's present concession that we can sue this respondent in the state court comes pretty late to help the petitioner for two reasons.

In the first place, the statute of -- California statute of limitations has long since come and gone, but more seriously, this Court has said that a denial of a motion to -- the denial -- the granting of a motion to dismiss on the ground that a cause of action is not stated is an adjudication on the merits.

And so even if we could file a suit in the state courts in California, we will be met by the doctrine of res judicata on the ground that there has been an adjudication on the merits of the claim, and indeed, Mr. Justice Black, in Bell versus Hood, the chief case on this subject said that a ruling, granting a motion to dismiss because a claim is misstated is not a ruling and that the Court has no jurisdiction that's allowing another court with extra jurisdiction, but is a ruling on the merits.

Justice Potter Stewart: All right this is a -- the ruling here was that a claim under the Constitution or of the United States or a law of the United States hadn't been stated.

There is no ruling that a claim had been stated under some federal or under some state statutory or common law, right?

Mr. A. L. Wirin: The ruling by the Court -- United States Court of Appeals which Your Honors are reviewing was directly to the effect that the plaintiff -- that petitioner had no right to relief because the defendant had it complete and asked for the immunity, no.

Justice Potter Stewart: But that's no longer the issue as to both of you now also.

Mr. A. L. Wirin: If that is -- that's the law in which we proceed with the issue.

Now finally, let me say these things.

We think that sound judicial policy, but first, by congressional and federal executive policy calls for this kind of a case to be tried on the merits by a federal court rather than by a state court for these reasons.

In the first place, the Congress has indicated a policy that suits against federal officials be tried in the federal courts by providing peremptorily in the removal statute that a federal official sue as this federal official is may summarily cause the matter to be removed to the federal court where he has acted under color of authority.

Justice Arthur J. Goldberg: [Inaudible]

Mr. A. L. Wirin: I'm merely drawing the comfort that at least in that respect the Congress intended that in that situation, a federal tribunal is a proper tribunal.

I'm going to say that in addition to that, the Department of Justice, and we set forth in an appendix to our reply brief, the policy of the Department of Justice of removal of cases to the federal courts.

And we think it would be improvident and might even be unfair to public officials if their conduct was to be tried in a state court as subject to the vagaries of state court decisions and it could lead to a more uniform and more acceptable administration of justice where the citizen claims a federal official has deprived him of his rights if the federal district courts were to adjudicate those controversies.

Featured:

Grumman v. United States - Oral Argument

Tue, 25 Sep 2012 22:35:26 +0000

Case:

Grumman v. United States

Media File:

436_19620419-argument

Related Transcript:

436_19620419-argument

Transcript:

Argument of David Rein

Chief Justice Earl Warren: Number 436, Frank Grumman, Petitioner, versus United States.

Mr. Rein.

Mr. David Rein: Mr. Chief Justice, may it please the Court.

Petitioner here was indicted for refusing to answer four the questions put to him by a subcommittee of the Committee on Un-American Activities on July 18th, 1957.

Prior to trial, petitioner's motion to dismiss counts 1, 2 and 4 of this indictment was granted and therefore, petitioner went to trial only on the remaining count, count 3.

This count, I would like to read it briefly from brief as it appears at page 4, alleged the refusal to answer the following question.

As a member of the Communist Party, when he, Mignon, was in the Communist Party, he said, "With you”, and in local term, he said that he sat in closed communist cell meetings with you.

Now, I will ask you whether or not he was telling the truth or was he telling a falsehood.

I would like to repeat again that this is the only count upon which petitioner went to trial and on which he was convicted.

I repeat what would appear to be obvious and repeat it again because this point seems to have escaped the court below completely which thought it was reviewing apparently a conviction on the counts which dismissed and I don't think the point is yet permeated to the Government, at least as far as I can see from its brief.

And I contend on the basis of the fact that we only have this count before the Court for review and these contentions really are we -- web into one another that this count 3 question was not pertinent to the announced subject under inquiry that the petitioner was given no explanation of the pertinency of that count, even though they objected to the pertinency of the count and finally related to these other points, the question had no legitimate legislative purpose and that there was no sufficient justification for the invasion of petitioner's privacy in First Amendment Rights.

Justice John M. Harlan: He made a pertinency before?

Mr. David Rein: Oh, yes, he did.

Justice John M. Harlan: After --

Mr. David Rein: Yes, he --

Justice John M. Harlan: -- (Inaudible)

Mr. David Rein: -- he made a pertinency objection by saying, "I don't think that the question is pertinent".

That appears, and if Your Honor would permit me, I would like to go into the context, the full context of the case and I will get to that point and read the exact language if I may defer that for a minute.

Now first, I like to point out that these hearings were being held pursuant to a formal resolution which was adopted by the House Committee on Un-American Activities Committee on July 10th of 1957.

And we have here what we do not normally have in inquiries by the House Committee on Un-American Activities and perhaps because of this Court's decision in Watkins case because these hearings were held shortly after it, we have an exact frame of reference as to what was that the Committee was concerned with.

I have set out for easy reference in my brief at page 4 the exact language of that resolution.

And you will note that the purpose of the resolution was to investigate whether or not members of the Communist Party or persons subject to its discipline are employed in various media of communications and it goes on with the purpose of determining whether or not we need remedial legislation at the present time to combat dangers of espionage or sabotage in the communications industry.

According to the Staff Director of the Committee, Mr. Arens, who testified at the trial, was the only witness of the trial, petitioner had been subpoenaed as a witness in this case on the basis of information the Committee had obtained from a Mr. Michael Mignon.

Mignon, according to Mr. Arens, was one of several to use the parlance of the Committee, they have great deal of parlance which is peculiar to the Committee, was one of what is called a friendly and cooperative witness.

Justice Potter Stewart: He is sapient?

Mr. David Rein: Well, that's their terminology.

I don't say he's sapient.

I think it means friendly and cooperative.

I don't think there's (Voice Overlap)

Justice Potter Stewart: Then why -- why was it peculiar about the language?

Is it ordinary?

Mr. David Rein: Well, it's peculiar because I don't know that they have a classification.

Some witnesses are classified as friendly and cooperative and others -- it's not peculiar but it's peculiar in the sense that they used this as their regular parlance.

I don't know that other people regularly describe witnesses in a formal classification, some being friendly and cooperative as Mignon was and as our particular petitioner here was described as unfriendly and uncooperative.

Justice Potter Stewart: Well, they have pigeonholes in which they put witnesses --

Mr. David Rein: Yes.

Justice Potter Stewart: -- in advance.

Mr. David Rein: That's correct, in advance.

According to the Staff Director, as a matter of fact, this witness Mignon, prior to these hearings had been interviewed in several times by the staff.

And it was only after that he was fully satisfied that he was a reliable witness, one who which they would have full confidence that they decided to put them on the witness stand.

Now, Mignon testified on the first day of the hearing, these hearings opened up on July 17th.

He testified that he and Mignon had been a member of the Communist Party from late 1936 to sometime in 1940 and that during most of this time, he had also been an officer of the American Communications Association, which is a labor union in this communications field.

And during the course of his testimony, he repeated for the public record a list of names which he had supplied to the Committee in executive session as people whom he had known as communist during this period and he included on that list the name of the petitioner.

Now, the petitioner was the first witness to go onto the stand on the following day, that is July 18th.

And although the Committee had never had any contact with the petitioner before, he was classified in this pigeonhole as being an unfriendly and uncooperative witness.

The petitioner relying on what was then the recent cases decided by this Court in Watkins and Sweezy, I believe they had been decided maybe six weeks before.

This hearing was in July of 1957.

He refused to answer questions as to whether he was a communist or knew of communist in the communications industry.

Now, the Staff Director and the Chairman of the Committee both pressed petitioner to answer to these questions, to answer the question as to whether he was now a communist.

And they went at some length to explain the pertinency of that particular question.

And I think it's important in the light of the context and the fact that we have a different question before us, to read to you why the Committee said it wanted an answer to the question as to whether the petitioner was now a communist.

Well, I like to read, it's set out briefly at my brief at page 67 what he was told by the Staff Director, Mr. Arens, namely, “Mr. Grumman, if you are now a communist, you could tell this Committee at all probability of directives from the Communist Party to communist respecting the vital communications facilities of this nation” --

Justice John M. Harlan: Where is it in your brief?

Mr. David Rein: 6 to 7.

Justice John M. Harlan: 6 to 7.

Mr. David Rein: I'm sorry.

“If you are now a communist, you could tell this Committee of the techniques proposed by the Communist Party to cease the communications industry to intercept messages to sabotage communications in the event of war”.

Then the Chairman of the Committee added the following note, he said, he wanted to bring to the witnesses' attention the then recent decision of Judge Youngdahl, District Judge Youngdahl in the District Court of Columbia in your case of United States against Peck, in which he said that -- Judge Youngdahl there he said that the Communist movement now constitutes a criminal conspiracy.

In the Peck case, Judge Youngdahl had made a sharp distinction between questions dealing with what he said was the past, pre-1950, which he said were not permissible questions to put to a witness but he said that the situation being roughly post-1950 might be different because since 1950, the patents of the Internal Security Act, the Communist movement was now a criminal conspiracy.

Now after considerable colloquy back and forth, the petitioner made the point clear and he said he wanted to respond to the Committee and make it perfectly clear and he said as follows.

He says, "I have no knowledge or information whatever of anybody who does or wants to conduct sabotage and espionage or illegal interceptions and so forth.

I know of no directives of anyone at all to do this kind of thing".

He also told the committee he never heard or knew of no directives of the Communist Party to obtain control of the American Communications Association.

At that point, the Staff Director announced that the staff interrogation of the witness was concluded.

There was some further colloquy at which point, a prepared statement which the witness have been prepared or the aide of counsel was then read into the record although prior to that, the Committee have made a big point of refusing to let him refer to it.

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

Mr. Rein, you may continue your argument.

Mr. David Rein: Thank you, Your Honor.

I believe I carried the statement of facts to the point where the Staff Director had announced that the staff interrogation of the witness had been completed.

The Chairman of the Committee, Congressman Doyle, then inquired of the two other members of the subcommittee whether they had any questions to put to the petitioner.

Both answered in the negative.

One member of the Committee Mr. Scherer added, "Have a motion to make is the witness excused".

The Staff Director again said, "I have no further questions".

And then it appears in the record that the conference was held by the members of the subcommittee and the staff, off the record and the subject of that conference does not appear on the record of the transcript.

And it was immediately following that conference, after the Staff Director had said, “The staff interrogation was concluded", and after the witness had said that he had no information on any of the subjects which were the stated subjects of inquiry as set forth in the resolution.

It was after all that happened that we get to a colloquy which lead to what is now count 3 in the basis of the indictment and the conviction.

I have set that out and I like to refer the Court to follow me now, my brief from page 9 to 10.

The Chairman of the Committee, Mr. Doyle said, "Witness and witness counsel, I am calling your attention to the fact that a few minutes ago, I believed I quoted verbatim the testimony of Mr. Mignon.

You are acquainted with him, are you?

You know who he is."

Mr. Grumman, "I have certainly met Mr. Mignon."

Mr. Doyle, "Certainly met him, well he said he met you."

Now on yesterday, he, a former admitted communist for several years in the same union of which you are now secretary-treasurer and at least you were one term president according to your own testimony, voluntarily named a number of the officers of the union before this Committee and he named you Frank Grumman, secretary-treasurer of A.C.A. Local 10 and Mr. Fraser was another member of the subcommittee and dispersed as a member of the Communist Party and Mr. Doyle took on, "As a member of the Communist Party, when he was in the Communist Party, he said with you and in local term, he said that he sat in closed communist cell meetings with you.

Now, I will ask you whether or not he was telling the truth or was he telling falsehood."

Now, that big mouthful or rather long discussion is what the indictment claims to be the question and which is the basis for the question, which formed the conviction.

The petitioner replied, "I decline to answer that question sir on the same grounds as previously set forth in the statement" and as I've indicated, the statement by this time, it included in the record and the statement among other grounds objected to the lack of pertinency of some questions.

Mr. Scherer said, "I asked that you direct the witness to answer the question".

And Mr. Doyle presumably recognizing, that the witness had objected on the ground of pertinency, and recognizing the requirements of the Watkins case, went to answer as follows, "I direct you to answer the question, it is certainly pertinent.

The testimony of Mr. Mignon and others has already shown before this Committee that the union was at that time controlled by the principal officers, by identified communists in control of the policies of the union of which you are now a member and secretary-treasurer in the field of International Cable Communications, which is certainly an area involving the secure -- security of our nation, I direct you to answer the question."

The petitioner again replied, "Sir, I decline to answer the question on the grounds of lack of Committee jurisdiction under the Watkins decision and on the grounds of the lack of pertinency".

His last objection went unanswered because the Chairman of the Committee then went on to something else.

Now, we submit first, on the basis of this record, that the Government failed to carry its burden of proof to show the pertinency of this question, whatever it may have showed with regard to the inquiry itself.

And we proceed on, which I believe is the premises established by the decisions of this Court, that a conviction of contempt may be sustained only if the particular question which forms the basis for the conviction is pertinent to the subject under inquiry, not of some other question which is not in the case.

And it is not enough to support a conviction to show that there is a general valid subject of inquiry, now, and also under the doctrine of this Court, if the burden is on the Government to prove the pertinency.

Now, the particular question here or though rather obscurely worded input, inquired whether or not the witness Mignon was telling the truth when he testified that he had attended communist cell meetings with the petitioner at some undefined period between 1936 and 1940.

I don't know when it was but we know it was certainly no later than 1940 because that's when Mignon left the Communist Party.

Now, the subcommittee's authorizing resolution directed an inquiry into current conditions in the communications industry.

Furthermore, by the time this question had been put to the witness, the witness had already testified that he had no knowledge or information to give to the Committee concerning these subjects of espionage, sabotage, interception of communications or alleged communist control of the union.

As a matter of fact, he did give them some testimony to the effect that he didn't see that was possible for anybody to engage in espionage or sabotage and under current conditions but the Committee indicated that they were not interested in that type of testimony.

They were only interested in testimony which said that there would be a danger and they were not interested in any witnesses' testimony that said there was no danger.

These were the subjects that fell within the mandate of the subcommittee.

And petitioner had been told by the Staff Director earlier during the colloquy that these were the subjects with which the Committee was concerned.

Now, this particular question in count 3 was both remote in time and seemingly off the subject of the inquiry.

It certainly has no a priori legitimate connection between this question and the state of subject under inquiry.

Now despite this, the Government wanted to prove pertinency although it doesn't appear from the face of the matter.

If the Government burden to make that showing at trial.

At the trial, they showed nothing other than the actual transcript of the case, the transcript of the hearing.

So, we gained nothing other than what I have already read to Your Honors with regard to the question of pertinency.

Now, the Government here in its brief offers three separate grounds of pertinency for this particular question.

Before discussing the Government's grounds, I like to note preliminarily that since none of these grounds were communicated to the petitioner at the hearing itself when he objected to pertinency, I do not believe the Government can rely upon them here at all.

I think that principle was best set forth in the dissenting opinion of Justices Harlan and Frankfurter in Deutch, even though it was a dissenting opinion that spoke I'm sure on this point for the unanimous court.

And I like to quote very briefly from that because it -- it expressed it quite heavily.

It said, "The Government must stand or fall upon the explanation of pertinency given at the legislative hearing since it would obviously unfair to allow the Government at trial to prove pertinency on a different theory than was given to the defendant at the time he testified and on the basis of which he presumably determined that it need not answer the questions put".

I like to also note parenthetically that not only are the three grounds which the Government advances for pertinency here not grounds which will communicate it to the petitioner at the hearing but they were not grounds which apparently occurred to anybody either at the trial or at the court below and have come forth from the Government for the first time in the brief in the case here.

The Government contends first that the question was pertinent because the Government says it tested the credibility of the witness Mignon.

Now, we submit that if the -- if the question had any purpose, it is certainly was not to test the credibility of the witness Mignon.

Not only was the petitioner not told that that was the purpose but on the contrary, after he refused to answer the question as to whether Mignon was telling the truth or the falsehood, the Chairman of the Committee reasserted his confidence in Mignon's testimony and he said, "Mignon's testimony on the testimony of the others have already established this matter to our satisfaction”.

It's a -- I don't see how anybody could possibly conclude from that that the Committee was interested in testing the credibility of a witness whom they had satisfied themselves was a reliable witness and whom they had classified as a friendly cooperative witness in contrast to the witness -- to the petitioner.

Further, there is an additional objection here.

Furiously enough although the trial court never bothered to state why he considered the question to be pertinent, he gave no reasons at all.

He did make an expressed finding, as acknowledged by the Government here, that the question was not put to the petitioner for the purpose of testing Mignon's credibility.

Now, the Government argues here that the trial court was mistaken on that point and this Court can disregard the trial court's finding.

I suggest the matter is not that simple.

As this Court has indicated in a number of cases particularly in Sacher, the question of pertinency and particularly the explanation of pertinency must appear to the petitioner or to the witness while he is on the witness stand with what has been described as undisputable clarity in the language of this Court.

We have a situation here where one tribunal says that the question does not have that meaning or significance to suggest that you might reject and overrule that it seems to me at any event, makes it perfectly clear that the question does not indisputably clear, its -- its argument.

And we can dispute what it might or might not be.

And a matter of fact that was the principle of Justice Harlan's concurring opinion in Sacher in which he pointed out that the question was there, it cannot be set to be indispu -- indisputably -- clearly pertinent to the subject under inquiry when the lower tribunals below had differed as to the meaning and significance of the questions.

Secondly, the Government argues that the question was pertinent because it was preliminary.

I submit that certainly that suggestion is really unpardonably inaccurate.

The question was put to the witness and if we want to look just at pages in the transcript in the record, the interrogation was commenced and the printed record at page 69, this particular question was not put to him until page 97.

It was put to him almost at the close of the hearing.

It was after the staff interrogation had been concluded.

It was after two members of the three-man subcommittee had announced that they had no further questions.

One of them actually thought that the witness had been excused.

Moreover, the witness had already testified that he had no information as to the announced subjects of inquiry and yet the Government suggest that this question was pertinent because it was preliminary.

Preliminary to what?

I do not know.

It has some suggestion here that if he had answered the question, the Committee would doubtless of going on and done several other things.

I submit that --

Justice Potter Stewart: What are the indictments alleged that the subject under inquiry was?

Mr. David Rein: It didn't allege anything, Your Honor.

The indictments never alleged as one of the points in our brief.

Justice Potter Stewart: Well on the previous case, in the Yellin case, the indictment did allege in some specific detail of the subject under inquiry.

Mr. David Rein: Well, we have briefed in our brief and I won't have time to get into it, that the Government in the District of Columbia has adopted the practice of never alleging the subject under inquiry or never alleging pertinence.

And I think as I say at my brief, and it's a point I don't think I'd be able to brief, I think they do it decidedly so that when they get into court, particularly on appellate court, they're free to move around and think of different subjects under inquiry or different grounds of pertinency.

And also because sometimes when these cases come from the Committee, it's very hard to know of what the theory of the Committee was and I suppose they solved --

Justice Potter Stewart: Well in here --

Mr. David Rein: -- both of those problems.

Justice Potter Stewart: -- in this case you don't know what the theory of the grand jury was, do you?

Mr. David Rein: Well, I don't know.

I don't know what the theory of anybody is here except that it seems to me this question clearly is not pertinent.

Justice William J. Brennan: Do you ask -- do you ask for a bill of particular?

Mr. David Rein: Yes, I did Your Honor.

Justice William J. Brennan: (Inaudible)

Mr. David Rein: Yes.

Justice William O. Douglas: Did you take an exception for that?

Mr. David Rein: Well, it's not -- I'm sure it's preserved in the record without the necessity of taking exception under our procedure.

Finally, the Government contends that the question and this is a contention that they made for the first time in its brief here although they did not even have in the opposition to assert that although remote in time, it's pertinent because remote questions are pertinent.

Well, I just suggest that that only begs the question but to say that it's pertinent because they believe it's pertinent.

I want to turn now to my second prime in may argument and that is the failure to give within the language of Watkins a meaningful explanation of the pertinency of the question once there was an objection on the ground of pertinency and to quote very briefly from Watkins as to the burden placed upon the Committee, I think on occasion when there is an objection, to be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.

Now, petitioner's pertinency objection was met first with the statement of Congressman Doyle that the question was certainly pertinent.

Now, that of course is not an explanation.

He followed with what I have read to Your Honors and I have set out again at page 30 of my brief, simply a statement that they were satisfied from the testimony of Mignon and other witnesses that they really had all the information they needed on this subject.

Now, that would only raise the additional problem it seems to me as to -- it's rather right for the subcommittee to decide or press a question when they were already satisfied that they had all the information they needed on the subject.

But in any event, whatever view one might take of Congressman Doyle's remarks, it certainly does not contain any connective reasoning, connecting count 3 to the subject under inquiry.

And least of all, doesn't suggest any of the reasons given by the Government here to support pertinency.

I have only a brief minute or two.

Now, I like to just suggest if I may, the application of the balancing test to the particular facts of this case.

Now, the court below and I believe the Government here conceives that the balancing test must be met but it says that the balancing test must be met, and I want to take it from a different point of view not so much the rights of the petitioner, but what was the interest of the Government.

And they say the interest of the Government was to preserve the communications industry against disaster.

Now, I would like to submit only this one particular question to Your Honor and I believe it's supported by the language of these cases.

What connection can there be with obtaining an answer from this witness to this question as to whether or not Mignon was telling the truth about some communist meetings in 1936 to 1940 with a security of the nation.

And I think it is important --

Justice Potter Stewart: Now, let me just -- you -- you were to concede with.Sure that was just an indirect way of asking him whether he'd been in those conference meetings.

Mr. David Rein: I don't concede.

Justice Potter Stewart: (Voice Overlap)

Mr. David Rein: In fact but let's assume that.

Let's assume that.

Justice Potter Stewart: It's an --

Mr. David Rein: Let's assume --

Justice Potter Stewart: alternate way of --

Mr. David Rein: the question --

Justice Potter Stewart: -- stating that question.

Mr. David Rein: Whether he was at communist meetings in 1936 to 1940.

I say we have the same problem.

What is that going to help particularly in the context already established of a witness who has told this Committee that he had no information on all of these espionage and sabotage?

More than that let me indicate --

Justice John M. Harlan: You think the Committee is bound by this statement (Inaudible)?

Mr. David Rein: The Committee is not bound by it, as a matter of fact that -- it wasn't.

Justice John M. Harlan: And you can't any further, you can't cross-examine and can't go to find out whether he's telling the truth?

Mr. David Rein: Well, let's put it this way, if the Committee is not interested and -- and the Staff Director there has made it perfectly clear, not only under the annual report reflects that.

When they wrote up this case, they resided the testimony of a number of witnesses who said that there was a great danger of espionage and sabotage.

This witness and other witnesses including witnesses from the industry, who said that the nature of the manner in which the messages were sent was such that espionage was almost impossible.

It was let completely out of the annual report.

And I asked Mr. Arens about that on the witness stand and he said, "Well, we did not include in our conclusions any testimony from witnesses in whom we had no confidence, we did not interpose much confidence”.

Now if they want to disregard his testimonies, they were going to disregard it anyway.

I don't think there's any question about it.

But this is -- the purpose of this question is not to cross-examine him.

The purpose of this question was perfectly clear to me to harass him.

But I don't know or much more likely if one may give another and there's a good bit of wisdom, in a quotation I have made from Debrow's case and I think one must was recognized that even where there is a valid subject of inquiry before a committee, congressmen have a tendency, very often, to ask questions from either curiosity or from interest.

Now not every one of those questions has a great bearing on the subject and most congressional committees I believe that they get into a dispute with the witness or something rather will drop the matter.

I can't see how any committee can seriously believe, who is seriously interested in the state of subject of inquiry, can seriously believe that an answer to this question would have been of any assistance to it or that the answer to that question is of such importance that the petitioner here is entitled to go -- should be sent to jail for four months for refusing to answer.

I believe my time is up.

Chief Justice Earl Warren: Mr. Terris.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice, may it please the Court.

Petitioners in the Grumman and Silber cases were convicted for refusing to answer questions during an investigation of Communist activities in the communications industry.

That is the cable, telegraph and radio companies which transmit messages both Government and private messages, both within the United States and between the United States and overseas.

The American Communications Association, a leading union in the communications industry, had been expelled from the C.I.O. in 1950 for following Communist policies.

In addition to this information, the Committee had considerable information that principle officers of the Association were members of the Communist Party.

The purpose of the investigation was to discover whether these officers were members of the Communist Party and whether the existence of communist in the communications industry endanger national security.

If such a danger existed, the Committee indicated that it will -- that it would propose corrective legislation.

Therefore, throughout the hearing, the Committee repeatedly asked witnesses what legislation could be used to lessen the danger from Communist activity in the communications industry.

Before petitioner Grumman appeared before the Committee, and of course also before petitioner Silber appeared since he was subsequent to petitioner Grumman, Committee heard five witnesses.

Three of these witnesses were leading officials of large companies in the communications industry.

The other two witnesses were members of the American -- were former members of the American Communications Association, long time workers in the communications industry and former members of the Communist Party.

The latter two witnesses testified that present principle officers of the American Communications Association had at least at the time that the witness -- witnesses had been in the Communist Party, been members of the Communist Party.

Petitioner Grumman, like petitioner Yellin, had been publicly identified at a committee hearing as a member of the Communist Party.

Michael Mignon testified.

The petitioner Grumman and he had been members of Local 10 of the American Communications Association and of the Communist Party together and that they had attended close meetings of the Communist Party together.

These five witnesses further testified that Communist in the communications industry posed an extremely serious danger to American security for three reasons.

The first reason they said is that Communist could intercept secret Government messages.

For these messages were generally in code, they thought that if the messages were copied down and taken away from the -- particular place where they -- the communications place, the code could well be broken.

The second way of the Communist posed a great danger was that in a time of crisis, even one or two Communist could easily, in a few minutes, sabotage key components necessary to send important Government messages.

And the third reason, that Communist in the industry post a great danger, was that during an emergency, they could use the communication system to send messages between themselves.

When petitioner Grumman appeared before the Committee, he told the Committee that he was a long time officer of Local 10 of the American Communications Association, secretary-treasurer to be exact and a long time worker in the industry, 25 years in R.C.A.

He refused to answer numerous questions.

However, his conviction was based solely on his refusal to answer a single question.

After petitioner had refused to answer questions concerning current Communist activity including whether he was currently a member of the Communist Party and who has knowledge about current Communist activity in the communications industry.

The Committee went back to advance on which it had definite information.

In essence, it went back to the beginning with the information which indicated to with the petitioner Grumman did have information concerning the subject under inquiry.

The Committee therefore asked petitioner whether Michael Mignon was telling the truth.

When he testified, the petitioner had been a member along with the witness of the Communist Party and Local 10.

And the petitioner had been in closed communist cell meetings with the witness.

This question we submit was in effect whether petitioner had been a member of the Communist Party at that time, which was between 1936 and 1940.

Now, before I turn to the First Amendment arguments and to the arguments centering on pertinency, I would like to consider this briefly.

The question was -- which Mr. Rein suggested, whether the indictment was insufficient because it did not state the subject under inquiry in specific terms and did not state the relationship of the particular questions to the subject under inquiry.

And in addition, a subject, an argument which he did -- did not mention whether the indictment was insufficient because it alleged that the refusal to answer was unlawful but did not state that it was willful.

Justice Potter Stewart: All those are three separate --

Mr. Bruce J. Terris: Well, the first two are quite -- are -- are really -- are really the same thing.

Well, I -- I won't -- I wont debate that.

It doesn't really -- I think the answer is the -- is -- is the same if it -- the question whether you have to state the subject under inquiry in the specific relationship to the questions to that subject, the -- the Government's answer at least is -- it -- is the same for both.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: That's right.

But the -- the content of our answer is the same, that's right.

All these questions, all three of them broken down into pieces are in the six cases that were in the -- that were submitted to this Court in the fall involving contempt of Congress.

Now, the indictment which petitioner attacks is identical in form with that which has been repeatedly before this Court, in Watkins, in Barenblatt, in Wilkinson, in Deutch and almost every one of the other cases which has been here.

Yellin is an exception, Braden is an exception insofar as willfulness is specific but I believe that the subject under inquiry is not specific.

And both the petitioner's contentions have been repeatedly rejected by the Courts of Appeals.

In fact, there is no decision that we know of which supports petitioner's contention, any one of the three contentions.

Now, turning more specifically to petitioner's contention that the indictment should have specified the particular subject under inquiry in the particular pertinency of the questions to this subject.

Rule 7 (c) of the Federal Rules of Criminal Procedure states that the indictment, and I'm quoting, "shall be a plain concise and definite written statement of the essential facts constituting the offense charged".

The federal courts, including this Court, have repeatedly held that the Rule 7 requires no more than the indictment and charge the essential elements of the offense in terms -- in the terms of the statute so that the defendant can adequate -- adequately prepare his defense and prevent a second prosecution for the same offense.

And I may say that Rule 7 and the decisions of this Court under it and the decisions to that matter of the court -- Courts of Appeals have indicated that -- that there are -- that increasingly, the idea of indictments is to be a simple and as brief as possible.

If -- the whole trend of the cases has been in this direction, petitioner's quite technical argument, it seems to us to ask -- to go back at least in part to the old rules of technical and complicated and very full indictments.

In the Markham case even as long ago as 160 United States, however, this Court stated that an allegation, that a false statement was material to an inquiry then pending, and I'm quoting "was material to an inquiry then pending".

An allegation which is virtually identical to that made and the indictment here was sufficient to charge perjury.

Justice Potter Stewart: I noticed on footnote 33 on page 108 of brief that you --

Mr. Bruce J. Terris: That was not a holding.

Justice Potter Stewart: -- exchanged your positions?

Mr. Bruce J. Terris: Yes, that is not a --

Justice Potter Stewart: As to what Markham case holds?

Mr. Bruce J. Terris: No, that is not a holding.

But the dic -- but the dictum is showing --

Justice Potter Stewart: Now, in Shelton, it was represented to us that was a holding and in --

Mr. Bruce J. Terris: There was a mistake.

Justice Potter Stewart: -- Markham case, it was not.

Mr. Bruce J. Terris: There was a mistake, Your Honor.

It was -- it is not a holding because the Court went on in Markham after stating quite fully that this was sufficient, that it went on to say that you can interpret from that indictment what the subject under inquiry was.

However, there's full paragraph -- in fact, I think at the point that you mention at the footnote, we said our -- most to their paragraph, although not all, in which the Court with -- with obvious approval set forth numerous statements by authorities saying that all that had to be stated in the indictment was that that the inquiry was material without specifying the particular subject to the inquiry.

And this Court stated in the Sinclair case that the pertinency of questions to the subject under inquiry, in a contempt case is not essentially different from the question as to the materiality of false testimony charged this perjury in prosecutions for that crime.

Now, turning from perhaps what is the -- the technical rules of what an indictment must charge to the purpose for which the indictment is required to charge var -- various elements to the offense, this Court in the Debrow case and in -- and in another recent cases have -- has said that indictment must charge the elements of defense for two purposes.

First, in order to give the defendants sufficient information to defend himself and second, to prevent a second prosecution for the same offense.

Now, the indictment here gave petitioner, we submit, ample information to prevent any possibility of a second prosecution for the same offense.

It has specified the subcommittee which held the hearings, the date of the hearings and the questions, the particular questions which petitioner refuse to answer.

Therefore, we -- we believe that there is no possibility that he could be tried again for this offense.

Now, the only serious argument really the petitioner has, that the failure of the indictment to specify the subject under inquiry and the pertinency of the questions to the subject under inquiry, was that it deprived of a fair chance to defend himself.

That is -- I hope to your time to show petitioner as this Court is required was specifically apprised at the hearing of the subject under inquiry and the relationship of the question, the questions which he refused to answer to that subject.

This transcript as a public document, that there could be little doubt that he understood the subject under inquiry, if there is doubt, if he was not apprised, then of course quite outside of the -- of the indictment question, he could not have been convicted under this Court's rule in the Barenblatt and in -- in Deutch cases.

Justice Potter Stewart: Instead, you've given us the two tests by which the sufficiency of an indictment isn't measured according to your position, would they be any different with respect to an information?

Would they be the same -- those two tests applied as --

Mr. Bruce J. Terris: I would think so.

Justice Potter Stewart: -- well then what's the deference between -- what's -- what's the purpose then in requiring an indictment?

Are --

Mr. Bruce J. Terris: Well --

Justice Potter Stewart: -- there any further additional test applicable --

Mr. Bruce J. Terris: You go to a grand jury.

Justice Potter Stewart: -- to an indictment which are not applicable to an information?

Mr. Bruce J. Terris: Well, there's -- there's one of course additional protection for the defendant.

Justice Potter Stewart: What's that?

Mr. Bruce J. Terris: They goes -- they go to a grand jury and the grand jury supposedly --

Justice Potter Stewart: And the grand jury supposedly indicts somebody for his specific offense?

Mr. Bruce J. Terris: That's right.

But it the -- the decisions of this Court have made clear that all that it has to do is set forth the elements.

Now, it set forth the elements.

It said that the questions were pertinent.

Now, petitioner's argument is what should have said why they're pertinent.

In order to do that, it would have -- it would have to say that they're --

Justice Potter Stewart: Well, his first argument is that the indictment should -- that the grand jury should have said what the subject was.

Mr. Bruce J. Terris: Well, that's part of why they're pertinent.

You state what the -- the subject and then you give the connective reasoning between the questions to the subject.

Justice Potter Stewart: Well, but this -- his first step --

Mr. Bruce J. Terris: Okay.

Justice Potter Stewart: -- would be based --

Mr. Bruce J. Terris: Okay.

Justice Potter Stewart: -- should have said identified the subject.

Mr. Bruce J. Terris: Okay.

That is not an essential element of the offense.

That is not -- that is not in the -- in the statute.

If the statute requires that the -- that the questions be pertinent, the grand jury charged the petitioners and actually this issue only comes up in these three cases in the Grumman case.

The petitioner refused to answer pertinent questions.

Now, as we read this -- this Court's decisions, that's all that's necessary.

For example in the Debrow case, which was a -- which was a perjury prosecution, the Court held that it was enough to charge that the -- that the person before whom the perjury committed was authorized.

He didn't have to give the authority.

He didn't have to specify what the authority was.

That was a part -- that was a question of proof.

It's not -- it's not a question which has to be in indictment.

Now this, as I have said before, is part of the -- we believe that the whole trend of decisions recently which is the indictments are supposed to be extremely simple.

They're just supposed to set out the elements of -- of the crime and suggest insufficient detail to prevent a second prosecution and to give the -- the defendant enough information to defend himself.

As I've said, there can be no doubt that he had this information here because he was specifically told that at -- at -- by the Committee himself -- by itself.

Justice John M. Harlan: Why was it made below (Inaudible)?

Mr. Bruce J. Terris: I -- it was -- it was raised before trial, Your Honor.

We've -- we make contention that it wasn't -- that it wasn't timely.

Chief Justice Earl Warren: Mr. Terris, how -- how was the grand jury informed with the pertinency of -- of these questions?

Mr. Bruce J. Terris: Your Honor, I've -- I have no way of knowing -- I assume --

Chief Justice Earl Warren: Doesn't it need to be?

Mr. Bruce J. Terris: I would -- yes -- yes, I -- I -- just because we don't have it -- the transcript of the grand jury testimony, I don't know.

But I assume that -- yes, indeed, I -- I assume that the hearings were submitted to it and that of course is where we rely on to show pertinency, the subject under inquir -- inquiry and the connective reasoning between the question and the subject.

Chief Justice Earl Warren: Well, suppose the grand jury was thinking of pertinency and in one light and the -- the trial jury was thinking of it in another light.

Mr. Bruce J. Terris: That's --

Chief Justice Earl Warren: Would -- would you -- would they be prosecuting him for the same offense that the grand jury was charging?

Mr. Bruce J. Terris: Well, You honor, I submit that that's a danger which the -- this Court's -- the trend of this Court's decisions leave possible, the idea that you don't have to specify every detail that has -- that's going to be proved.

Now, every time you leave out a detail, this -- this -- it's essential to the proof then there's a possibility that the grand jury guessed wrong just as Your Honor suggest.

It found one subject when in -- in fact the Government was going to rely at the trial at another subject.

Yes, there is that danger.

In the Debrow case, there was a danger that -- that the grand jury there found one basis of authority and it was wrong then another basis of authority was proved by the Government in the trial.

But we submit that if Rule 7 is to be taken on its face value and the decisions of this Court interpreting it that that -- that that danger is inevitable.

And they say that there is a considerable difference between a charge made in an indictment, important as the -- as the indictment is, an actual trial on the issues of guilt and innocence.

I think Your Honor that I -- Your Honors that I leave the issue of willfulness, whether the indictment must -- must charge that the refusal was willful rather than charging that it was unlawful to our brief, I don't think it's a very serious contention and that it is rather technical and is better left to the brief.

As to petitioner Grumman's First Amendment contentions, they, like the First Amendment contentions of the other petitioners, we believe are controlled by the decisions of this Court in Barenblatt, Braden and Wilkinson.

The interest of the witness in silence is the same as the interest -- the interest of the witnesses in those cases in silence.

Petitioner was not pilloried by the Committee, did not appear as a result of indiscriminate dragnet procedures since he was specifically identified in sworn testimony as a member of the Communist Party.

Justice Potter Stewart: What do you take that to mean that requirement if it is one that the Committee must not utilize indiscriminate dragnet procedures on some of the witnesses?

Mr. Bruce J. Terris: I would think that they cannot call somebody off the street and say, "Dude, what do you know about communism?"

Justice Potter Stewart: Would they be very likely to do something like that?

Mr. Bruce J. Terris: No, no, they wouldn't.

But I don't -- the -- the fact that committees unlikely to abuse its power, doesn't mean that the -- that the limitation on its power is not a -- a meaningful one.

No, I hope they wouldn't and I don't know cases in which they have done that kind of thing.

Justice Potter Stewart: It's alleged in the Shelton case that they did something fairly close to that.

Mr. Bruce J. Terris: It was alleged, Your Honor but I think that -- but the Government's position at least --

Justice Potter Stewart: Yes.

Mr. Bruce J. Terris: -- was that the facts were quite different.

They would -- that the Government did have information which shows that -- that the person who was subpoenaed to testify was the person who knew something about Communist activities.

If a defendant show that the Committee had just called him off the street, I -- I would think that Barenblatt means that the -- the First Amendment has been violated.

Chief Justice Earl Warren: Is that the extent of the dragnet definition?

Mr. Bruce J. Terris: Well, I don't want to say that that's the full extent but it seems to me that -- that Barenblatt and the other cases stand for the proposition that -- that this Court and the other federal courts have to presume that Congress of the United States is -- is acting lawfully and that they will not have a full scale inquiry into whether it had justification, probable cause as you will or -- or the --

Justice William J. Brennan: You mean there's a -- are -- are you suggesting that the indiscriminate dragnet means that it would violate that principle if you did not have probable cause to subpoena the witness?

Mr. Bruce J. Terris: No, I did I -- I tried to answer Mr. Justice Stewart --

Justice William J. Brennan: Well, I --

Mr. Bruce J. Terris: -- by saying that --

Justice William J. Brennan: -- you tru but you haven't --

Mr. Bruce J. Terris: To say that --

Justice William J. Brennan: -- for me that what's you think.

Mr. Bruce J. Terris: The clear cases if they have no information.

Let's just assume they say, "We have no information.

We think that there's a lot of Communist activity in New York City.

We're going to ask the New Yorkers, what do you know about it?"

Justice Potter Stewart: But couldn't that be a legitimate inquiry?

All our gallup -- gallup poll, let's say they send their men out to pick up every tenth man, get a pair of sample and has -- each one of them whether or not he's a Communist then they get how many -- how many -- what the percentage of Communist was in New York City.

Mr. Bruce J. Terris: As I read the -- the Barenblatt and the -- and of course this is picked up to some extent in Wilkinson and Braden that although that might have reasonableness that this may -- might well be how an investigator would proceed, that the important First Amendment Rights which are being weighed and I think contrary to petitioners that -- that this Court in those three cases gave very great weight to the First Amendment Right and weighing those important rights that -- that there had to be some more basis than the fact that anybody in that stables.

Justice William J. Brennan: Well, that's not the point but what's the basis?

You have to have probable cause?

Mr. Bruce J. Terris: No, I don't -- I don't --

Justice William J. Brennan: Well, then but less than problem where you're phrasing?

Mr. Bruce J. Terris: I think I'd rather take with the -- the Court's phrasing Your Honor.

The Court said in Barenblatt that the witness had not been subpoenaed as a result of, and I quote "indiscriminate dragnet procedures lacking improbable cause for belief that he possessed information which might be helpful to the subcommittee".

Now, insofar as -- the way I read that, that means that a reasonable man has to think if the person has information --

Justice William J. Brennan: And if I would oppose -- like the opposite of lacking improbable causes but you have probable cause.

Mr. Bruce J. Terris: Well, one of the difficulties is that -- that words often mean something -- different words than their -- depending on their context.

It seem -- I will be willing to agree with you if you -- if you suggest by that the probable cause means something quite different in this context than for arrest, searches and seizures and -- and the like.

They have to have a reasonable ground to think that the person has information of value to me.

I don't think they have to have probable cause that he's a Communist.

For example, if they have -- if they had reason to believe that he associated with Communist or he was an officer in a -- in a group that was heavily -- that was -- that -- that was heavily unfiltered -- infiltrated by Communist so that he would likely know about his fellow officers or the like.

I may say that this issue is not in this case.

It is in the Silber case, it is in the Shelton case and a few of the others that were argued in the false.

It's not in this case.

I assume for the reason that Michael Mignon on this -- before the Committee swore that this defendant was a member of the Communist Party which is the same type of information which this Court relied on in Barenblatt.

Actually, in Barenblatt, the Court didn't even rely on the sworn testimony.

It relied on the statement of Committee counsel that he had information, the kind of statement which was in the Shelton case.

Justice Hugo L. Black: If you -- unless you can point to some constitutional provisions, I find it difficult to follow the idea that a grand jury or a committee that has full power to investigate this matter can prohibit this from summoning everybody it want to summon.

I don't get that.

That's frequently done in grand juries in this case.

Mr. Bruce J. Terris: I think I -- well, Your Honor, I think that is the basic principle.

Now, the way I read Barenblatt, Braden and Wilkinson is that to some very limited extent, the prin -- the principle is limited by the important First Amendment Rights which are involved.

But I think if -- I think you're -- you're absolutely right.

The basic principle is that a committee can call anybody it wants to.

Now, if First Amendment Rights weren't involved here at all, it didn't have any basis, any First Amendment Rights whatsoever, I think they can call anybody right off the street.

Now, because the First Amendment Rights are involved, I read those three cases to indicate that part of the balance is whether they've indiscriminately called the witness.

But I think that's a very limited exception to the general principle.

And I think that's -- and that's -- but I think that's quite clear from the three opinions.

Because of the limited time I have left, I -- I would -- I think I would rather turn to the pertinency contentions made by petitioner Grumman since they are essentially the only contentions which he makes which are different from those made in the Yellin case.

Now, it's perfectly clear the subject that the question on which petitioner was convicted was in law pertinent to the subject under inquiry.

The resolution of the Committee authorizing the hearings, the statement of the Chairman of the subcommittee at the start of the hearings and repeated statements during the hearings said that the subject under inquiry was Communist activity in the communications industry and the question which petitioner refused to answer on its phase considering the fact that petitioner admitted that he was a long time worker in the industry and a member of the American Communications Association was on its phase pertinent to the subject under inquiry.

Now, petitioner Grumman's main contention seems to be that there's an exception to this obviously close connection because the question concerned events between 1936 and 1940 and it was therefore remote in time to the subject under inquiry which was current Communist activities in the communications industry.

Now, the Government submits that there are three ways that the question which petitioner refused to answer was pertinent in law.

First, we submitted -- tested the credibility of our previous witness, Michael Mignon.

But though the trial court did not think that this was the purpose of the question, we submit that this is not a determination of fact.

And on its phase, the question tested the credibility of Michael Mignon before it explicitly asked petitioner whether Mignon was telling the truth.

And the second way that the question -- the information sought whether question would be useful was that if petitioner was a member of the Communist Party in 1940, he could provide information about Communist Party activities at that time and such information would be important, we submit, in understanding the present and future activities of the Communist Party.

It is particularly necessary in investigating the Communist Party just largely conspiratorial in secret and in the early 1950's, went almost entirely underground, perhaps more than any other subject to question witnesses about earlier Communist Party activities.

And therefore, this Court in the Communist Party case specifically held that evidence of Communist Party activities 20 or even 30 years ago was pertinent to the Party's current activities and character.

And the third way that this question sought information which was pertinent was that the question on which petitioner was convicted was a preliminary question.

I may say that in Wilkinson, this Court upheld under both -- a tax, both on the grounds of pertinency and the First Amendment, an inquiry which it said was a preliminary question.

Committee told petitioner that the purpose of questions as to its membership in the Communist Party was to provide a basis on which to question petitioner concerning current Party activities in the communications industry.

Now, turning to the second half of the -- of the pertinency issue whether petitioner was apprised of the subject under inquiry and the pertinency of the questions, petitioner claims that there were -- that the three reasons which I have just given, why the question was not too remote, was not conveyed to him by the Committee at that time that he refused to answer and that therefore, he was not apprised of the pertinency of the questions.

He's -- it is important to remember at the start that a congressional committee need only state the connective reasoning between the question and the subject under in quarrel -- inquiry.

Surely, the statement need not have the subtlety or the fullness of a brief or argument in the Supreme Court.

The fact that the Government has spelled out in greater detail the pertinency of the question, it does not seem to us that the Committee wasn't -- was required to give the page on page of our argument to the witness in that kind of detail.

Petitioner could not have failed to understand the pertinency of the questions.

The Committee repeatedly told him the subject under inquiry was Communist activities in the communications industry.

The question as to whether petitioner was a member of the Communist Party with Michael Mignon was on its phase clearly pertinent to this subject.

And this Court so held in the Barrenblatt and in the Wilkinson cases that a question as the Communist Party membership was on its phase pertinent to an investigation of Communist activities.

And in addition, the Committee told petitioner that the questions as to his membership in the Communist Party were pertinent because they were intended to ascertain whether petitioner could provide information concerning Communist activities in the communications industry.

The Committee did not specifically state why the question was not too remote since petitioner never suggested that the question concerned events which were too remote.

Justice John M. Harlan: Was this witness represented at that time?

Mr. Bruce J. Terris: Oh, yes.

And I'm -- I may say Your Honor that the right of the witness to be represented by a counsel and to advise his client and only to advise his client is not just a practice of the Committee, it's in the rules of the Committee and the rules are all in the back of the -- of the Yellin record.

Justice Hugo L. Black: Can he ask questions?

Mr. Bruce J. Terris: He may not ask questions.

In fact, he -- he cannot engage in public debate with the Committee.

He is confined to advising his client as to his rights.

Justice Hugo L. Black: He cannot raise and object to a question.

Mr. Bruce J. Terris: No, he -- he is entitled --

Justice Hugo L. Black: He can't --

Mr. Bruce J. Terris: -- to whisper in his -- in his --

Justice Hugo L. Black: He can't address the Chairman?

Or can he?

Mr. Bruce J. Terris: The rules say not but -- but it is so -- as long as the -- the colloquy doesn't go on too long if that the -- the rules seems to be -- not to be honored too well.

The initial argument seems to take place and when it gets too long then it -- then -- then it's cut off if the rules say no.

Justice John M. Harlan: Well, the customary thing is the counsel for petitioner would then apply to --

Mr. Bruce J. Terris: Right.

Justice John M. Harlan: -- (Inaudible) which yourself know or believe which was (Inaudible).

Mr. Bruce J. Terris: That's right.

That's the normal thing and occasionally gets into -- into open debate.

In conclusion Your Honor on this issue and -- and by argument in general, the Committee clearly indicated the petitioner that was interested in current Communist Party activities.

The petitioner refused to answer all the questions on current Party activities then the Committee went back to the beginning, to the source of its information.

And at that point, it asked petitioner if he had been a communist in effect in 1940.

We submit that this question was clearly pertinent.

Thank you, Your Honor.

Featured:

Silber v. United States - Oral Argument

Tue, 25 Sep 2012 22:35:33 +0000

Case:

Silber v. United States

Media File:

454_19620419-argument

Related Transcript:

454_19620419-argument

Transcript:

Argument of Victor Rabinowitz

Chief Justice Earl Warren: Number 454 Bernard Silber, Petitioner, versus United States.

Mr. Rabinowitz.

Mr. Victor Rabinowitz: May it please the Court.

Mr. Silber is another one of those cases that came between the decisions in Wilkinson and Barenblatt.

He was called in the same inquiry, same investigation as Mr. Grumman in the immediate preceding case.

He was represented by me at the congressional committee hearing and at his trial.

He was tried a week or two after the Allen case, although his testimony before the Committee was some months before Allen's testimony.

He was convicted for violation of Section 192 on three Counts for refusal to answer three questions and received a sentence of four months.

The subject under inquiry as announced by the Committee was communist penetration into the communications industry.

It has been discussed by previous counsel on the previous case and I might add that this was the fourth hearing held by congressional committees on this very same subject.

The petitioner appeared subject to the subpoena.

He said that he had been employed by Western Union for 41 years.

He said that he had been a member of the Communist Party, that he had joined the Communist Party in 1948, that he had -- that hearing was in 1957, that he had been a member for about a year, that he had attended meetings he said rarely during that period of time and then he dropped out because he found that he wasn't much interested and that he was interested in other things.

Now, one would have thought that if this Committee was interested in sabotage, espionage, communist control of the communications industry, this man would have been affined.

He was a man who admitted having been a member of the Communist Party for a period of a year in the communications industry, employed by Western Union presumably in a position to give the very kind of information that the Committee was interested at.

No questions with relation to espionage, sabotage, communist control were asked.

Instead, the Committee following its incessant and unremitting quest for names moved immediately into that area.

The first question which is the subject of the indictment here Count 1 was, “Was the person who recruited you a communications' worker?"

And Mr. Silber had answered the questions up to that time but at least he bought and he said he must decline to answer this question.

I might say that Mr. Silber was an elderly gentleman, now on pension, not very articulate.

And when he said I must decline, the Committee counsel asked him why.

And he said on the basis of the Watkins and Sweezy decisions and also that Mr. Grumman who had testified two weeks before had filed a long statement with the Committee and he said, “I want to rely on all of the grounds that was stated by Mr. Grumman in his testimony which include the lack of jurisdiction of the Committee, rights under the First Amendment of vagueness of the resolution setting up the Committee, the lack of a Pertinency of the question.”

All of those grounds which had been suggested by the Watkins decision which is I say, had come down six weeks before.

And counsel at this point said to him, counsel for the Committee said to him, asked leave to -- “Explain to the witness why this question was pertinent.”

And he said, “This Committee is considering legislation to safeguard this nation from possible espionage or sabotage facilities by Congress.”

If the person who enlisted you which of the Communist Party was engaged in the communications field, that person undoubtedly would have some information which will be of used to this Committee in developing facts and respecting communist penetration of the communications facilities of this country.

And the witness was directed to answer the question again and I mean -- and witness said, “I'm very sorry.

My conscience prohibits me from answering this.”

And on three or four other occasions during the course of the hearing when other questions of a similar nature were asked, he repeated the grounds that had previously been given summarizing in a layman's fashion when he conceived to be the hauling for the Watkins case, conceived I regret to say incorrectly.

He said, “I'm sorry but I have a conscience.”

As a matter of fact, he said the same thing at sentence that his conscience prohibited from -- him from naming other person.

Count 2 was stricken.

Count 3 was, “Were there any officers of your union, members of the Communist Party at the time you were a member of the Communist Party?

And 3, “Were any of the present officers of your union, members of the Communist Party at the time you were in the party?”

Although, there was an explanation of pertinency with respect to Count 1, there was no explanation of pertinency with respect to Counts 2 and 4 except that after he had answered the question and had -- after he'd refused to answer the question and had been directed to do so by the Committee and he had refused to do so, Mr. Shera, a member of the Committee said, “And these questions were asked you for the same reason that Mr. Arens, our counsel gave you for asking the other questions.

They are pertinent for the same reasons that he advanced, namely that it would give the Committee an opportunity to cost deal other people.

Now, this is an illustration I think of the Committee's never ending quest for names.

The witness was not asked about his activities in the Communist Party.

He was not asked about espionage or sabotage or any of the other subjects the Committee is allegedly interested in.

All he was asked for was the names of other persons and although he expressed a perfect willingness and said, “I am perfectly willing to tell you everything about myself.

My conscience does not permit me to give the names of other persons.”

The name of other persons was the only subject that the Committee was interested in.

Justice John M. Harlan: Was that objection (Inaudible) witness before a grand jury (Inaudible)

Mr. Victor Rabinowitz: I suppose not sir.

Justice John M. Harlan: (Inaudible)

Mr. Victor Rabinowitz: Well, I think there are many reasons in the first place and one of the considerations is that a grand jury investigation is by law subject to secrecy.

What a witness says at a grand jury investigation is not a matter of public knowledge.

I think further that well I -- perhaps I was wrong in saying that the question would not have been -- the objection would not necessarily have been relevant -- have been improper -- the objection were not necessarily have been proper before a grand jury.

I suppose --

Justice John M. Harlan: What about the time of the lawsuit (Inaudible) do you object on that ground?

Mr. Victor Rabinowitz: If it were --

Justice John M. Harlan: In his conscience.

Mr. Victor Rabinowitz: If it were sufficiently relevant to lawsuit, perhaps -- if it were relevant, perhaps he could not have answered on these grounds or he would be more accurate, have had the opportunity of taking risks of not answering and answering.

But this was not a lawsuit, this was a legislative investigation.

Justice John M. Harlan: (Inaudible)

Mr. Victor Rabinowitz: Because the purpose of a congressional committee had always understood was to secure information for legislative purposes, and not to engage in a program of exposure for exposures sake if I may quote language from -- I am sure some decisions of this Court either majority or minority.

This Committee asked this witness no questions about his activities in the Communist Party.

It was apparently not interested in anything that he did as a member of the Communist Party.

It said nothing to him about espionage, sabotage, or anything else.

All that was interested in was the never ending quest for names and names and more names.

And I submit that the purpose of this Committee and this is not the first time that this has been called, I am sure for the attention of this Court is not in my opinion, although I regret to say not the opinion of the Court, a true legislative purpose but as a purpose of exposure, a purpose of publishing as many names and more names and more names.

This matter has been considered by the Court.

It was considered by the Court in many of these decisions and this is a perfect illustration.

He was a witness who admitted membership in the Communist Party, was asked no questions at all about his activities in the Communist Party, was asked no questions about espionage or sabotage or all of those other things that we are told are the subject matter of the inquiry here.

All he was asked for are what are the names of other persons?

He even indicated their willingness and said, “I'm willing to tell you anything about myself, my conscience does not permit me to tell you about other persons.”

This it seems to me is a perfect illustration of the lack of true legislative purpose of this Committee.

Now, I realize that this Court has -- majority of this Court at least, has passed on this subject before and I'm not going to repeat the argument that I made in the Yellin case because among other reasons, I don't have the time for it and I don't want to go through the same the thing twice.

But here is a perfect illustration as I say of the Committee's never ending quest for names and names and names and more names.

And when it does get a witness who is prepared to say, “Yes, I was a member of the Communist Party, I'll tell you everything I want to know about myself but I cannot in good conscience answer about others,” they don't ask him about himself but they only ask about others.

At the close of the hearing, Mr. Doyle who was chairing a meeting complemented the petitioner on his frankness in admitting his membership in the Communist Party.

He complemented him on his good sense and getting out of the Communist Party when he did and he invited him to help the Committee and the witness said, “I'm sorry, I have a conscience to protect.”

The case was tried a few weeks after the Yellin case and it likewise resulted in the conviction this time in the sentence of only four months, the Yellin conviction had been for a year.

The petitioner urges several grounds for reversal here, and I am not going to -- oh incidentally, let me add one more thing.

At the close of the case, I offered the same testimony that Professor Emerson had given in the Yellin case as an offer of proof in this case for the purpose of proving that the -- well, the same purposes I had -- as I had in the Yellin case namely, issue that went to the question of just a cause for a congressional investigation and a balance of -- a balance of -- and the matter of whether there was balance of the interest involved in the situation.

The Court refused to accept the offer of proof, however, it is -- it is printed in the record as it is in the Yellin record that was submitted in writing and the same issues are raised here as were raised in the Yellin -- in the Yellin case.

I'm not going to reargue those.

We do contend, however, as we did in the --

Justice Potter Stewart: Are you going to get to the probable cause questions?

Mr. Victor Rabinowitz: Probable cause --

Justice Potter Stewart: Is that an argument in this case, don't you?

This is Silber, isn't it?

Mr. Victor Rabinowitz: Yes.

Justice Potter Stewart: That's your Point 3, are you going to argue on that?

You better look and see.

Mr. Victor Rabinowitz: Oh yes, of course sir.

That relates really to the question that was discussed to some extent in the previous case.

Justice Potter Stewart: Yes.

Mr. Victor Rabinowitz: I'll get to that very shortly.

My first argument is that the questions here were not pertinent.

This man had been out of the Communist Party for nine years at the time he was testifying.

He could offer no testimony as to the relevance of any matter that had been before Congress at the time that he was testifying.

He had no contact with the Communist Party for eight or nine years.

The only questions he was asked were questions which related to the membership of other persons.

The Committee showed a complete disinterest in his own activities in the Communist Party and asked him no questions concerning him.

And it is our contention that because of the remoteness of his membership and because mere listing of names cannot be pertinent, it's a sort of a discovery proceeding and not a legislative investigation that the questions were not pertinent to the subject matter under inquiry.

On the question that Judge Brennan asked namely the probable cause for the issuing of a subpoena to the witness.

Now in the Barenblatt case, you will recall that the Court said, and this was referred to in the previous case, nor did petitioner's appearance as a witness followed from indiscriminate dragnet procedures lacking in probable cause for belief that he possessed information which might be -- might be helpful to the subcommittee.

Now, it is my contention that the words probable cause have a meaning.

They have a meaning in our law and it's a meaning which is found in many Fourth Amendment cases and the meaning which is found in our criminal law --

Justice William J. Brennan: I gathered the Government's position as whatever meaning it had does not have the meaning it has in Fourth Amendment cases or in arrest.

Mr. Victor Rabinowitz: That's true.

I can attend --

Justice William J. Brennan: Did you say it does?

Mr. Victor Rabinowitz: I contend that it does.

I can send -- contend that the Court used the words probable cause.

It didn't use other words.

These are words of art and they have a meaning.

Now, let us see what the "probable cause" was in this case.

They did not ask -- Mr. Justice Stewart had suggested a little while ago, pick up every tenth -- tenth men off the street, that is true.

But we inquired at the trial at some length as to why Mr. Silber was called and we found that the following were the reasons that were given for calling him.

In the first place, he had access to the messages and facilities of Western Union which would present sabotage and espionage possibilities.

His position would be considered important.

He signed Communist Party petitions on behalf of Israel Amter and Benjamin Davis.

Now, there's no indication in the record as to when he signed those petitions for Benjamin Davis and Israel Amter.

Amter had a last run for political office as far as I can make out in the year 1939, so that was the last time he could have signed the petition for Israel Amter, 1939 would have been 20 years prior to his testimony.

Davis had run for Attorney General of the United States on a Communist Party ticket and had run for other offices on the Communist Party ticket in New York.

But the last time, he ran was 1946, so that was 12 years prior to the date that he ran for office.

The next reason was that --

Justice William J. Brennan: I take it when you say he ran for office on the Communist party ticket, this --

Mr. Victor Rabinowitz: Mr. Davis ran, not the witness.

The witness had signed anonymity.

Justice William J. Brennan: Yes I know, both Mr. Davis and Amter.

Mr. Victor Rabinowitz: Yes.

Justice William J. Brennan: I gather in those days, it was quite legal for the --

Mr. Victor Rabinowitz: Oh yes.

Justice William J. Brennan: Communist Party.

Mr. Victor Rabinowitz: Yes indeed.

And as a matter of fact both Amter and Davis ran for office and Davis was for a number of years, a member of the City Council of New York on the Communist Party ticket.

The next reason was that in 1940, the New York Times had listed his name as the name of a person whom someone had called a Red in the course of inter -- a factional dispute in the American Labor Party that was the other -- another reason for calling this witness.

And finally, his son whose first name is unknown, was also identified as a member of the Communist Party by a confidential source.

This, I suppose is the reverse of the sins of the father being visited on the son.

We contended and still contend that this was not within the meaning of the Barenblatt decision, probable cause for calling this witness.

The words “probable cause” have a meaning in the law, and I cannot believe that the Court used the words probable cause merely to mean that there was some sort of a reason.

It seems to me on the contrary that this was precisely and indiscriminate dragnet proceeding.

Thousands of people had signed Communist Party nominating petitions on behalf of Amter and Davis.

Justice William J. Brennan: Tell me Mr. Rabinowitz, I gather you're not arguing or perhaps you are when I ask the question.

Are you arguing that whatever their information was, they had to make known that -- make that information known to the petitioner before they question?

Mr. Victor Rabinowitz: No, I am arguing that this was the indiscriminate dragnet procedure.

Justice William J. Brennan: Well now, what you're saying is that if they subpoenaed him, they must in fact have had information which would constitute whatever probable cause is --

Mr. Victor Rabinowitz: Right.

Justice William J. Brennan: -- before they could --

Mr. Victor Rabinowitz: Exactly.

Justice William J. Brennan: -- follow.

Mr. Victor Rabinowitz: And let me make a distinction between this case and almost every other case that has come before the Court.

I think that Whitman maybe an exception.

There is an exception of one of the cases that was argued this year.

In almost every other case that has come before the Court, there has been from somebody, sworn testimony that the man was a member of the Communist Party.

This was true in Braden.

You may not have thought much of the testimony but there was by somebody, sworn testimony that he'd been a member of the Communist Party.

There had been sworn testimony by -- in Wilkinson, there had been sworn testimony as to Barenblatt.

There had been sworn testimony as to Yellin.

There had been sworn testimony as to Grumman.

There had been sworn testimony as to almost all of these persons.

Justice William J. Brennan: Well, I think Shelton may have been --

Mr. Victor Rabinowitz: It may have been --

Justice William J. Brennan: -- Shelton who has just been anonymous letter in the file.

Mr. Victor Rabinowitz: That may have been the case.

I don't remember which one of the ones who were heard earlier this term in which there seemed to be a, "indiscriminate dragnet procedure."

Now so far as the signing of the petition for Davis and Amter were concerned, under the New York State law, a nominating petition for Davis would have required 12,000 signatures.

That means that if the Government is right, anyone of those 12,000 persons could have been called before the Committee and questioned or can be called before the Committee and questioned as to whether he is a member of the Communist Party.

And if this is not indiscriminate dragnet procedure, it is difficult for me to understand what those words could have meant.

I will not repeat here the constitutional issues that I argued a little earlier in the -- in the Yellin case, I think all of those constitutional issues are equally relevant in this case and --

Justice Potter Stewart: I think -- are you now arguing within the corners of the Barenblatt opinion or are you asking us to overrule that?

Mr. Victor Rabinowitz: Well with respect to the constitutional issues, I am asking you to overrule the Barenblatt and Wilkinson and Braden decision.

Justice Potter Stewart: Aren't you -- are you also making an argument that within the framework, within the context --

Mr. Victor Rabinowitz: Yes, I --

Justice Potter Stewart: -- of that opinion that applying the -- your concept of the balancing test, that the balance here should be struck to favor the petition?

Mr. Victor Rabinowitz: Yes sir.

Justice Potter Stewart: Also in -- in that sense, you're not asking us to --

Mr. Victor Rabinowitz: No, in that sense, I am asking you follow what I conceived to be the ruling in the Barenblatt and Wilkinson and Braden cases.

The testimony of Professor Emerson which was incorporated in the Yellin case in which I've discussed this morning was relevant in this case as well.

And was as I say, admitted in the -- or it's in the record in this case.

Furthermore, what was the testimony which petitioner was being called on to give?

There had been four or five investigations over a period of years into so called Communist activity in the communications industry.

There had been several hundred pages of testimony taken over this subject and the naming of over a hundred persons in the industry who were alleged to have been Communists.

Many names were repeated over and over and over again.

The petitioner's membership in the Communist Party had been nine years before.

It had been casual in significance and remote in time.

Suppose he's been able to name two or three more people, suppose he had been able to say that instead of there having been a hundred persons in the communications industry who are members of the Communist Party, there had been 106 who had been members of the Communist Party of what legislative significance would this conceivably have had to the Congressional Committee which has been investigating this union now for a period of I think 11 years.

We have, on the other hand I think, very substantial rights of the petitioner and I've discussed this in the petitioner and also very substantial rights on the part of the public to -- well as I said in the Yellin case this morning, substantial rights on the part of the public to hear issues discussed and to engage in this public debate which is a debate that is proceeding throughout the world.

The petitioner here was in effect being asked to be an informant.

He was not being asked -- he was asked as to any of his own activities and in our opinion, the remoteness of the testimony being at best nine years old, the lack of probable cause here within the Barenblatt decision and the balancing problem which I have referred to a few moments ago all add up to the same thing.

There had been three prior hearings held by congressional committees on the problem of so called communism in the communications industry.

Hundreds of names had been recited, dozens of witnesses have been testified, this thing has been going on for 11 years, Congress still hasn't passed any legislation on the subject and there must be a time when Congress -- it seems to me and this Committee must be told that enough is enough.

Justice Potter Stewart: Do you -- do you construe these questions as requesting the names of people?

Mr. Victor Rabinowitz: So the counsel at the -- the pertinency that was explained to him at the hearing was that he -- the pertinency that was explained by counsel was, “We want to know so that we can call these people and they may be able to give us information.”

Justice Potter Stewart: Certainly.

Mr. Victor Rabinowitz: I will concede that these questions do not, on their face, call for names.

It's quite correct.

Justice Potter Stewart: How else can you look at the question?

Mr. Victor Rabinowitz: Well, you can look at the question by examining the reason for pertinency given by the -- by counsel at the time that the question was asked and the Government is bound by its explanation of pertinency.

The reason given by counsel was if the person who enlists -- the first question was who recruited you?

If the person who enlisted you into the Communist Party was engaged in the communications field, that person undoubtedly would have some information which would be of used of this Committee in developing facts, respecting communist penetration of the communication's facilities of this country.

Justice Potter Stewart: The question was it wasn't who recruited him but just whether the person who have had recruited him was a communications person?

Mr. Victor Rabinowitz: Yes, but the explanation of pertinency was that this would supply the Committee with the names of persons.

I assumed that the next question was -- would have been who and the witness must have assumed that too.

Otherwise, there is no sense to counsel's explanation of pertinency.

And I submit that as I have been pointed before, the Committee is bound by its own explanation of pertinency and I read again, and this appears at page 28 of the record.

If the person who enlisted you in the Communist Party was engaged in the communications field, that person undoubtedly would have some information which would be of used to this Committee in developing facts, respecting communist penetration of the communications facility of this country.

Now, it's true that the Government now claims that in addition to the naming of names, in addition to asking him to be an informant --

Unknown Speaker: (Inaudible)

Mr. Victor Rabinowitz: They didn't yet.

I will concede that they didn't yet but I also submit that counsel in explaining pertinency had pointed out that that was going to be the next question.

Justice Byron R. White: Well, assume -- well, assume that it wasn't the next question though and you really would make a different argument, would you, meaning if the name thing was really out of it --

Mr. Victor Rabinowitz: If the person who enlisted you --

Justice Byron R. White: -- (Voice Overlap) -- the same argument.

Mr. Victor Rabinowitz: If the person who enlisted you into to the Communist Party was engaged in the communications field.

Well I'm sorry, the question was, was the person who recruited you a communications worker?

If there had been another explanation of pertinency, I don't know what the other explanation of pertinency -- pertinency might have been.

Justice Byron R. White: Well --

Mr. Victor Rabinowitz: It is quite possible if the witness would have answered.

The witness has said over and over again that his conscience prohibited him from naming names.

Justice Byron R. White: Oh I understand that so you would make -- but you would make the same kind of an argument.

Mr. Victor Rabinowitz: No.

Justice Byron R. White: Well, assume we said -- assume that the question was like one of the other questions was, were there any other Communists in your establishment (Voice Overlap) --

Mr. Victor Rabinowitz: The question could have been answered yes or no without naming names.

Justice Byron R. White: Yes.

Mr. Victor Rabinowitz: I suspect that if that had been the explanation of pertinency -- touch me to go back now --

Justice Byron R. White: How many communists?

Were there questions like that?

Were there of your officers communists?

How many of them?

Mr. Victor Rabinowitz: I can't say what would have happened if that had happened.

All I can say is that if Mr. Arens, who was conducting this -- this examination had said, “I'm not asking you for the names.

I just want to know whether he was a communications worker.”

I, who was his counsel at the time, might very well have advised him to answer the question but that isn't what Mr. Arens said when he explained pertinency.

What Mr. Arens said was, “If the person who enlisted you in the Communist Party was engaged in the communications field, we could call him too” and this would be possible only if he were -- if their names were to be given.

Apparently, Silber so understood the question because he said, “I can't do this because it's against my conscience” and at the close of the testimony likewise, he said, “I cannot name the names of other people because it's against my conscience.”

It's true that now the Government says, possibly there would have been other relevance.

It doesn't say what that other relevance would have been.

But at the hearing, the relevance urged was that, “If you answer this question, we can call that person because he maybe able to give you the names of -- he may be able to give you information” and I quote “which would be of used to the Committee in developing facts to respecting communist penetration of communications facilities of the country.”

Now since Mr. Arens wanted these people, wanted this question answered so that he could call witnesses, it must have been for the -- it must've one of their names.

Otherwise, the explanation of relevancy is totally meaningless.

Chief Justice Earl Warren: Mr. Terris.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice, may it please the Court.

I think that at the start, I'd like to turn to just what the questions were, which petitioner refused to answer because they're almost identical with the kind of questions which Mr. Justice White suggested with the kind, it could be answered yes or no.

The first question, and this is our page 3 of the record, was he, and now that you have brackets, [the person who recruited defendant in the Communist Party] of communications worker.

The answer to that is yes or no.

It's not the name of a person.

Now the fact that the next question might have asked the name of the person, he should've -- if he was going object to identifying people, that was the time to object.

You can't start at the beginning of the hearing and say, “Well, I know what you're aiming at ultimately and that therefore, I'm not going to answer any questions even though the objection I've raised doesn't have anything to do with the questions you're now asking.”

In Count 3, where any of the officers of their union, members of the Communist Party at the time you were a member of the Communist Party?

Answer that yes or no.

It's not -- nobody's name could possibly be a direct answer unless you're going to elucidate the answer.

In Count 4 it's the same thing where any of the present officers of your union, members of the Communist Party at the time that you were in the party.

So none of these -- none of these questions involved the naming of names.

Now, it's true for pertinency purposes, it's arguable that we're bound by the explanation.

We have an argument that we're not bound.

But for First Amendment purposes at least, we're bound by what the questions asked for.

The questions did not ask for names.

The First Amendment issue here is whether a Committee can ask a witness concerning other persons after all, they're barely few questions that don't concern other persons unless you're going to ask the man, are you a Communist?

That's just about the only question you could ask him.

If you ask him, “What group you were a member of in the Communist Party?”

That concerns other persons.

If you ask him, “What are the plans of the Communist Party?”

That concerns other persons.

It's almost impossible to think of any questions other than his personal membership.

And that kind of a question if it were the only thing that the Committee was interested in might well be just exposure for the sake of exposure.

Now, the context of petitioner Silber's refusal to answer is the same as that of petitioner Grumman.

And therefore, I will not repeat it.

The Committee was investigating Communist activities in the communications industry at large amounts of evidence seduced at this hearing about the danger from this kind of -- from Communist in the industry.

Petitioner Silber's contentions concerning the First Amendment are extremely similar to those of Petitioner Grumman and Petitioner Yellin.

Therefore, the Government's answer is virtually the same.

The facts are virtually the same as those in Barenblatt and Braden and Wilkinson and therefore, we submit that those three cases are controlling.

Government is obviously an important, vitally important interest of protecting the communications' network of this country from Communist subversion.

Petitioner Silber was not pillory.

The questions are clearly relevant.

Now, petitioner Silber's main contention and it's hard to say whether it's under the First or under the Fourth Amendments is that he was called as the result of indiscriminate dragnet procedures, lacking in probable cause to put -- to put his argument into the terms of the Barenblatt case, and I assume that means in the terms of the First Amendment and not of the Fourth Amendment.

I may say at the start, the petitioner, I believe, is wrong when he says that no other case which is been decided by this Court involves the witness which who had not been identified before a committee and sworn testimony as a Communist.

My reading of the Braden case, both the -- and I don't have the record here but the Government's brief certainly relied on no explicit testimony before the Committee stating that the witness was a Communist and there's nothing in the opinion which says that there was any such testimony.

Nevertheless, this Court stated the Subcommittee had reason to believe that the petitioner was a member of the Communist Party and that he even actively engaged in propaganda efforts.

As far as I can ascertain now, that statement is based on the sworn testimony of Committee counsel after witness's trial.

And we not only have that testimony here but we have additional corroborative documents which --

Justice Potter Stewart: I don't -- this is perhaps a collateral issue but I had in some witness in California identified -- was that -- that was the Wilkinson's case.

Mr. Bruce J. Terris: I -- Wilkinson I think was --

Justice Potter Stewart: Whether they're having at the committee a witness in California (Voice Overlap) --

Mr. Bruce J. Terris: I believe that so Your Honor.

Justice Potter Stewart: -- had identified at Wilkinson (Voice Overlap) --

Mr. Bruce J. Terris: I believe that so.

I don't think that this is to (Inaudible).

Now, that would have in the record -- I can't positive but certainly the Government didn't rely at any sworn testimony.

Now, I would like to address myself very briefly, First to the Fourth Amendment contention.

Now, this is argued very extensively in our brief just as it was in the Shelton case.

The Government's contentions are essentially and very briefly three-fold.

First of all, the petitioner did not raise the Fourth Amendment before the Committee and therefore, we submit that he cannot raise it in this Court anymore than he raise the First Amendment issues, pertinency issues, quorum issues, any of the other kinds of issues which he may might have made before the Committee.

He did raise the First Amendment issue and therefore, if he was summoned as the result of indiscriminate dragnet procedures lacking in probable cause, I'm willing to assume that that would be a violation of the First Amendment --

Justice William J. Brennan: Well, may I ask Mr. Terris, if -- I'm starting this with if the Fourth Amendment standards for probable cause were applicable here, if they were, is the Government's position that the information in this memorandum will satisfy those standards of probable cause?

Mr. Bruce J. Terris: Your Honor, my answer to that is the last two of the three arguments that we have.

Our second argument is that the Fourth Amendment doesn't apply to subpoenas to testify at all --

Justice William J. Brennan: Why?

Mr. Bruce J. Terris: -- and if it does apply.

Justice William J. Brennan: That's why --

Mr. Bruce J. Terris: Okay.

Justice William J. Brennan: -- if it could start with if, I would say, if they were.

Mr. Bruce J. Terris: Well, it's hard to know what if you say that it applies but doesn't have any content.

Well, I'm going to --

Justice William J. Brennan: Well, I'm not trying (Voice Overlap) --

Mr. Bruce J. Terris: The third -- the third argument.

Justice William J. Brennan: Yes.

Mr. Bruce J. Terris: If it applies, we submit that the standard is the same as subpoena duces tecum.

This Court has held in the Oklahoma Press Publishing Company case versus Walling, not too long ago in 327 United States that the requirement of probable cause supported by ought to reformation literally applicable in the case of a warrant is satisfied in that of an order for production by the Court's determination if the investigation is authorized by Congress is for a purpose Congress can order, and the document sought are relevant to the inquiry.

Now, we can think of no reason why Congress is to be treated worse than executive agencies or that the standard should be stricter for subpoenas to testify the subpoena duces tecum.

Now, applying that standard here, it could be almost -- it almost seems that's beyond argument that it says so.

Justice Byron R. White: Go ahead and apply it to that person.

Mr. Bruce J. Terris: Pardon me?

Justice Byron R. White: Go ahead and apply it to that person.

Mr. Bruce J. Terris: Okay, investigation is authorized by Congress.

Justice Byron R. White: Okay.

Mr. Bruce J. Terris: That was the decision in Barenblatt, Braden and Wilkinson is for a purpose Congress can order, that's again satisfied by Barenblatt, Braden and Wilkinson.

The document sought a relevance to inquiry.

Now, I have to substitute it for documents of course that the testimony sought is relevant to the inquiry and that of course means -- that means pertinency.

Justice Byron R. White: Well now, wait a minute.

The testimony sought is relevant (Inaudible) I believe that you put it to forge the documents --

Mr. Bruce J. Terris: Right.

Justice Byron R. White: -- irrelevant to the inquiry.

And that we need it for a substitution for this person what he knows is definitely relevant to the inquiry.

Mr. Bruce J. Terris: Okay well, I'm going to --

Justice Byron R. White: Well, you should -- you should have some reasonable cause to believe that he knows something relevant to the inquiry that you can see that.

Mr. Bruce J. Terris: Well, that isn't what the sentence -- that isn't what the sentence says in (Voice Overlap) --

Justice William J. Brennan: Well, I know, but the (Voice Overlap) -- documents, the sentence.

Mr. Bruce J. Terris: No wait.

No, it doesn't say that he has reason to believe that the person has documents which are relevant to the inquiry.

It says the documents sought are relevant.

Justice Byron R. White: Oh yes, but the document sought -- they believe that the reasonable cause with the documents, the contents of the document relevant to the inquiry.

Mr. Bruce J. Terris: Well I -- I think I cannot agree but I'm not sure -- I'm not sure that it makes a difference because as I've said, I'm going to accept under the First Amendment, and a witness can't be subpoenaed if that is the result of indiscriminate dragnet procedures lacking a probable cause.

It seems to be the most you can read into Oklahoma Press case is that sentence that it seems to me that is the most.

I don't think that that's what Oklahoma Press stands for.

It's certainly if the whole opinion is taken instead of just the sentence that I read, that it doesn't -- there's no indication there that you have to have any elements of proof.

After all, you could -- you could have had a requirement there of proof.

You could've required some kind of a showing that this particular man and after all subpoena runs to a man, just like it runs to a man here doesn't run the documents that you could've require proof --

Justice Byron R. White: Yes, but what you've just read from Oklahoma case that you have reasons to (Inaudible) reasonable cause for belief that the contents of the documents are relevant.

Now, if you're going to apply that test in the case of a person whose testimony you want then you ought, I would suppose, also we required to have reasonable cause to believe that he can tell you something, is that as --

Mr. Bruce J. Terris: As I see --

Justice Byron R. White: -- upon the inquiry.

And what's the test of whether he may have reason to believe he can testify in a way which will be relevant to the inquiry.

Mr. Bruce J. Terris: As I see Your Honor, I want to get into a sterile argument because in the sense that I'm not sure that what you've said is any different than what really the Court was saying in the Barenblatt case but I don't think --

Justice Byron R. White: I don't know what --

Mr. Bruce J. Terris: -- that is the wording of --

Justice Byron R. White: I don't know what the Court was saying in the Barenblatt case but what I was trying to find out --

Mr. Bruce J. Terris: Well, let me say this sentence, the very wording of the Barenblatt case is not too far from what you said.

But it doesn't seem to me that what you said came out of Oklahoma Press.

After all, when you're asking for documents, you're specifying particular documents.

Those documents are relevant to the inquiry.

You don't know that that guy has the documents, why do you ask him without any reasonable ground for believing he has some.

Oklahoma Press doesn't say that the executive branch has to have that kind of cause to ask --

Justice Byron R. White: -- (Voice Overlap) -- if you don't produce it in the response to the subpoena.

Mr. Bruce J. Terris: And if he -- and if a witness doesn't have the information he says, “I can't answer.”

The response Your Honor is precisely the same.

The question is do you bother somebody?

That's really the argument not --

Justice Byron R. White: Well, I -- I thought what we were discussing Mr. Terris is, what is if the Committee has to know about a prospective witness before properly, they may subpoena him under that testimony of the Barenblatt case that you've been repeating to it over and over all day.

Mr. Bruce J. Terris: Right, I'm -- preliminary, all I've meant to say is that Oklahoma Press establishes that under the Fourth Amendment the Committee doesn't have to know very much.

Under Barenblatt, however, I would -- as I'd indicated before, they could not call somebody else off the street and therefore, I would like to get to the specific information which the Committee had.

I might say the start that this issue comes before this Court with the finding by the District Court on all the evidence that there was good cause to issue the subpoena had call the witness before the Committee and this finding was approved by the Court of Appeals.

And it seems to us that all we have to establish in this Court is if that finding wasn't so erroneous, that there was enough evidence in this record for our Committee to reasonably believe that the petitioner had information to contribute to the Committee's investigation.

Now, Committee counsel testified at the petitioner's trial.

If the Committee had information, the petitioner had been a member of the Communist Party engaged in the communications field.

That is the kind of statement with somewhat more detailed which this Court said in the Braden case, be sufficient to call a witness.

And it seems to us that the Braden case stands squarely in the way petitioner's argument.

I might say it also -- another case which stands in a ways is Uphause and Wyman.

Justice William J. Brennan: Well, may I ask you Mr. Terris what Mr. Arens testified too that it had information and it's filed as to the Communist Party of membership petitioner, is that which later will develop in cross-examination, is it not the information?

Mr. Bruce J. Terris: I would assume that so I -- in Braden what happened --

Justice William J. Brennan: In other words, the (Inaudible) from the New York Times in this report of Mr. Russell --

Mr. Bruce J. Terris: Yes sir --

Justice William J. Brennan: And all that -- that's all he was referring to, was it at the trial?

Mr. Bruce J. Terris: Well there -- there are four things Your Honor --

Justice William J. Brennan: Yes.

Mr. Bruce J. Terris: I assume that's right.

In Braden -- the reason I say in Braden, there was less, is that in Braden all you have is the conclusion.

You had no idea where it came from.

Here, you have the conclusion and I assume most if not all of the underlying information if I might say Uphause and Wyman which this Court upheld a conviction under First and Fourteenth Amendment attack that there, there was many information that Mr. Uphause was a Communist at all.

All there was, is an indication and I don't think even that -- and there's assuming that from the opinion one cannot tell that this was sworn before committees, but there was information that Communist or people that were involved in Communist fun activities, well of course may not even be Communist, had been guest at the Summer Camp.

Yet, this Court held that there was ground to call Mr. Uphause to say who these people were.

I may say that there, they were asking -- they were asking for names which they were not asking for here.

The Government doesn't think there's any difference.

We've argued that both in Whitman and in -- in the Whitman case but I don't -- but in any event --

Justice William J. Brennan: Well maybe, my memory doesn't serve me but I thought what they were after there where the -- in effect the registry of the hotel.

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: Now, all with the background of much correspondents between Dr. Uphause and the other people.

Mr. Bruce J. Terris: I think that's right Your Honor.

I will say that's a much broader kind of inquiry than is involved here.

Particularly of a man who wasn't -- that nobody has even charged this far as I know at least and nothing in the -- in the case indicates with being a Communist himself.

Mr. Silber is not only charged but he admitted that he was a Communist.

Justice Byron R. White: Mr. Terris, do you think this whole issue is eliminated by the fact this gentleman sort of a trial or sort of the hearing then everyone's a communist?

Mr. Bruce J. Terris: I don't think -- I think probably it's a technical matter that it is not eliminated, that the essential inquiry is what the Committee knew prior to the time.

Just as in the Fourth Amendment search and seizure case, the fact that you find narcotics, it doesn't prove that you have probable cause to search the premises.

Justice Byron R. White: Yes, but the issue is different here.

The question is whether (Voice Overlap) --

Mr. Bruce J. Terris: Yes, yes.

I don't think its -- put it way, let's say they just talk -- walk up to a guy in the street and they said, “We'd like to talk to you, you come in” and they announce to, “We don't have a slightest idea you're a Communist, are you?”

He said “Yes, I'm a Communist.”

I would think that in that case under what Barenblatt says that there was an indiscriminate dragnet procedure.

Justice Byron R. White: All you would do then -- all you would then is letting -- according to your idea was (Inaudible)

Mr. Bruce J. Terris: Well, that's of course a difficulty which in the Fourth Amendment area you don't have because in the Fourth Amendment area, you can say that the evidence can't be -- can't be admitted.

Here, you are not out for the admission unless you're trying to find out what the facts are, right?

I agree Your Honor that it would be hard to draw a rule of what then the Committee would be expected to do.

Justice Byron R. White: And do you say that you've got a probable cause rule or some kind or simply some question about raising it in some -- based in the hearing?

Mr. Bruce J. Terris: Not -- insofar as this is under the First Amendment and it's very -- it's a little bit hard for me to know exactly what the petitioner is raising in his brief.

He doesn't mention in the Amendment.

He doesn't mention what legal provision he's relying on.

His case has seemed to go both First and Fourth Amendment --

Justice William J. Brennan: I thought he was relying on what -- on that same statement from Barenblatt.

Mr. Bruce J. Terris: Well, it's not quite that clear from the brief.

I think now he's relying both on the Fourth Amendment and Barenblatt which I read is the First Amendment.

It's not slightest mentioned in Barenblatt of the Fourth.

If that's what he's relying at, we don't argue this without standing to raise the First Amendment issue.

He raised it before the Committee.

And we don't think that you could require a witness to raise all the particulars of your First Amendment issues.

So insofar, if this is the First Amendment contention, it's -- we believe that it's properly before the court.

We do not think his Fourth Amendment contention if that's what he's making is before the Court since he never told the Committee about this.

Justice William J. Brennan: Well, I -- as I recall the Shelton argument, I think the Government's position there was that even an anonymous letter he said somebody by the name of Shelton at the New York Times we think as a Communist, was sufficient test -- to support subpoenaing Shelton to come down and testify.

Mr. Bruce J. Terris: But one additional fact Your Honor, and that is that the letter came from an informant who've been previously found to be reliable.

Justice William J. Brennan: We don't have -- we don't have reliable informant here, do we?

Mr. Bruce J. Terris: We don't know whether he's reliable.

On the other hand, we have collaboration which we did not have --

Justice Byron R. White: What is the --

Mr. Bruce J. Terris: Collaboration --

Justice Byron R. White: -- (Voice Overlap) -- of the New York Times?

Mr. Bruce J. Terris: Well, the two things that he --

Justice Byron R. White: Or one of the other is one collaboration of it?

Mr. Bruce J. Terris: Well, let me tell the Fourth state, the four documents in which we rely.

The first is the petitioner handled the Government including secret government messages.

That means that if he was a Communist, certainly some reason to call, that doesn't help as some whether he was a Communist.

Second, the second one was the petitioner -- document showing the petitioner he participated in the nominating process of a person on the Communist Party ticket.

Now, we did it -- the Committee didn't call 12000 people.

He called a person that had participated in the nominee in process of which it had other information that he was a Communist.

The third or the second document which goes to whether he was a Communist was this news article from New York Times stating, I assume nobody has challenged its correctness so I'd rather not deal with the -- we're dealing with the New York Times.

I assume we're dealing with the fact that a lawsuit was filed by the American Labor Party against petitioner and others to oust them from the American Labor Party on the ground that they were allied, that they were affiliated with the Communist Party.

Justice William J. Brennan: I gather you don't rely on the one but his son whose first name was unknown was also identified at New York Times.

Mr. Bruce J. Terris: Well, I don't rely on the fact that his son was a member of the Communist Party but I rely in the fact that the --

Justice William J. Brennan: If that's all there was, you wouldn't think he was a member?

Mr. Bruce J. Terris: Well that -- I mean if his son was a member, that isn't of course what it might -- the emphasis Your Honor of the sentence that you read, I would put rather differently, it was also identified.

I assumed that means for the confidential source, it also identified Mr. Silber as well as the -- as well as the son Your Honor.

I don't -- if it just said his son was identified as a Communist then I wouldn't rely at all of that --

Justice William J. Brennan: Do you think that was enough?

Mr. Bruce J. Terris: No, I wouldn't even rely in there for collaboration.

Justice William J. Brennan: But now let's see, we know that if they pick him up off the street that isn't enough and that if they merely say that the son was a member, that is --

Mr. Bruce J. Terris: Yes Your Honor, I don't think --

Justice William J. Brennan: Well now, we're getting somewhere.

Mr. Bruce J. Terris: Well, Your Honor with all -- with all respect, I don't think that there ever has been a case in which the Committee has done either one of those two things.

Justice John M. Harlan: Do you find (Inaudible)

Mr. Bruce J. Terris: I find nothing in Barenblatt, Wilkinson or Braden.

However, I understood Mr. Rabinowitz, if I'm correct to say that, that isn't his contention that the Committee did not err in failing to state its grounds to him.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: I'd like to state --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: In our view, the Committee has reasonable ground to believe that either the petitioner was a member of the Communist Party or that he was closely allied to the Communist Party and we think it would've certainly been enough if he'd even been closely affiliate with the Communist Party, surely likely he would had information about Communist activities.

The Government has its second contention.

We believe that even if the Committee did not have a reasonable basis to believe the petitioner was a Communist, it certainly could reasonably believe that he had information to contribute to its investigation, which is all that Barenblatt, Braden and Wilkinson required.

The petitioner was admitted a long time member of the American Communications Association and a long time communications worker, 41 years.

The Committee had overwhelming evidence that the president, secretary treasurer, vice president, newspaper editor and other high officials of the American Communications Association were members of the Communist Party.

And therefore, we think he was reasonable for the Committee to subpoena petitioner even if he hadn't been a Communist to testify about what he knew about communist control of the American Communications Association.

This isn't an indiscriminate dragnet procedure.

I suppose if there's any -- that this man as much as anyone would know whether the Communist Party was directing and controlling the American Communications Association.

And it seems to us, that's all that Barenblatt requires, that the person reasonably have information, so even if he hadn't turned out to be a Communist, the Committee certainly was reasonable in subpoenaing him because of what he could expect was his knowledge of the American Communications Association and the industry.

Justice Potter Stewart: And as an officer of the --

Mr. Bruce J. Terris: And he was not an officer, he was a long time member.

Justice Potter Stewart: Member, long time member.

Mr. Bruce J. Terris: That's right and there's no -- and there's no indication that he -- that he was ignorant of the affairs of the American Communications Association.

After all, the Committee had before it indications, well the CIO's expulsion order for that matter, indications that the -- American Communications Association followed the Communist line.

Its high officers were Communist.

Somebody who was long time in the association certainly would be likely to have something to contribute, that at least he might have -- he might be able to answer the two questions involved in Counts Three and Four that he know of -- essentially, that he know of any of the person officers of the association were -- they'd been Communist.

I would now like to turn to petitioner's contention that the First Amendment was violated because the Committee was seeking information concerning other persons.

I've indicated briefly at the start of my argument that we think this intention is without any merit at all.

In brief, our argument is that --

Justice Potter Stewart: This -- and I don't want to delay you for this question as to what indictments -- indictment must contain, you say it's not in this case.

It's the same indictment as in the last case has tried in the District of Columbia and there is in the record of motion to --

Mr. Bruce J. Terris: That's right Your Honor --

Justice Potter Stewart: Right.

Mr. Bruce J. Terris: -- but it wasn't raised in this Court.

So that I assume therefore the -- the issue was not before the Court.

It wasn't raised either in the petition or in the briefs in the merits.

Unknown Speaker: Before the Court of Appeals.

Mr. Bruce J. Terris: I don't know Your Honor.

Justice Potter Stewart: And certainly for the trial court because --

Mr. Bruce J. Terris: That's right yes.

Justice Potter Stewart: -- it's in the record a motion striking it unless --

Mr. Bruce J. Terris: That's right.

Justice Potter Stewart: -- you quash it.

Mr. Bruce J. Terris: That's right but it's not before this Court.

Justice Hugo L. Black: And the indictment is the same?

Mr. Bruce J. Terris: In form yes sir -- yes Your Honor.

But in form, the indictment is the same with almost every other indictment in this field.

Justice Hugo L. Black: I'm not -- if it in the same form, it has the same defects, it is a defect but the others have that you've argued previous.

Mr. Bruce J. Terris: Not Yellin -- not Yellin --

Justice Hugo L. Black: No, you referred to Silber.

Mr. Bruce J. Terris: I think -- I think the six and the four all have the same form.

Justice Hugo L. Black: Do you mean by that, if it's a defect, they have the same defect, if it's a defect.

Mr. Bruce J. Terris: If it's a defect, they have the same defect and it was properly raised unlike by petitioner Silber and it's properly before the Court, yes Your Honor.

I think it isn't only the District of Columbia.

I think that the indictment in the Wilkinson case is also substantially similar.

And in the Braden case, it was the same except for this other issue Your Honor about willfulness versus the refusal being unlawful.

Justice Potter Stewart: That was actually contrasting with the Yellin case which we have per se of the Seventh Circuit.

Mr. Bruce J. Terris: Yes, yes.

And it made -- well, I guess Watkins came (Inaudible).

The government's position --

Chief Justice Earl Warren: In this case, wasn't the question of pertinency raised at all?

Mr. Bruce J. Terris: Oh yes, Your Honor.

Chief Justice Earl Warren: It does insert on our certain petitioner.

Mr. Bruce J. Terris: Pertinency was raised.

Two issues as to pertinency are before the Court.

I haven't got any dealt of that.

Chief Justice Earl Warren: Wouldn't that go to the indictment?

Mr. Bruce J. Terris: Mr. Rabinowitz is a much more skillful counsel then that Your Honor.

In all these cases, we have seven clear issues raised as to having the requirement that you state the subject under inquiry in the indictment, this case, it is not raised.

I don't know the reason why it isn't raised, but it isn't.

It's hard to believe that Mr. Rabinowitz meant his contentions as to actual pertinency in a price of a pertinency to go to the indictment.

If he did it, it's unusually unskillful such able counsel.

Petitioner Silber in our view has no special First Amendment rights because he was questioned about other persons, his rights are still freedom of speech and freedom of association which this Court held in Barenblatt, Braden and Wilkinson do not allow a witness to refuse to testify concerning Communist activities.

And in addition, petitioners own First Amendment rights could not have been infringed here, because he testified concerning his own activities.

Therefore, petitioner Silber is candid in admitting that it's essentially his argument rest on the fact that his self-respect and self-esteem require he claims that he not act as an informer.

The Government submits that this moral scruples worthy as they maybe in some circumstances, in some particular circumstances have never been recognized by this Court or as far as we've been able to ascertain by any other court as a legal defense under the First Amendment.

On the contrary, there's a well-established part of our jurisprudence that a citizen has a legal and civic duty to testify before properly constituted authority as to matters within his knowledge even if the expense of his friends.

And we submit that it's frivolous even to suggest that a witness whether it's before a grand jury, in a criminal trial or before a congressional committee can simply refuse to discuss the activities of other persons because he does not want to be what he calls an informer.

Justice Potter Stewart: The principle would apply in a civil trial, wasn't it?

Mr. Bruce J. Terris: I would think so Your Honor --

Justice Potter Stewart: That all employer's -- liability act case if --

Mr. Bruce J. Terris: I would --

Justice Potter Stewart: -- if the plaintiff had been in a Communist meeting or something, that became relevant to the (Voice Overlap) --

Mr. Bruce J. Terris: Well, I suppose that our argument that was broad -- maybe broader than this.

If self-esteem we're talking about and self-respect, I suppose that if you see a friend of yours commit murder and they asked you to testify at the trial you say, “I don't pitcher my friends.

I don't like being an informer.”

Well, a lot of us would think that there's something hits this wrong about having to testify about our friends and sending under them into perhaps to his death but that isn't -- never been a legal right.

Thank you Your Honor.

Chief Justice Earl Warren: Very well.

We'll recess now.

Featured:

Yellin v. United States - Oral Argument, Part 1

Tue, 25 Sep 2012 22:34:55 +0000

Case:

Yellin v. United States

Media File:

35_19620418-argument-1

Related Transcript:

35_19620418-argument-1

Transcript:

Argument of Victor Rabinowitz

Chief Justice Earl Warren: Number 477, Edward Yellin, Petitioner, versus United States.

Mr. Rabinowitz, you may proceed with your argument.

Mr. Victor Rabinowitz: May it please the Court.

The petitioner here was convicted of a violation of Section 192 of Title 18 for contempt of Congress for his failure to answer four questions put by a Subcommittee of the House Committee on Un-American Activities at a hearing held in Gary, Indiana in February of 1958.

The alleged subject under inquiry was Communist infiltration at the basic industry and it was the 10th investigation that the Committee has held on that subject.

The petitioner testified in between the Watkins and the Barenblatt decisions of this Court and then refusing to answer the questions put.

He relied on what he conceived to be his rights under the Watkins decision.

He also cited the vagueness of the authorizing resolution, his rights as he conceived them to be under the First Amendment, the lack of jurisdiction of the Committee over the subject of the inquiry.

He did not rely on the Fifth Amendment.

He was not tried until after the Barenblatt decision and he was found guilty on all four counts and received the maximum sentence possible under the statute namely one year in jail.

Prior to the time he testified, he had been a steelworker employed in Gary.

At the time he testified, he was an engineering student at the University of Colorado, subsequently, received a Fourth Foundation grant at the University of Illinois, he's now a candidate for his doctor's degree which I think he will probably receive in June.

Each one of these Section 192 cases come before this -- that come before this Court have tracks which distinguish this -- this case from all of the other cases and I'll state those facts, of course.

But I should like to state in all conduct that the constitutional issues in this case, which I propose to raise again, are indistinguishable from the constitutional issues in Barenblatt, Wilkinson and Braden.

And I propose to urge that the decision of the Court in those cases should be reviewed and should be overruled.

The petitioner was subpoenaed to appear on February 10th, 1958.

On February 6th, prior to the hearing, I, who was representing the petitioner, sent a telegram to the counsel for the Committee reading as follows, "Undersigned represents Edward Yellin and Nicholas Busic.

On their behalf, I request executive session in lieu of open session.

Testimony needed for legislative purposes can be secured in executive session without exposing witnesses to publicity."

This request was made in view of Rule IV (a) of the rules of the Committee which reads as follows, "If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation or the reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter at a public hearing."

Justice Potter Stewart: This witness had never appeared at an executive session, has he?

Mr. Victor Rabinowitz: Had never appeared on executive session, no, sir.

On the same day, I received, in response to my telegram, a telegram signed not by Mr. Tavenner to whom I have addressed my wire but a telegram signed by Mr. Arens, Staff Director, which telegram read as follows, "Reurtel requesting executive session in lieu of open session for Edward Yellin and Nicholas Busic.

Your request denied."

At the hearing in Gary, I sought to introduce these two telegrams into the record.

Congressman Walter who was residing at the hearing refused to accept the telegrams into the record and in the conformity with normal practice at congressional hearings refused to let me say anything.

He testified at the trial, and at that time he stated that he had never seen the telegrams.He had no idea at all as to what was in them.

He said that he thought, and I quote, "They were more or less in the nature of a request to postpone without grounds."

As a matter of fact, he said that he hadn't seen the telegrams until he got on the stand at the trial in Gary two or three years later.

He said all of this was a big misunderstanding that I made a mistake in sending the telegram to Mr. Tavenner, that I should have sent the telegram to him.

Arens, he said, had no authority to deny such a request.

He said, and I quote again, "I am sure this could not have happened, had you addressed your telegram to me.Had he knew one of the request?"

He said, and I quote again, "We might have a different situation today."

Justice Potter Stewart: Where are you reading from the record?

Mr. Victor Rabinowitz: Well, the first portion comes at record page 70.

Justice Potter Stewart: Is this testimony after trial?

Mr. Victor Rabinowitz: This is the testimony after trial, yes, sir.

And --

Justice Potter Stewart: And this is what, Mr. Arens or Mr. Tavenner?

Mr. Victor Rabinowitz: This is Mr. Walker.

Justice Potter Stewart: Walker.

Mr. Victor Rabinowitz: Mr. Walter, Congressman Walter testified.

Justice Potter Stewart: Chairman of the Committee -- of the Subcommittee.

Mr. Victor Rabinowitz: Yes, Chairman of the Subcommittee and, of course, of the Committee as well.

And he said at that time that long time ago when they decided to call Mr. Yellin, they had decided considered the question of an executive session, I had decided not to call him an executive session.

The reason that they had decided not to call him in an executive session was that they had received the report from Mr. Collins, a former F.B.I. agent, who was an investigator for the Committee.

And I quote from page 70 of the record, "His story was that this man was a known Communist, that he had been active in the international conspiracy, that he had deceived his employer.

And furthermore, he came within the category of those people that we were experiencing a great deal of difficulty in finding out about with respect to the colonization."

Question, "Did you assume from Mr. Collins' report that Mr. Yellin would be a witness who would refuse to give information to the Committee?"

Answer, "We had no way of knowing."

Question, "Well, what conclusions did you draw from the report of Mr. Collins which you have just related?"

Answer, "We concluded that this would be a fine witness for the Committee in support of proposed legislation having to do with colonization and two, having to do with the protection of our defense efforts and it is always worth the chance that somebody will testify."

Question, "But wasn't it worth the chance of calling him an executive session to see what his position would have been?"

Answer, "I'm sure that had you communicated this whole matter to the Committee before we left Washington so that we should -- could have given the due consideration, we would have and always do, we might have a different situation today."

I then said, "Well, I raised it at the hearing.

Couldn't you have called an executive session right then and there?"

And he said, "Well, I didn't know what was in these telegrams.

I thought you were just asking for postponement."

And then I said, at page 71 of the record, "When did you first learn that I had made an application for an executive session?"

Answer, "I believe today.

I'd never seen these telegrams, actually.

I heard you mention them, at least now my recollection is, I heard you mention them but I haven't seen them until this minute."

And then subsequently, at rule -- at page 72, he says that as I say, if he had known of the request, we might have a different situation today.

Now -- it's rather unjust to send them in to jail for a year because of the misunderstanding with the Chairman of the Committee, who wasn't sufficiently interested to read the telegrams which were -- which I was attempting to present to him at the hearing.

Justice Potter Stewart: What does -- what if anything does the transcript of the Subcommittee hearing show with respect to the request for an executive session?

Mr. Victor Rabinowitz: At the opening of the hearing, the witness identified himself and this is -- well, I -- I think that the hearing is attached to the record that -- that is the printed transcript, it's attached to the record that Your Honors have.

It appears at page 1974 of the printed record which should be an appendix to what Your Honors have.

And Mr. Yellin was asked about his name and where he lives and then I said, "Mr. Counsel, I wonder whether it would be possible to read into the record the exchange of telegram -- telegrams between myself and the Committee in connection with the witness's testimony.

I would like to have it appear in the record.

"The Chairman said, "We will decide whether it will be made a part of the record when the executive session is held."

Congressman Walter said that no executive session ever was held.

"Go ahead."

And then I said, "Mr. Chairman, I sent the telegram because I wanted them to appear.

I don't care whether they appear publicly or not.

I do want it to appear that the exchange of telegrams occur.

I didn't do it just to increase the revenue of the telegram company."

And the Chairman said, "Well, whatever the reason was, whether it's been stated or otherwise, it will be considered in executive session."

I then said, "May I state?"

And the Chairman said, "Do not bother.

You know the privileges given you by this Committee.

You have appeared before often enough.

You know as well as anybody.

Go ahead, Mr. Tavenner."

And I know from having appeared before this Committee on previous occasions that this is usually the prelude to the possibility that counsel will be asked to leave the witness room -- the hearing room and so I used my discretion and I sat down.

I would like to note first that the standards used by Mr. Walter in applying Rule IV of the Committee were quite different from the standards used by the Committee, standard set forth in the rules rather.

The rules say that an executive Committee shall be held when the Committee believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation.

Congressman Walter, in his testimony at page 70, said that they had decided to hear Mr. Yellin at a public session instead of an executive session because the man was a known Communist.

He'd been active in the international conspiracy.

He had deceived his employer.

And then he came within a category of those who might give information.

Now, the Government has responded to this by saying that, well, under the rules, no one has a right to an executive session.

And I suppose that that is probably true.

I do submit, however, that under the rules, everyone has a right to a good faith consideration of a request for an executive session.

Such a request was made.

It was communicated from counsel to counsel, which is the normal way of communication between parties to litigation or what, this possible potential litigation.

And there was no good faith or any other kind of consideration given to the request in this instance.

The Committee is bound by its rules.

This Court has frequently so held.

And I submit that under the circumstances here, the petitioner was entitled to a good faith consideration of his application.

He never received any consideration of his application either in good faith or otherwise and that these grounds alone are sufficient for our reversal here.

I would like next to move to a problem that is raised, I think inherently, in all of the cases since the Barenblatt decision, although I don't believe that the Court has ever addressed itself to it as fully as I would like to have the Court address itself to it on this occasion.

In the Barenblatt case, the Court used this language.

When First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the Courts of competing private and public interests at stake in the particular circumstances shown.

I cannot, as a philosophical matter, accept the balancing theory at all but as I think, one of the members of this Court said, assuming what I cannot assume namely that the balancing theory is what we are to adopt here.

I was confronted at the trail of his case of following the rule that the Court had laid down in the Barenblatt case and, therefore, I address myself to the question of balancing.

What are we balancing here?

The Court first speaks in terms of the competing private and public interests at stake in the particular circumstances shown.

To me, that sounds like this is the question of fact to be determined in each case in accordance with the particular circumstances in each case.

Now, it's hard and I was puzzled about how to address myself to this problem but it wasn't my language and it wasn't my ruling, it was this Court's ruling.

And so at the trial, I attempted to address myself to this question, what are we balancing?

What are the elements and the scale?

And what way are we to assign to each of these elements?

Who was to decide this question?

The Barenblatt decision says resolution of the issue always involves a balancing by the Courts.

And so the Courts, presumably, in the first instance, the trial court has to balance these issues.

Now, part of the question is easy.

On the one side of the balance is the public interest in national security.

How much weight is to be given to that side of the scale?

Is it possible that each judge reads the morning newspapers, decides how much protection the national interest requires this day or this year and then ascribes in some way and this becomes almost a metaphysical problem, how much weight he's going to give to the -- to that aspect of the national security?

Or is this a question of fact that's to be determined on the basis of evidence which is presented in Court?

Since the first possibility seem to me inconceivable, I address myself to the second and I attempted to or for evidence in Court as to the nature of the national security interest involved and how much weight should be given to it.

And I could think of no better way to approach to this problem than to present expert testimony on it and that's what I tried to do.

I presented an expert witness.

It was Professor Thomas I. Emerson, professor of law at Yale University, who has devoted the last 10 or 15 years of his life to a discussion of problems involving freedom of speech and national security and their impact on each other.

And I offered him as an expert witness on the question of how much weights to be given to part of this of this -- on the scale that -- to solve this factual problem.

His testimony was excluded.

The court said this was not a proper subject or testimony in court.

The Court of Appeals later said, this is a question of law to be decided by the Court and therefore the exclusion of the testimony was proper.

I don't understand what that means.

But in any event, Professor Emerson's testimony was -- was excluded as I say, however, it does appear in the record as an offer of proof and it can be read by the Court at pages 91 to 114 inclusive and in our opinion, it should have been admitted.

I'm now addressing myself to the weight of the evidence.

I'm not addressing myself to whether it proves the case that I was trying to prove but rather to the admissibility of it.

And I submit that the Court was in error in excluding that testimony.

The second thing that I tried to do in meeting this question of how much weight has to be given to the national interest was to attempt to prove at the trial that the information that was sought of the petitioner by the questions which are the subject matter of the inquiry, which are the subject matter of the indictment here, that these questions were trivial, that they will miniscule, that they were so unimportant that even if they were placed in this scale, they wouldn't amount too much.

It is conceited now that as to two of the questions, namely, "Where did you reside in 1957 and were you a member of the Communist Party in 1949" were corroborative, corroborative of information that was already in the files of the Committee.

The other two questions, which were questions formed in this jargon that the Committee has developed, "What do you know about colonization in the steel industry?"

Incidentally, I object to those questions on the ground that this word "colonization" is a peculiar word of ought that experts and the Committee know but the witnesses at a congressional Committee aren't necessarily required to brush up on but of course it was given concurrent sentence so even if I win on those two questions, I haven't won my case.

In any event, it was my argument that these two questions relating to colonization in basic industry had been the subject of testimony at nine prior hearings in Buffalo, in Flint, in New Orleans, in Denver, in Baltimore, all over the United States.

Now, with three or four other witnesses who cooperative fully at the Gary hearing until the great deal about this subject and that therefore this testimony on these two questions was cumulated.

Now, the Government says, and I think the Government is right, that even corroborative questions and even cumulative questions are pertinent because they're corroborative or cumulative.

They maybe pertinent, but they don't weigh much.

They have no great weight in the balance which this Court has directed should be struck in each particular circumstance.

That is the point of my argument with respect to these questions.

Now, what's on the other side of the balance?

To balance the public interest, the national security, the weight to which we still don't know and how much weight is to be given to those interests.

I think we can agree here that on the other side of the scale are those great rights that are protected by the First Amendment, the right of privacy, the right of free speech, the right of assembly and above all, and most important of all, the right of the public to hear a debate of the important issues that are confronting the world today and confronting the United today -- United States today in an open society without fear of a subpoena from a congressional Committee.

Those are the rights on the other side of the scale.

I cannot believe that the Barenblatt, Braden and Wilkinson cases can be explain by the feeling of any member of this Court that those First Amendment rights are unimportant or that they don't require protection.

As a matter of fact, this Court has protected those rights and has protected them very effectively in cases like NAACP against Louisiana, Bates against Little Rock, Shelton against Tucker and others.

My time is up.

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

Featured:

Yellin v. United States - Oral Argument, Part 2

Tue, 25 Sep 2012 22:34:56 +0000

Case:

Yellin v. United States

Media File:

35_19620419-argument-2

Related Transcript:

35_19620419-argument-2

Transcript:

Argument of Victor Rabinowitz

Chief Justice Earl Warren: Number 477, Edward Yellin, Petitioner, versus United States.

Mr. Rabinowitz, you may continue your arguments.

Mr. Victor Rabinowitz: Thank you sir.

At the close of the session yesterday, I was discussing the balancing theory which has been adopted by this Court in the Barenblatt, Braden and Wilkinson and other similar cases and was pointing to what I felt was a conflict between the doctrine that had been applied in these cases and the doctrine that had been applied or the results at least that had been reached in cases decided contemporaneously such as National Association for the Advancement of Colored People against Louisiana, Bates against Little Rock, Shelton against Tucker and a few others involving the integration of problem in the cell.

May I with all due respect to this Court, suggest that perhaps the explanation of the Barenblatt line of decisions lies in the fact that the ideas and the speech in the assembly which was seeking protection in those cases were ideas, speech in assembly which we hate and which we abhor?

Well, the ideas that were seeking protection and the assembly that was seeking protection invades Shelton, the Louisiana case and the others are ideas which today we find tolerable and in some cases even attractive.

This of course is not a permissible application of the First Amendment to the Constitution if that amendment is to be given significant content.

It is contrary to a long line of decisions running back to the days of Judge Brandeis and I'm not going to quote to Your Honors language which is very familiar to you from decisions by Judge Brandeis, by Judge Jackson, by Judge Black, in Richards against California and in many other cases and by Judge Holmes of course.

All of them have pointed out that the primary purpose of the First Amendment is to give protection to the ideas that we abhor and that unless that it is given that interpretation, the Amendment has no a very significant meaning.

Justice John M. Harlan: (Inaudible) Barenblatt?

Mr. Victor Rabinowitz: Yes sir.

Well, no sir.

I don't have to overrule Barenblatt to succeed in this case.

I think that I have, as I previously indicated, a reversible -- reversible error with respect to the question of the failure to grant an executive session.

I believe further that I have reversible error and that the Court refused to admit the testimony of Professor Emerson on the balancing theory.

And I believe further that within the bounds of Barenblatt and within the bounds of the balancing theory which is I said before, I am assuming although I cannot agree with it, that on balance in this case unlike what the Court felt was the situation in Barenblatt.

On balance in this case, the balance lies on the side of the petitioner and on the side of the great First Amendment Rights which our for the protection of public discussion in the United States rather than on the other side of the scale which Your Honor has held in Barenblatt, must be weighed against the public and private interest on the other side.

Justice John M. Harlan: The Congress of the United States has no power to investigate on the field?

Mr. Victor Rabinowitz: Oh I think Congress of the United States has power to investigate on the field.

No one is challenging the right of Congress to call witnesses to take testimony, it has called hundreds of witnesses who have given testimony voluntarily, given testimony freely, have given a tremendous amount of testimony and even --

Justice John M. Harlan: You're not asking us to --

Mr. Victor Rabinowitz: Oh I'm asking you to overrule Barenblatt but I haven't gotten to that.

I was just about to come to that point now.

As I said at the beginning, in its constitutional issues, I feel that this case is undistinguishable from Barenblatt.

And from now on, shall we say, I am asking the Court to overrule Barenblatt although I do not believe that anything I have said up to this point requires the overruling of Barenblatt but rather it requires an application of the balancing theory which will throw the balance in this case in the other way, and I'm not arguing what should have been -- how the balance should have been thrown in the other cases because those other cases are not here nor do I represent those other petitioners.

I would now like to turn to the constitutional issues which as I say call for a reversal of Barenblatt.

I have prepared an argument on this aspect of the case and I had intended to show first that the charter of the Committee Rule 11 was unconstitutionally vague and that it was improper to attempt to give it meaning by a search of legislative history at least in a criminal case.

However, proper that might be for historical or other purposes.

I had intended to argue further that since the Committee by its charter was limited to investigation of Un-American propaganda and even assuming that we could assign a meaning to that somewhat vague expression.

It would give the Committee the power to investigate speech because propaganda is merely another word for speech, and that that was improper.

I had intended to argue that this particular hearing had nothing to do with propaganda anyhow.

And I had intended to argue further that this was a good case of exposure for exposure sake.

After preparing all of this argument with great diligence, I reread the dissenting opinion in the Barenblatt case and I found that everything that I had intended to say were said in that dissent or almost everything I have intended to say were said in that dissent.

And for me to repeat all of the arguments that were made there and the decision that was handed down only I think two and a half years ago, what I think to be a -- in position on the Court, it would be merely repeating arguments and words which I have thought -- sure the Court is fully familiar with and I would not omit a word within if I have -- with permission of the author of the opinion, I would like to incorporate that dissent so as to speak by reference into this argument.

If I may however, at the risk perhaps of "gilding the lily" add just a few words to what was said in that dissent.

The dissent was written in 1959.

In the two and half years that have passed since that date, the process of the expansion and the growth of the seeds planted in ACA against Douds against which the dissent won in ACA against Douds and won again against in the Barenblatt case.

Those seeds have continued to expand and the doctrine of ACA against Douds has continued to apply further and further so that we have had since Barenblatt, the Braden case, the Wilkinson case in the specific area of congressional committees, the Scales case, Suppressive Activities Control Board case and perhaps four or five other decisions generally in the area of the rights of communist.

The second point I would like to make is addressed to the question of exposure for exposure sake which is also discussed in the Barenblatt decision and in other decisions as well.

I would like to note here the failure of the Committee to grant an executive session which I have already noted as an indication of the purpose of this Committee in seeking to call people before it for the purpose of exposing them.

In the course of the hearing Mr. Tavenner said he didn't interview the petitioner in advance to find out what his testimony would be because he didn't think the witness would cooperate, that's perhaps another way of saying that he didn't call -- he didn't subpoena the witness in advance because he didn't think the witness would testify.

And it doesn't seem to me that calling witnesses in a congressional investigation with the knowledge of understanding or belief that they aren't going to testify is the proper way to conduct the legislative investigation; the purpose of which is to get information and not to expose persons for their political belief.

In this case, the Committee had a great deal of information on the situation in Gary.

It had several so-called cooperative witnesses in Gary.

It called about ten other witnesses and as I have said before, it had engaged in nine previous investigations on this general subject and the only difference between this hearing and let us say, the hearing in Buffalo was that one hearing was in Buffalo and the other was in Gary.

But for legislative purposes, the fact adduced in both of those hearings was identical.

I would like to add just a few words, they're not in the record before this Court but they are matters, I believe of public record or most of them are, as to what happened after this hearing.

As I said before, the petitioner received the fourth foundation grant to study at the University of Illinois.

When the appearance before the --

Justice Potter Stewart: I thought he was from the University of Colorado.

Mr. Victor Rabinowitz: He was originally a graduate of the University of Colorado and he did -- is now doing graduate work at Illinois.

He received the fourth foundation grant of the University of Illinois and when this appearance before the congressional committee came to the attention of the faculty at Illinois, an investigation was held, the dean, after a great deal of campus activity on the subject and much distress to the petitioner, the dean after a faculty investigation, found that the petitioner had returned in good faith to the academic world.

Subsequently, he received a Nat -- National Science Foundation grant.

This came to the attention of Congressman Scherer, who made several speeches on the floor of Congress about how these persons who had refused to testify before the Committee had received government aid and as a result of those features, the National Science Foundation grant was revoked so that the Committee even after the hearing has been pursuing its exposure purposes.

Finally, I would like to say one more thing and with this, I shall close.

The most important aspect of the First Amendment to the Constitution is I believe not the right of the petitioner to belong to the organization he wants to or to speak or to remain silent.

The most important right is the right of the public to hear what he or whatever people may have to say.

And it is here that our democracy faces its greatest threat because today, while we have some degree of democratic discussion on high intellectual levels among people who are secure, there is no free in democratic discussion among the masses of the people on the great issues of the day.

And this is largely because of fear.

Would you advocate peace?

Two years ago, 20 or 30 members --

Justice John M. Harlan: What investment is that?

Mr. Victor Rabinowitz: I'm about to expand on it sir.

Would you advocate peace?

20 or 30 years ago -- 20 -- two years ago, 20 or 30 members of the Committee for saying Nuclear Policy would call before a congressional committee and examined extensively on their political beliefs.

Would you advocate a change in our policy to a Cuba?

Last week, this very Committee announced that it was traveling to Los Angeles for the purpose among others of subpoenaing members in Los Angeles of a Committee called, "The Committee for Fair Play for Cuba."

Would you advocate abolition of the Committee?

I merely called to your attention the decision in the Wilkinson case.

On the great issue of the recognition of China, there is hardly anyone to subpoena.

We have to go back into history to examine what happened to the Institute of Pacific Relations.

The Amerasia Affair, the prosecutions, two, I believe they were of Professor Lattimore (ph).

Would you advocate socialism?

There is the threat of the Subversive Activities Control Board which may find you a member of the Communist Party or which may find your organization; a Communist Action Organization, a Communist-infiltrative Organization, a Communist Dominated Organization and I hate to predict what maybe the next kind of organization, perhaps a Communist Mislead Organization.

Would you engage in the theoretical discussion of communism?

Last year, I believe it was or two years ago, this Committee held an investigation of a foundation which gave grants to theoretical discussion of Marxism and also called before it a group of teachers who are teaching at a school of Marxist studies in New York.

Furthermore, this situation is not getting any better.

At least from the point of view of a lawyer who reads the advanced sheets of this Court, it seems to be getting worse.

Such a situation would have been serious enough 50 years ago but in the dynamic world of today, it poses a very serious threat to our existence as a free and democratic nation.

There is today a world wide debate going on, all over the world, Vietnam, in Argentina, Western Europe, Cuba, in Africa, a debate on the relative merits of two great opposing forces, two great social systems.

I suppose for a shorthand purposes, we can say the capital system of free enterprise and the socialist system of a planned and controlled society.

Unless our people can debate this, and debate this not nearly in the magazine section of the New York Times but debate them in their trade unions, on the street corners, in their clubs, in their political parties.

We are acting out of the debate and as the democracy, it is doubtful as to whether we can survive.

We can't survive perhaps as a military machine but not as the United States that we all know and love.

In this atmosphere of fear where issues are debated by people who are either very secure or most people not being secure are debated only with the fear of a congressional committee subpoena or a Subversive Activities Control Board prosecution.

Free debate cannot exist.

The subpoena may never come, most of the time it does not come.

The prosecution under Subversive Activities Controlled Act usually does not happen.

But Your Honors, I can tell you that in the last year, I have had 20 people come to me and say, "I was a member of the Communist Party years ago, is it alright for me to use my passport and go to Cuba?"

I'm -- excuse me, can't go to Cuba with the passport, go to -- go to Europe.

People are frightened and in this atmosphere a free and democratic discussion cannot exist.

I have the greatest respect for this Court of course and it is because I have such great respect that I had these last few words.

I cannot say that this Court is responsible for all of this that has happened.

But I think that if the record is examined objectively, it must be said that it bears its share of that responsibility.

Beginning with ACA against Douds, to Dennis, Barenblatt, Wilkinson, Braden, Scales, SACP and a scour of other cases, this Court has thrown its not uncon -- inconsiderable weight on what I feel is the wrong side, had it not done so, had it encouraged and supported the drive to political conformity.

It would not have given substance to what one member of this Court has referred to as the "black silence of fear."

I myself feel some very slight responsibility for this.

Some years ago, longer ago than I care to remember, I argued American Communications Association against Douds and sometimes I think that had I been a better pleader, perhaps I would have won the case and all of these wouldn't have happened.

Perhaps, I'm now seeking redemption for my small sin.

Justice John M. Harlan: What case are you residing?

Mr. Victor Rabinowitz: ACA against Douds sir.

It will take us a generation or two to get out of the utmost of fear -- atmosphere of fear to which we have been passing.

I hope that it is not too late to begin now, certainly, it is not too early.

Thank you sir.

Chief Justice Earl Warren: Mr. Terris.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice, may it please the Court.

The start of my argument, I would like to state the Government's basic position and the most important issues in all three of the contempt of Congress cases which are being argued today.

These basic issues are, first, whether the questions which were asked, the petitioners were in law of pertinent to the subject under inquiry.

Second basic issue is whether the petitioners were apprised of the pertinency of the questions which they were asked to the subject under inquiry at the time that they appear before the Committee.

The third basic question is whether the Committee's questioning of petitioners violated their rights under the First Amendment and the fours -- fourth basic question is whether the Committee's inquiry had a valid legislative purpose.

The Government submits that all four of these questions are squarely controlled by the recent decisions of this Court in the Barenblatt, Braden, and Wilkinson cases.

In fact, petitioners in their briefs and petitioner Yellin here in oral argument, seems to agree at least as to the controlling principles.

While petitioners indicate disagreement with those cases, they accept their applicability and argue that the particular facts of these cases, the cases which are now before the Court dictate a different result.

And therefore, we submit that the issue which is before the Court, both as to pertinency and as to the First Amendment is whether the particular facts make these cases distinguishable from Barenblatt, Braden and Wilkinson.

It's the Government's position that the cases which are now before the Court are substantially similar on their facts to Barenblatt, Braden and Wilkinson and insofar as the facts are different, that the cases which are now before the Court are considerably stronger for the Government.

I would now like to turn to this particular case, the Yellin case.

The Committee at the time the petitioner appeared before it was conducting an investigation of Communist activity in basic industry and particularly the steel industry in the Gary, Indiana area.

The Committee had considerable information of a major effort of the Communist Party to colonize, that is to infiltrate basic industry throughout the United States and more specifically, to colonize the steel industry in the Gary, Indiana area.

Petitioner Yellin was convicted for refusing to answer four questions, although he refused to answer considerable number more.

The first question on which petitioner was convicted was where he resided prior to September, 1957.

The Committee explained that this question was designed to establish, the petitioner had lived in the Gary area and that therefore he would likely have knowledge of Communist activities in that area.

The second question on which petitioner was convicted was whether he knew of Communist Party colonization in steel unions in the Gary area before 1957.

The third question was whether petitioner was a member of the Communist Party on June 23rd, 1949, which was the date that he applied for employment at the steel mill in the Gary area.

And the fourth question on which petitioner Yellin was convicted was whether there were Communist Party colonizers in the steel unions in Gary in 1957.

And therefore, all the questions on which petitioner was convicted involved with petitioner's own Communist Party activities or that -- or Communist Party activities generally in the steel industry in Gary.

The petitioner here on my petitioner's prominent silver does not raise any issue as to pertinency.

He does not claim that the questions which he refused to answer were not in law of pertinent to the subject under inquiry nor does he claim that the Committee failed to apprise him of the pertinency of the questions to the subject under inquiry.

Petitioner Yellin's major contention is that the Committee's questioning of him violated his rights under the First Amendment.

As petitioner admits his basic arguments that the Committee had no valid legislative purpose and that his First Amendment Rights were violated, were answered by this Court in Barenblatt, in Braden, and in Wilkinson.

However, petitioner says that his case is different because here, the private interest of the petitioner in silence outweighs the governmental interest of the Committee in compelling him to answer.

This Court in the Barenblatt case emphasized the great, the overriding governmental interest in protecting the national security from go -- from Communist subversion and this determination did not standalone.

It reflected of series of earlier decisions such as the Dennis case which upheld portions of the Smith Act, American Communications Association versus Douds which upheld the Non-Communist Oath Provision of the Taft-Hartley Act as well as numerous other cases in addition reflected the detailed findings of the Congress in Section 2 of the Subversive Activities Control Act.

In Barenblatt, this Court found that this obviously vital governmental interest in preventing subversion justified an investigation by the very same Committee which is involved in this case into Communist activities in educational institutions.

And in Wilkinson and Braden, this Court held that the governmental interest in protecting against subversion justified this Committee in investigating Communist Propaganda Activities.

Comparing the situation which was before the Court, the situations which was -- were before the Court in Barenblatt, Braden and Wilkinson to this case, the governmental interest here is considerably stronger both education and propaganda are of course areas particularly protected by the First Amendment.

Here on the other hand, the Committee's investigation was at -- was in the field of basic industry and particularly to steel industry which is certainly less directly protected by the First Amendment.

In addition, while it was reasonable for Congress to believe that the danger from Communist subversion was substantial in education and propaganda.

Certainly, the danger there was at less direct to the national security in Communist activity in basic industry.

In fact, it has been recognized for 40 years, as it is reflected in this Court's decision in American Communications Association versus Douds that one of the most important steps used by Communist to subvert democratic governments is to infiltrate and control labor within basic industry.

Certainly, the Congress could reasonably believe that such attempts by Communist in the United States presented a substantial danger which should be investigated at the least, and if found necessary, legislated against.

This Court in Barenblatt also pointed to three other considerations besides the danger of subversion in balancing the governmental and individual interest which were there at stake.

First, the Court in Barenblatt noted that the Committee was not attempting to pillory Mr. Barenblatt and this is equally true here.

Committee made a considerable effort to persuade petitioner to testify and even explained the pertinency of the questions to him despite the fact that he made no specific objection on the grounds of lack of pertinency.

Second, this Court emphasized that Mr. Barenblatt had not been subpoenaed as a result of indiscriminate dragnet procedures, lacking in probable cause for belief that he possessed information which might be helpful to the subcommittee.

And again, this is equally true here.

Two persons identified petitioner as a member of the Communist Party.

These were live persons.

This did not come from the files of the Committee including Francis Crawley who identified petitioner as a fellow member of the Communist Party at the University of Michigan at the very same hearing that Francis Crawley similarly identified Mr. Barenblatt.

And finally, this Court in the Barenblatt case said that the relevancy of the questions is not open to doubt and this is even more clear in this case.

Petitioner was repeatedly told that the Committee was investigating Communist activity and basic industry in the Gary, Indiana area.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Yes it did.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: It's not in -- it's not in the -- it's not in the -- in the record.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: It's in the petition sir.

It's 287 F.2d 292, 287 F.2d 292.

And finally, this Court said in the Barenblatt case, the relevancy of the question is not opened to the doubt and as I have said that this is equally true here.

Petitioner was told specifically of the subject under inquiry and the questions he refused to answer your concerned is on Communist Party activities or Communist Party activities in the steel industry in Gary.

Petitioner, however, claims that this case is different from Barenblatt because the Committee had all the information on Communist activities which petitioner could possibly have supplied.

Petitioner contends that the Committee knew where Petitioner reside it before 1957 and that he was a member of the Communist Party in 1949 which was the question sought in the -- which was -- which was the information sought in the questions underlying counts one and three.

And Petitioner further claims that the Committee knew from previous hearings concerning Communist activities and basic industry, the answers to the questions involved in Count 2 and 4.

Therefore, petitioner argues the Committee wanted only collab -- collaboration which does not outweigh the individual interest in silence.

The Government submits the petitioner's first mistake in this argument is a considering only the information which was sought from the particular questions on which petitioner was convicted.

The answer to anyone question or even any four questions, they will not be vitally important to the Committee's investigation.

In order to determine the interest of the Government in disclosure, one must weigh the purpose of the entire investigation in the Communist activities in the steel industry and the possibility that the witness can contribute to this investigation.

And therefore in the Barenblatt case, this Court weigh the Government's -- the Committee's interest in Communist infiltration and education, not the interest of the Government in obtaining the answers to the particular questions on which Mr. Barenblatt was convicted.

Petitioner's second mistake is in ignoring the important governmental interest and having a well-informed witness confirmed previous information particularly when the existing evidence is in a controversial area as this one certainly is, and is therefore likely to be challenged.

The questions which this Court upheld in Barenblatt, Braden and Wilkinson, all sought information concerning whether the witness was a member of the Communist Party to collaborate evidence of the Committee already had in all three cases that the witness was a member of the Communist Party.

And in addition, it is clear that the Committee was not merely seeking in the questions involved in Counts 2 and 4 to confirm evidence that it already had.

The previous Committee hearings concerning Communist activities in basic industry and more specifically in the steel industry concerned different although related subjects to the subject of Communist activities in the Gary area for those hearings all involved Communist activity and basic industry in other parts of the country.

For example, the Buffalo hearings concerned Communist activity and basic industry in the Buffalo area.

The Committee therefore could have a valid interest in seeing whether the pattern which was established in Buffalo also apply throughout the rest of the United States and that therefore, legislation might be necessary.

The record also shows that the Committee had little or no information of Communist Party activities in Gary after 1952 from other witnesses and did it hope to obtain this information from petitioner.

At the least, Petitioner has never shown that he could not have provided new information and certainly cannot unilaterally determine that he had no new information and that therefore, he need not testify before a properly authorized congressional Committee.

Petitioner Yellin also claims that his case is different from Barenblatt, Braden and Wilkinson because here, the trial court excluded the proffered expert testimony of Professor Emerson on the issue whether petitioner's First Amendment rights had been violated.

This testimony is included in full in the record at pages 100 to 115 and was in response to the following question.

Everyone opinion as to the various factual considerations which have to be taken into account in balancing the competing public and private interest at stake in the circumstances presented.

The trial court held that this question asked for an involved legal opinion and that Professor Emerson's answer constituted such a legal opinion.

Without going into Professor Emerson's lengthy response in detail and then to summarize at pages 28 to 30 of our brief, we submit that the ruling of the trial court which was approved by the Court of Appeals was correct.

The proper testimony consisted largely of legal factors which the Court should consider not with factual evidence relating to those factors.

Professor's Emerson state -- Professor Emerson's statement in short reads by the closing argument of very able counsel summarizing his client's legal position under the First Amendment.

In fact, Your Honor it does -- parts of itself considerably like Mr. Rabinowitz's closing remarks here today, while such statement it is of course proper when presented by counsel is legal argument, the lower courts will correct and it did not constitute evidence.

But even if we are wrong and the lower courts are wrong and Professor Emerson's testimony was properly admissible, we submit petitioner's conviction and nevertheless should not be reversed.

Justice Hugo L. Black: May I ask you just one question in connection with expert testimony?

Should I recall that the Government of short time ago argued that expert testimony should be admitted from time-to-time to approve or disapprove obscenity, do you think that had any relation to this point?

Mr. Bruce J. Terris: Well, I assume Your Honor that that kind of testimony would go to the question whether -- whether the particular documents were obscene not on the -- not on the standards which should be applied by the Court here --

Justice Hugo L. Black: -- (Voice Overlap) -- I may be wrong and I recall it was an order to determine whether it was offensive to the more reason of the community.

Mr. Bruce J. Terris: That's right Your Honor and I -- and I assume that is a -- is a factual question.

I don't think that this -- that the question Professor Emerson testified to is the same that what -- what he stated was quite similar to -- if you put the majority opinion in Barenblatt next to the dissent, his testimony once -- he first deals basically with the majority position that there's a great danger to the national security from Communist subversion and then it goes down the line at the dissent that the interest of the individual in silence is greater.

I don't think that's the same type of issue which was involved in the obscenity case.

But even if there was admissible, the Government's further argument is this -- that petitioner Yellin's contention should anyway be sustained but the testimony was offered solely concerning petitioner Yellin's claims under the First Amendment.

And this was a legal issue which this Court in Barenblatt, Braden and Wilkinson decided for itself and therefore, this Court itself consider Professor Emerson's statement which is fully set fort in the record to determine if petitioner Yellin's First Amendment rights were actually violated.

And if we so consider Professor Emerson's statement, a fair summary is that a danger of -- that the danger from the Communist overthrow of the United States Government is not substantial but the threat to First Amendment rights from congressional inquiries in the Communist activities is extremely serious.

We submit that this statement adds nothing to the competing considerations waived by this Court in Barenblatt, in Dennis and American Communication Association versus Douds.

And therefore, we submit that Professor's -- Professor Emerson's statement presented no basis for changing this Court's determination in the earlier cases.

The congressional committees can compel witnesses to testify concerning communist activities without violating the First Amendment.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: That's right Your Honor.

That's right.

And of course in all these cases, the basic First Amendment rights having considered by this Court is a question of law.

Chief Justice Earl Warren: Well, Mr. Terris, assuming that they're accepted rather the -- the Barenblatt doctrine that there is balancing processes between the rights of individual and the rights of the -- of the Government.

Is it your position now that that all that balancing has been done and that there is nothing open to the -- to the defendant in the case of this kind to balance?

Mr. Bruce J. Terris: Your Honor I would -- I wouldn't like to say that it's done for all time.

Chief Justice Earl Warren: Well, we'll just say for all cases at this time.

Mr. Bruce J. Terris: Your Honor, if petitioners can show that there is any difference today from what from -- as to the factors -- from the factors which this Court considered in Barenblatt, only two and a half years ago that -- that is one thing, but that is not, that is not what Professor Emerson testified to.

He basically testified to what the Court should consider.

Now, this Court already held in Barenblatt what -- what our lower courts could -- should consider.

In addition, his testimonies almost and precisely the same time (Voice Overlap) --

Chief Justice Earl Warren: Would you mind --

Mr. Bruce J. Terris: -- this Court is doing --

Chief Justice Earl Warren: -- telling me -- would you mind telling me please, what kind of testimony would be available to a defendant in the case of this kind?

Mr. Bruce J. Terris: If you -- as to the -- as to the balancing process?

Chief Justice Earl Warren: Exactly.

Mr. Bruce J. Terris: Well, Your Honor --

Chief Justice Earl Warren: Either there is -- there is something available to him where there isn't now.

Now, if there is, I just like to know what it is.

Mr. Bruce J. Terris: Your Honor, the way the Government sees the relationship between Barenblatt, Braden and Wilkinson on the one hand and any city in Alabama, Shelton and Tucker, Bates and Little Rock and the other which all involved the balancing testing, came out different ways.

Is that Court held in Barenblatt that there was great danger from subversion from communism?

And the questions as the communism could be asked because of the overwriting governmental interest in that subject.

On the other hand, an N.A.A.C.P.in Alabama, in Bates and Little Rock, this Court that found there was no interest of the State in finding out the membership list of the -- of the N.A.A.C.P.

And in Shelton and Tucker, this Court found that there wasn't -- there wasn't sufficiency in -- sufficient interest to find out the membership of teachers in all their organizations.

Now, it's interesting in Shelton and Tucker, this Court carefully said that it was not deciding that a State couldn't ask questions of teachers concerning their membership in certain organizations or they could -- that the State was not precluded from asking from certain teachers their membership in all organizations.

Now, if -- the Government submits that what these cases altogether show is that when the -- when a Committee, when the State or Federal Government is investigating something is serious, is Communist subversion that the governmental interest outweighs the private interest.

Now, if the question that was asked was so clearly on its face unrelated to anything to do with Communist activity, I suppose that there would be unconstitutional to ask the question, although it probably also not be pertinent.

Chief Justice Earl Warren: Mr. Terris, may I put it this way through you then?

Do -- under the Barenblatt case and the Wilkinson case, is it your position that every witness regardless of the circumstances of his case stands in exactly the same position before the Committee so far as the balancing process is concerned, namely that there is -- there is nothing -- there can be nothing in the -- in the circumstances of any particular case that would change it and that is a matter of rope.

We must now say, in every case where a -- where a pertinent question is asked that there is no countervailing interest that -- that can prevail?

Mr. Bruce J. Terris: Your Honor, the answer is no.

This Court in Barenblatt's gave three considerations which have to be applied in each individual case.

One of the considerations was whether the witness was called as a result of dragging and procedures.

I've arg -- well, I assumed that there's no absolutely no basis that can believe it he has any information about the subject under inquiry.

Chief Justice Earl Warren: Where do you get a definition like that?

Mr. Bruce J. Terris: Well I -- I think that is the meaning of what -- of what this Court said in the Barenblatt case and is repeated substantially in those terms in both Braden -- both Braden and Wilkinson that Mr. Barenblatt was not subpoenaed as the result of it and, “Indiscriminate dragnet procedures lacking and probable cause for belief that he possess information which might be helpful to the subcommittee.”

Now, applying that standard, if a witness was just called off the street, they had no -- no indication that he had any information about Communist activity in the particular Communist activity which the Committee was investigating then I think this would probably violate the First Amendment.

Now, the two other considerations which are in Barenblatt; one is that whether the Committee was attempting to pillory the witness and another one was whether the questions were relevant.

Now, I've argued that it -- in this case as in the other two cases, all three of these standards are met.

And then I -- the Government submits that if they are met then as Your Honor suggesting this question that Barenblatt, Braden and Wilkinson establish that the Committee can compel a witness to answer questions which are pertinent.

Chief Justice Earl Warren: Regardless of any other equities of any kind?

Mr. Bruce J. Terris: Your Honor, first of all I think those three considerations have the basic equities.

I don't know of –- of other equities that should be weighed and – and second of all, I think the –- the basic --

Chief Justice Earl Warren: Well, let's take –- let's take a question of this kind.

In -- I forgot in whether it was Wilkinson or Braden and we found that a Committee had taken one witness.

I think he was an employee of the Customs Department, all around the country to about entertain different places and they had him testify to the very same thing concerning the same bags of male and what was in -- what was in those bags, particular bags of a male.

Now, suppose we had a situation with that kind with – with this defendant Mr. (Inaudible) --

Mr. Bruce J. Terris: Yellin.

Chief Justice Earl Warren: -- Yellin.

Mr. Bruce J. Terris: I would think that would be pillorying the witness.

Chief Justice Earl Warren: I beg your pardon.

Mr. Bruce J. Terris: I think that would be pillorying the witness.

Chief Justice Earl Warren: You do?

Mr. Bruce J. Terris: Now, the Barenblatt case doesn't go –- go into detail what pillorying means.

But if it was just that, I reserve it.

I think it's a different question if there's a substantial length of time between the two so the Committee could have reason to believe that the witness would testify at another hearing.

But if it's perfectly clear and they call him once he refuses to answer, I don't think that he can have a legislative purpose to as you say, just drag him across the country and ask him precisely the same questions again and again over a short period of time.

Chief Justice Earl Warren: Would you say a long period of time?

Mr. Bruce J. Terris: Well if -- if there was -- if the reason to believe that he had additional information or he might change his mind, yes, I think yes.

There might be a very -- very significant difference.

The reason I say that is --

Chief Justice Earl Warren: You mean if he claimed the privilege once and they gave him a little time that they could call him again on the theory that he might have changed his mind and then that -- on that basis --

Mr. Bruce J. Terris: Well --

Chief Justice Earl Warren: -- they could take him all over the country?

Mr. Bruce J. Terris: Well, the privilege Your Honor is the Fifth Amendment, none of these cases are --

Chief Justice Earl Warren: I know that is --

Mr. Bruce J. Terris: -- diverse.

Chief Justice Earl Warren: -- that isn't here.

Mr. Bruce J. Terris: No, it's the first.

Chief Justice Earl Warren: But it's --

Mr. Bruce J. Terris: No.

Chief Justice Earl Warren: It's certainly is pertinent to the discussion here.

Mr. Bruce J. Terris: Well, I suppose if he invoked the Fifth Amendment, there have been no prosecutions for a number of years on any witnesses who've invoked the Fifth Amendment, now, what -- so that I assume that he wouldn't be prosecuted.

Now, it would be a very improper thing I would think for the Committee to take a witness across the country and do this although I know of no such cases on unwilling witnesses.

But if they did it, I don't know what the judicial remedy would be.

I think it would be improper in my file -- his First Amendment rights but I can see no way that he would be prosecuted.

Chief Justice Earl Warren: I assume that the -- that the Government did have to show the importance of the investigation it was conducting.

And all I'm asking --

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: Is -- is there any way that -- that a witness can offer any testimony in order to counter balance that kind of testimony?

Mr. Bruce J. Terris: Well, Your Honor, as I say, he -- if he can show that they just picked him up off the street or they pilloried him or that the questions were not -- were not relevant then, yes, he can introduce such argument or evidence.

Much of that evidence would come from the transcript of the hearings itself, maybe all of them would.

But these it seems to me are the basic considerations and petitioners nor as far as I know anyone else has ever suggested what additional considerations should be weighed.

And this Court held that, given all this set of factors -- set of factors in Barenblatt, Braden and Wilkinson which are almost the same factors here except as I've indicated.

I think the Government own interest here is even stronger that given the set of factors that the First Amendment isn't violated.

Justice Hugo L. Black: May I ask you question (Inaudible)?

As I understand it, you're saying that if there the Committee has some information that a man is a Communist (Inaudible) and they do not, whatever you mean by pillorying than then the fact that it's in the field of communism, leave nothing to be balanced so far their rights to interrogated their concern and they can continue to interrogate them in connection with communism as distinct from something like N.A.A.C.P or somewhat organization.

Mr. Bruce J. Terris: I think that's essentially right Your Honor because I think all of it that -- that is to say is that when the facts are essentially the same, the balance always comes out the same way.

Justice Hugo L. Black: Well now, may I ask you this and I -- I maybe wrong but as I understand the rumor about that thing, it exists in order to escape what is said to be a much (Inaudible) that is the doctrine of absolutism.

Why is that matter an absolutely as proved under your definition?

Mr. Bruce J. Terris: Well, I don't think that what I've suggested is that -- that there isn't a genuine balancing in each case.

All that that I suggest --

Justice Hugo L. Black: Balancing of what?

Mr. Bruce J. Terris: The Governmental interest versus --

Justice Hugo L. Black: If he's a Communist -- if he's a Communist or they think he's a Communist they want to ask him question, what is that left about?

Mr. Bruce J. Terris: Well -- to repeat, what they are balancing is the governmental interest versus the individual.

Now, the Governmental interest --

Justice Hugo L. Black: But it isn't all settled finally, completely once and for all, what if he is a Communist so they have reason to believe you.

You summon a man without bringing a man under dragnet and they do not pillory him or whatever that means?

Isn't it all settled?

Haven't they got a right to ask him anything they want to although they might not have a right to ask the members of some of the organizations?

Mr. Bruce J. Terris: Well, Your Honor, it is settled when the facts are substantially the same but I --

Justice Hugo L. Black: Those facts, just those fact, why is that not, the doctrine there absolute his position with reference to that question in the First Amendment?

Mr. Bruce J. Terris: Well, Your Honor because I don't know of any other considerations which are proper in this Court is held.

They are no additional considerations.

Justice Hugo L. Black: I understand your view and I think -- I think you're doing, if I may say so making a fair presentation view points.

But all I'm asking is, if that's true why is not that an absolute lists of view that the First Amendment does not apply when the balancing doctrines seems to rest on the idea that there must be no absoluteness protection of the First Amendment?

Mr. Bruce J. Terris: Well, without getting into what the meaning of absolute is this --

Justice Hugo L. Black: Well, I don't know either.

Mr. Bruce J. Terris: The balancing process which takes place under Barenblatt seems to me to be an actual -- and real balance.

It is not es -- it does not establish a rule for all cases regardless.

What it does do is say that when the balance is essentially the same, when the factors are the same as in Barenblatt, then the result will be the same.

Justice Hugo L. Black: Well, then why if that's true, is all I'm asking?

That's true if a witness is called up the reason to believe he's a Communist, is asked the question -- they asked where you say in the ninth, 13 come now, not repeated time after time, say 100 times same question, just two or three times.

And he question is -- the question is communism rather than whether he is N.A.A.C.P member, member of some other organization.

Is there anything left to balance or is not true at that time, the Committee is the investigating Committee, that has a right to ask him whatever it would be --

Mr. Bruce J. Terris: Your Honor --

Justice Hugo L. Black: -- on that subject.

Mr. Bruce J. Terris: -- is there anything left to balance, that is what you balance.

Justice Hugo L. Black: But if there's anything left but what should --

Mr. Bruce J. Terris: Well --

Justice Hugo L. Black: -- be left?

Mr. Bruce J. Terris: You'll balance the -- you balance the individual's interest in silence which includes whether he was pillorying, whether the questions were relevant and whether he was brought before the Committee as the result of a dragnet procedure.

You balanced that against the governmental interest and protecting against subversion.

Now, the result all -- and the same facts is always the same.

I agree it should be the same.

Justice Hugo L. Black: Suppose, for instance, he was on the indictment and he did not plead the First Amendment, I mean the Fifth Amendment.

He's more to plead there.

But you kept telling him that he didn't want to testify because there was indictment pending against to somewhere.

And that whole question resided around the indictment, would that be admissible on the balancing process?

Mr. Bruce J. Terris: We -- well, Your Honor I'm -- I'm assuming here that the Committee head of the -- head of the legislative purpose which it stated, finding out about Communist activities in some particular area.

Now, this Court is held that you don't look into the -- to the motives, the -- the beliefs of the Committee.

I'd -- I assume therefore under Watkins, Barenblatt, Braden and Wilkinson, all four of the cases that -- that the fact they might have had an improper motive would not make it -- the inquiry invalid under the --

Justice Hugo L. Black: I'm not --

Mr. Bruce J. Terris: First Amendment.

Justice Hugo L. Black: -- referring to motive.

I'm referring whether there's anything else that kind of bring up something else that might entitle the man to say, “When you go to balance this, the Government just don't let me alone on this particular question because it is an interest and not -- the Government sender is not sufficient to go that far with reference of this question even in the field of Communist.

Mr. Bruce J. Terris: Well, Your Honor I -- I think that that would not make a difference that he was under indictment.

However, that was not a question which is before the Court in any of the cases perhaps that would be an additional factor that would have to be balanced.

It's certainly not before the Court in any of the cases, which are now pending in this Court.

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Pardon me?

Justice John M. Harlan: Do you have other case here?

Mr. Bruce J. Terris: Yes, but I don't -- I don't believe they involved however to the First Amendment.

Turning now to petitioner Yellin's contentions under Rule IV of the Committee's own rules that the Committee violated this rule and therefore, he could not properly be convicted for refusing the answer of the questions.

He claims that he had the right to appear in executive session rather than in a public hearing under Rule IV (a).

Now, Rule IV (a) of the Committee's rules which is at beginning of the petitioner's brief and is also quoted in the Government's brief at page 37, states that if the Committee and, “Believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation or the reputation of other individuals.

The Committee show interrogates such witness in an executive session.

We submit that it is clear that Rule IV does not convey any rights or at least no legal rights which are rever -- reviewable in a court on a witness for the rule makes the determination whether a witness shall appear in an executive session, depend on the belief of the Committee, not on any objective facts.

In addition, Rule IV (a) does not convey out of witness the right and again -- or certainly not any legal right reviewable on the courts that have the Committee make a determination whether he should appear at an executive session or at public hearing.

House rule 11 (g) makes Committee hearings normally public, Rule IV of the Committee's rules merely provides for an exception when the Committee has a certain belief, but even if the Committee's rule, Rule IV (a) did give witnesses a legal right which was reviewable on the courts clearly a congressional committee has broad discretion to determine whether a witness should be heard in executive session or the public hearing.

Justice Potter Stewart: Before exercising the discretion, do you think the petitioner was entitled to have the Chairman of the Committee at least read his telegram and know what was in it?

Mr. Bruce J. Terris: Well one of the -- well --

Justice Potter Stewart: His counsel's telegram.

Mr. Bruce J. Terris: What the major difficulty with that Your Honor, even assuming that the answer to that is yes, he has that right.

The telegram was not sent until over into approximate two weeks after the -- after the witness was subpoenaed.

It arrived and I think also was sent the same day on February 6th.

The hearing was to take place on February 10th.

The Chairman and the -- and the entire subcommittee had left Washington for Gary.

They did not see the telegram.

Now, mistake was made at that point.

The staff director of the Committee answered the telegram, he had no authority to do so, but he answered it saying that the request was denied.

Now, in this situation, we don't think the Committee was anymore chargeable with fault than the witness was.

In addition --

Chief Justice Earl Warren: But you argue another case Mr. Terris at where the -- where the rules the Committee say that the -- that the Committee itself may issue subpoenas that these very people such as one he sent the telegrams to have the power to --

Mr. Bruce J. Terris: No.

No Your Honor.

Chief Justice Earl Warren: -- to issue --

Mr. Bruce J. Terris: I don't believe that so I think that those subpoenas had to be signed by the Chairman of the Committee.

Chief Justice Earl Warren: Well, I thought -- didn't we have a case recently there were (Voice Overlap) --

Mr. Bruce J. Terris: The case was before the Court -- I think the fact is that the Chairman had -- no I think the Chairman -- or at least he had to authorize them and it was perfectly clear in that case the -- the Shelton case is the case you're thinking of Your Honor and -- and the Chairman did authorize the subpoena in that case.

Chief Justice Earl Warren: Well, I thought --

Mr. Bruce J. Terris: Here, the chairman did not authorize rejecting --

Chief Justice Earl Warren: Shelton, was that the New York Times case?

Mr. Bruce J. Terris: That's right.

Yes, Your Honor.

Chief Justice Earl Warren: Well he -- he has changed it didn't he?

Mr. Bruce J. Terris: No, no.

Chief Justice Earl Warren: He stated --

Mr. Bruce J. Terris: No.

Chief Justice Earl Warren: -- when he got there.

I thought he got to the New York -- New York Times and asked --

Mr. Bruce J. Terris: I don't want to reargue -- reargue (Voice Overlap) --

Chief Justice Earl Warren: No, no.

No, no, but I mean the --

Mr. Bruce J. Terris: Yes,

Chief Justice Earl Warren: -- other one --

Mr. Bruce J. Terris: -- yes.

He didn't just change it.

Chief Justice Earl Warren: I thought he --

Mr. Bruce J. Terris: No, he called --

Chief Justice Earl Warren: -- got --

Mr. Bruce J. Terris: -- the Committee.

Chief Justice Earl Warren: there and found out that there was no Shelton by that name so he just -- he just gave it to another Shelton.

Mr. Bruce J. Terris: Well, there were few steps left out in between Your Honor.

Chief Justice Earl Warren: Left out, alright.

Mr. Bruce J. Terris: He found out that there wasn't any Shelton there but then he called the Committee, that matter was brought to the attention of the Chairman.

The Chairman said go ahead and -- and served that -- the only Shelton who was on the new side of the Times and that then the subpoena was -- was changed.

So returning to Mr. Justice Stewart's question, we think that Committee was no more chargeable for fault than the witness himself.

In addition uphe --

Justice Potter Stewart: But perhaps not -- perhaps it's not so much a matter of fault, it's just a matter of a -- whether or not, the petitioner was entitled to have the many exercise -- his discretion that have been informed way rather than uninformed.

Mr. Bruce J. Terris: That's right.

As Your Honor is suggesting, they did exercise their discretion and at least in an uninformed way by -- because the Chairman testified that they had determined not to hear the witness in --

Justice William J. Brennan: Did you just say, they exercised their discretion in an uninformed way?

Mr. Bruce J. Terris: Well I -- but I say uninformed that they were uninformed as to the request.

Justice William J. Brennan: Which is to say then they did not exercise their --

Mr. Bruce J. Terris: No, no.

Justice William J. Brennan: -- discretion on the request.

Mr. Bruce J. Terris: On the request, they did not.

They exercised their discretion not to hear the witness in executive session.

Now, let me point out when I say was un -- they were uninformed of the telegram.

The telegram contains no information which would justify holding the -- hearing the witness in executive sessions.

Justice Potter Stewart: Simply a request --

Mr. Bruce J. Terris: It's just a --

Justice Potter Stewart: -- it's just that, wasn't it?

Mr. Bruce J. Terris: -- request and it does not indicate anything which would come under Rule IV.

Justice Potter Stewart: No factual basis for the re --

Mr. Bruce J. Terris: That's right.

Justice Potter Stewart: -- in the telegram itself.

Mr. Bruce J. Terris: That's right.

There's nothing to indicate the Rule IV applies because the telegram merely says that he'd like not to appear at a public hearing because -- because of the publicity which of course -- which the course is obvious.

Now, Rule IV requires in order to have a witness appear in an executive session either that his testimony will endanger national security or that it will unjustly injure his reputation.

Justice William J. Brennan: Well, might that not -- might not be involved in the suggestion that the right and executive session would void publicity?

Mr. Bruce J. Terris: Well, that might be involved but all -- what I was addressing my --

Justice William J. Brennan: And wouldn't the reasonable --

Mr. Bruce J. Terris: Interpretation of the telegram?

Justice William J. Brennan: The interpretation that would be that?

Mr. Bruce J. Terris: Just publicity -- publi -- the thing is Rule IV doesn't say that mere publicity isn't up.

It has to be unjust injury to his reputation.

And in fact, the Committee soon, it could reasonably believe that there would be no unjust injury to his reputation.

They already had heard sworn testimony in public session that -- that petitioner Yellin was a member of the Communist Party.

Justice William J. Brennan: I mean --

Mr. Bruce J. Terris: And it --

Justice William J. Brennan: -- that -- this all supposes.

This went through the Committee's mind and you've already told us they didn't even know --

Mr. Bruce J. Terris: Well --

Justice William J. Brennan: -- the requirements.

Mr. Bruce J. Terris: There is testimony in the record that the Committee does not consider it unjust injury to a witness' reputation, to have him identified as a Communist.

Justice William J. Brennan: Certainly, you can't say that's the reason he was denied an executive session here by the Committee, can you?

Mr. Bruce J. Terris: Well, the Committee denied its appearance in an executive session.

Now, it's hard to believe that it didn't know that he would be identified, that there would be a suggestion after session that he was -- that he was a Communist.

Now, that is certainly not a very -- a very subtle thing for the Committee to have -- to have thought about.

And apparently, they decided and exercise their discretion.

Chief Justice Earl Warren: Well, isn't it?

Justice William J. Brennan: What is this decision?

Mr. Bruce J. Terris: This decision was prior to the hearing.

Justice William J. Brennan: Why didn't --

Chief Justice Earl Warren: Isn't this reasonable --

Mr. Bruce J. Terris: -- by the Committee.

Chief Justice Earl Warren: -- to suppose that they didn't -- isn't reasonable to suppose they didn't consider that at all because I understood Mr. Rabinowitz, Congressman Walter, the Chairman of the Committee who -- who testified at the trial said he had never seen the telegrams, never heard of them until that day in court.

Mr. Bruce J. Terris: Your Honor, I've -- I had not mean to suggest that when the Committee denied the appearance of petitioner in executive session that they had its request in front of them -- his request in front of them.

They did not -- the Committee did not have this request in front of them.

What I'm saying is that when they denied -- when they'd decided to have him appear in public session, which is the normal practice under the -- the rules of the House of Representatives.

That when they decided that, they could hardly have failed to know that there was going to be a possibility that there would be -- at the hearing that he would -- there'll be suggestion he was a Communist.

After all, that was the basis for calling him.

Chief Justice Earl Warren: I suppose Mr. Terris under those circumstances, the question of a -- of an executive session for the purpose of protecting a witness would never come.

Mr. Bruce J. Terris: No that --

Chief Justice Earl Warren: Would never come up unless -- unless there's some -- was some request such as was made here.

Mr. Bruce J. Terris: No.

Apparently, it does come up because in this very case without knowing of the request, the Committee decided not to have him appear in an executive session.

Chief Justice Earl Warren: Is their affirmative evidence --

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: -- to the effect they decided not to have it --

Mr. Bruce J. Terris: Yes.

Chief Justice Earl Warren: -- or if they just subpoenaed him to testify in a public session?

Mr. Bruce J. Terris: There is affirmative evidence in the record from the Chairman of the Committee that they decided not to hear the witness at an executive session.

Justice Potter Stewart: Where does that appear in the record --

Mr. Bruce J. Terris: I think it's -- in page up here.

It's at the top of the page, three -- page 70 of the record, it's the third line.

Well, the Committee already passed in the question of whether or not we would hear Mr. Yellin at a session and -- and that would -- and that was discussing at an executive session if you'll notice the question of --

Justice Hugo L. Black: And as I recall, and my recollection may be wrong, one -- one statement was made that the Chairman of Committee said that if he had known about it, it might have been different here.

Mr. Bruce J. Terris: It might have been different, yes.

Justice Hugo L. Black: Is that what he said?

Mr. Bruce J. Terris: Yes.

He did say.

That's on the same page Your Honor.

Justice Hugo L. Black: On the same page?

Mr. Bruce J. Terris: The situ --

Justice Hugo L. Black: What page is that?

Mr. Bruce J. Terris: But, let -- let me say, however, that the petitioner's contention is a -- certainly suggest an incredibly technical reading of the -- of the Committee's rules, all the Committee's rules -- first of all, the Committees, well, don't say that you have a right to have this issue determined by the Committee.

Second of all, they don't say that particular facts exist that the witness is entitled to have -- to be testified in executive session.

It merely says that if they have -- if the Committee has a belief which I assume is the most subjective kind of word one could possibly use that then -- then the witness will be given the opportunity to appear in an executive session.

Chief Justice Earl Warren: Well, what is the Rule IV, isn't a rule to manifest fairness and to give a -- give a witness an opportunity to -- to present his cause in that regard?

Mr. Bruce J. Terris: Yes.

I agree Your Honor.

The reason for the rules is --

Chief Justice Earl Warren: And he didn't have that opportunity here, did he?

Mr. Bruce J. Terris: Well, part of my answer is -- what I said to Mr. Justice Stewart that he had the opportunity and --

Chief Justice Earl Warren: But he didn't suggest --

Mr. Bruce J. Terris: -- partly through his form, partly through the Committee's fault that -- that the two of them didn't get together very well.

Now, aside from that, the fact that he didn't have this opportunity in this very no -- non-mandatory permissive rule to reverse petitioner's conviction on this basis, seems to me a very technical reading of the Committee's rules.

I'd like to suggest to the Court that this is not a proceeding in the -- in the District Courts.

These things aren't done on a very legal basis.

The things tend to be done on a basis of negotiation and -- and discussion.

To apply the kind of rules that one might apply and they did in the District Court, seems to -- seem to me to -- to be a very serious mistake with the coordinate branch of -- of the Government.

Chief Justice Earl Warren: Well, under your -- under your interpretation so far as protection of a -- of a witness is concerned, this rule means nothing.

Mr. Bruce J. Terris: You mean legal rights protected in the Court?

Chief Justice Earl Warren: Any protection.

It --

Mr. Bruce J. Terris: Oh I think it has --

Chief Justice Earl Warren: -- means nothing because --

Mr. Bruce J. Terris: -- no, I think it has -- it has considerable protection to tell them --

Chief Justice Earl Warren: What -- what is -- what is that protection?

Mr. Bruce J. Terris: It tells the witness that if he presents evidence to a Committee which fall into any of the three categories and the Committee believes that they will hear him in executive session.

In fact, they did hear -- they do hear people in executive session.

Chief Justice Earl Warren: Didn't he offer to do that and -- and did --

Mr. Bruce J. Terris: No, there's no --

Chief Justice Earl Warren: -- summarily did not.

Mr. Bruce J. Terris: There's no indication that he offered to do it.

His telegram merely says that he'd be exposed to publicity.

Now, I suggest that the Committee understood that.

There was no possible way you will hear in public session in which are not exposed to publicity.

So he did not offer to pres -- to present evidence under any of these three considerations.

Chief Justice Earl Warren: How many admirations would a man have or wanted in -- wanting an executive hearing other than to avoid the publicity of a -- of arbitrary?

Mr. Bruce J. Terris: No, one of the -- the reasons that he has to give is that it was unjust injury to his reputation or the injury of others, unjust, not injury to his reputation.

It is not enough that he would be identified as a Communist.

If he is a Communist or the Committee reasonably believes he's a Communist, the Committee believes and it seems to me this is a fair interpretation of its -- of its rules and this in the record that is not unjust injury to his reputation.

It's injury but -- but the Committee believes that -- that this is just.

And in fact, he'd already been identified, as I have said in public session, as a member of the Communist Party, the very same public session to which Mr. Barenblatt was identified.

Justice Hugo L. Black: Well, if that's the fact that they believe solely he's a Communist, he has no right to be heard as in executive session.

Why isn't that simply exposing him in order to expose him?

Mr. Bruce J. Terris: Because the Committee hopes that he will testify and I assume that one of the reasons that it hopes to testify is that there is some additional pressure to testify from appearing at a public session.

I don't know whether it's a matter of psychology, this -- this is true but apparently, that is one -- one of the beliefs for the Committee.

They don't want to put a premium, in other words, for witnesses not to talk and that would be the premium.

Justice Hugo L. Black: Certainly, it does indicate, it doesn't matter.

They want something beside the information.

They could get --

Mr. Bruce J. Terris: I don't think it does indicate that Your Honor.

Justice Hugo L. Black: -- the information in executive session, doesn't it?

Mr. Bruce J. Terris: Pardon me?

Justice Hugo L. Black: They could get the information in executive session.

Mr. Bruce J. Terris: Well, they could -- you mean they could fail to get the information.

He would say -- he would --

Justice Hugo L. Black: He would be for some reason that he'd love to testify, avoid the public at the executive session.

Mr. Bruce J. Terris: But they think that the additional pressure --

Justice Hugo L. Black: Is that open to prove or it does have to assume that?

Mr. Bruce J. Terris: Well, I think -- I don't know whether it's true or not.

But then he gets a reason of -- reasonable assumption that the theory is, I suppose that there is some pressure not to invoke constitutional privileges when asked questions about communism, maybe the very same pressure that -- that is invoked --

Justice Hugo L. Black: But they weren't trying to get him not to raise constitutional privileges I'm --

Mr. Bruce J. Terris: They --

Justice Hugo L. Black: -- sure.

Mr. Bruce J. Terris: -- yes, of course they were.

Justice Hugo L. Black: They were?

Mr. Bruce J. Terris: They want to get -- getting him to -- to testify to -- you don't have -- after all the first person doesn't -- isn't required to raise his First Amendment rights, of course --

Justice Hugo L. Black: I know, but you mean that -- you mean that the Committee, Congress, putting pressure on people, trying to keep them from raising a constitutional privilege?

Mr. Bruce J. Terris: What do you mean by pressure, I think to -- that the --

Justice John M. Harlan: They're trying to get with your testimony.

Mr. Bruce J. Terris: Right, which is the normal --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: That's right, which is the normal duty that a person has in his country just to give testimony when he's asked for a properly constituted authority.

Now the --

Justice Hugo L. Black: But he also has, doesn't he a privilege that the Constitution gives it to him to exercise that privilege without any pressure by Government to get him to break to the -- not to exercise a privilege?

Mr. Bruce J. Terris: We aren't at the --

Justice Hugo L. Black: And he had that?

Mr. Bruce J. Terris: I would agree but it seems to me the -- the minimal pressure of saying, "You're going to have to exercise your privilege in public."

Let me take the example of a court.

Would it be wrong for a court to make a witness that they were -- that they wanted to testify, appear before the court and invoke his Fifth Amendment right without -- when he told them in private, "I'm going to invoke my Fifth Amendment Right," would the have to say, "Whether we won't call you."

Well this would put an actual bonus on -- on people to not -- to just tell people, "I'm going to invoke my First or my Fifth Amendment right or some other right."

The Committee doesn't want to -- to give people this encouragement.

He wants to say, "Well, you can invoke it but you're going to have to invoke it in public.”

And it doesn't seem to me that that -- that's first of all, unconstitutional, or second of all, even unfair.

Justice Hugo L. Black: What's that -- it depends on the same extent on what weight and appraisal you put on the value of a constitutional privilege, doesn't it?

Or rather --

Mr. Bruce J. Terris: Well Your Honor --

Justice Hugo L. Black: -- the Court would do that.

Mr. Bruce J. Terris: I don't think so --

Justice Hugo L. Black: Or rather the Court would do that?

Mr. Bruce J. Terris: I don't think so Your Honor.

I think that this is -- this has been a -- this is traditional in this country, the witness is called.

He invokes his rights and if he's right is -- and if it's properly invoked, that's the end of it.

But I don't think it's enough where witness to say, "Well, I'm going to invoke my -- my constitutional right so just don't bother me anymore."

Justice Hugo L. Black: I understand what you say now is that if he appeared and wants to tell to the Committee, he is invoking it -- that intake and they're not supposed to ask him a 100 questions thereafter on the same line.

Mr. Bruce J. Terris: Well, as a matter of fact he doesn't end it.

That's never has and I don't think it should.

Well, I forgot in which of the witnesses.

I think it's -- which of the petitioners, I think it's Mr. Silver.

Yes, it was Mr. Silver.

He told one of the investigators when he -- when he was interviewed by the investigator that he was going to invoke his Fifth Amendment right.

The Committee called him anyway.

He didn't invoke his Fifth Amendment right.

Now, he did invoke the First Amendment but he testified to a considerable extent about his own activities.

He didn't go into detail but he said he was a Communist.

Now, this is the kind of example.

It doesn't to me this is wrong, assuming not unconstitutionally wrong and it is not -- and I don't think unfair.

Now in conclu --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Oh yes.

Oh yes.

All three of the petitioners had counsel and they actively participated in the hearings although at times, they were cut short by their ordinary rule of the Committee that they aren't supposed to conduct the debate directly with the Committee, although such debates did frequently take place for a considerable period of time.

In conclusion on this point, I would like to emphasize the contrary to what Mr. Rabinowitz said.

Petitioner was not convicted because of the confusion over the executive session.

Rule IV (a) does not require that the Committee allow a witness to appear in executive session and certainly not in the circumstances of this case.

And even if the Committee had allowed petitioner to appear in executive session, there's absolutely no indication that he would have had answered the questions which the Committee asked him.

And of course if he refused on the same grounds which be here in the same posture except for the fact that this one argument under Rule IV would -- would not be in the case, so that there is nothing to the argument that the only reason we're here is because of -- of this confusion over the sending of the telegram, they're sending of it to the wrong place at the wrong time or the Committee should have listened more carefully at the hearing or any of the -- any of the confusions which admittedly did take place.

Chief Justice Earl Warren: Does the Committee ever have witnesses who will testify in private but who won't testify publicly?

Mr. Bruce J. Terris: I don't know Your Honor.

I think maybe the reason I don't know is that those witnesses probably don't testify him.

Chief Justice Earl Warren: I beg pardon?

Mr. Bruce J. Terris: Maybe those witnesses don't testify publicly, maybe they tell everything they have and the Committee is satisfied.

I don't know what --

Chief Justice Earl Warren: But they do take the private questions (Voice Overlap) --

Mr. Bruce J. Terris: Oh yes, oh yes.

And they interviewed for example Mr. Silver and I -- and I gather -- I think this is only an inference from the record that he didn't -- they didn't talk to him.

Chief Justice Earl Warren: Oh yes.

Mr. Bruce J. Terris: So they -- they often to do but they didn't do in this case.

They didn't interview petitioner Yellin in this case and to be frank with Your Honor and -- and then the first reason they didn't was that he was in Denver and then the interviews were being conducted in Gary.

Now, there's also some confusion on the record about whether they would have interviewed him if he had been in Gary.

There's some talk that they wouldn't have anyway because they didn't think he would talk.

But in any event the actual reason they didn't was because he was in a different city.

Petitioner's last document goes only to -- to the questions involved in Counts 2 and 4.

He claims that they were too vague to support his indictment and therefore too vague to support his conviction.

Now, of course the first and conclusive answer is this goes only two counts even if he's right on it, the other two counts are valid and that -- since there was an concurrent sentence, the conviction would have to be sustained.

The second answer is that he did not raise this issue in his petition for certiorari and therefore, this would be for the Court.

And the third answer is that his contention on his merits without substance, as far as I know no -- no indictment under the contempt of Congress statute has ever explained the meaning if the questions.

The only two questions which are -- there is any doubt -- the only two words that there's any doubt about it, the words colonization and colonizer and it's very difficult to understand how petitioner could have been confused about them.

Admittedly, they've -- they are some -- there are words of art that petitioner admits that he was present during the lengthy testimony of the previous witness in which he went into detail what these questions and what these words meant.

And in fact, the previous witness specifically defined the word colonize and the petitioner was in any doubt at his trial and/or petitioner's counsel, all he would have had to do is read the transcript of the hearings and he would -- have certain be fully satisfied.

However, petitioner argues that this isn't enough that has to be in the indictment.

It isn't enough --

Chief Justice Earl Warren: Just what -- just what does colonization mean?

I don't know is infiltration or (Voice Overlap) --

Mr. Bruce J. Terris: Well, that's the start but apparently --

Chief Justice Earl Warren: -- what does it mean?

Mr. Bruce J. Terris: Infiltration is the start of the definition apparently, the more -- the more full definition by those in the Communist Part and in the Committee who seemed to understand each other is that -- that the party had a program which began in 1948 of what it called colonization.

What they did is they sent college graduates or at least people in college who had a considerable amount of training in the basic industries, steel, transportation and textile mills, automobiles and the like.

These people concealed the fact that they had excellent educations from the workers in order so that they would attain a position of importance in the labor movement and would be able to influence them which of course, they would have trouble doing if they've told that they were members -- they had good educations.

In fact, they might not even get a job because companies of course would be suspicious that people who want to become permanently not just for summer job, steel workers on -- on the regular line right at the -- right at the furnace.

So they can -- now, this is exactly what happened to petitioner Yellin and that's what the Committee had evidence of this.

His application for employment in 1949 in the Carnegie Illinois Steel Company in Gary, did not disclose that he had been to New York -- City College of New York and the University of Michigan and had -- and had virtually an AA average and so that -- that's precisely the subject that the Committee was interested in.

Thank you Your Honor.

Chief Justice Earl Warren: Mr. Rabinowitz.

Rebuttal of Victor Rabinowitz

Mr. Victor Rabinowitz: I would like first to go into this executive session thing because I think the facts can be cleared up.

Mr. Walter testified that at some time, presumably at the time the subpoenas were issued, although that is not altogether clear.

The Committee had decided that it would call Mr. Yellin in executive session, I mean in public session.

And the reason he said was that this man was a Communist.

He had deceived his employer and that they thought they had -- they had a lot of information about him.

Now of course, the rule does not list these reasons as reasons for an executive session.

The rule says that an executive session shall be called when it will result in unjust publicity so that apparently in making the original determination to call Mr. Yellin and 15 other people I suppose in public rather than an executive session, whatever the reasons where they had nothing to do with the rule.

The standard used by the Committee or by Mr. Walter in making this determination was tended that I'm not included in the rule at all.

Then, on behalf of Mr. Yellin, I sent a telegram and it was as clear as anybody ever is in a telegram.

I asked for an executive session and I said that the reason was that -- well, I'll quote, “Testimony needed for a legislative --

Chief Justice Earl Warren: Well, what page is it?

Mr. Victor Rabinowitz: Well, it's in page -- it's in the record at page 37 but it's -- I mean at page 287 (n) but it's almost illegible there.

It's in my record, in my brief rather at page 5, the -- the copy in the record is -- is very bad reproduction.

Testimony needed for legislative purpose can be secured in executive session without exposing witnesses to publicity.

Now, this raised as sharply as I could.

I thought the standard that was set forth in the rule which says that a -- an executive session will be held when the Committee feels that the interrogation of a witness might unjustly injure his reputation so that in the telegram, the rule was not referred to by number but it seemed clear that the purpose of the telegram was to call to the attention of the Committee, the rule.

Justice Byron R. White: Could you say that to?

Mr. Victor Rabinowitz: I said that to counsel for the Committee.

I normally in dealing with -- opposing parties deal with counsel.

Justice Byron R. White: Do you raise the question when the Committee itself object to (Voice Overlap) --

Mr. Victor Rabinowitz: I tried to raise it at the hearing but I was told to sit down in view a fashion and I sat down because I have found that the better practice when the Chairman of the Committee tells me to sit down.

I do that.

Justice Byron R. White: I mean do you ask the Committee in so many words that he would be requesting or demanding or otherwise asking for --

Mr. Victor Rabinowitz: Well, what -- what I did was say I would like to have these telegrams in the record.

Oh that was the formulation that -- that I --

Justice Byron R. White: What telegram was that?

Mr. Victor Rabinowitz: This telegram that I just read together with the answer denying.

Justice Byron R. White: Did you identify the telegram so --

Mr. Victor Rabinowitz: Oh yes.

Justice Byron R. White: -- he would understand.

Mr. Victor Rabinowitz: I said there has been an exchange of telegrams and I -- I would like to have them included in the record of Congressman Walter in effect he said sit down.

Justice Byron R. White: The telegram is on what?

Did you say what it was?

They did at least in Committees I suppose.

They're unlikely probably.

Mr. Victor Rabinowitz: Well, what I said was Mr. Counsel -- addressing myself again to Mr. Tavenner.

“Mr. Counsel, I wonder whether it would be possible to read it to the record the exchange of telegrams between myself and the Committee in connection with the witness' testimony.

I would like to have it appear in the record.”

And that Congressman Walter without reading the telegram and it doesn't appear on the record but let me state with a show of impatience said, “Go ahead.”

And I said, “I pressed again I sent the telegrams.

I want them to appear.

I want to -- I want it to appear at the exchange of telegrams occurred.”

And he said, "You know the privileges given by this Committee have appeared it before often -- before it often enough.

You know it as well as anybody, go ahead Mr. Tavenner," and I took that as my cue to sit down and I did it.

Justice Hugo L. Black: Well, did you later discuss it within on cross-examination of it, I mean at the --

Mr. Victor Rabinowitz: At the trial?

Justice Hugo L. Black: Yes.

Mr. Victor Rabinowitz: Oh at the trial, he said he didn't know what the telegrams were.

He hadn't seen them until the day of the trial.

He said he thought it was an application for an adjournment without grounds and that was why he told me to sit down.

Justice Hugo L. Black: He didn't tell you what's they were, is that it?

Mr. Victor Rabinowitz: At the trial -- at the hearing, I did not say this is a request for executive session.

I had assumed that since I had set the telegrams to Mr. Tavenner, Mr. Tavenner was standing in front me and I had received the response from the Staff Director of the Committee saying that the request was denied that this was a communication between me and the Committee and the Committee knew what was in the telegram so I sent them.

Well, I got an answer.

I confess that I did not at that time think about the question of whether within the internal workings of the Committee, Mr. Arens, who conduct about half of these hearings, have authority to deny this.

Justice Hugo L. Black: Where's this telegram hide it and tight and put in the record or put into record?

Mr. Victor Rabinowitz: No.

They're not in the record at all.Not in the record of the hearing.

They are in the record of trial --

Justice Hugo L. Black: Of course in the hearing.

Mr. Victor Rabinowitz: No sir.

They don't --

Justice Hugo L. Black: By whom were they turned over?

To whom were they turned over?

Mr. Victor Rabinowitz: Well, they weren't turned over to anybody.

I sent one and of course kept an office copy for myself.

Justice Hugo L. Black: I mean when you -- when this colloquy came up, did you hand them to anybody or did they refuse to take it?

Mr. Victor Rabinowitz: Well all I said was, I wonder whether it would be possible to read it to the record of exchange of telegrams.

I had the -- my office copy of the one I sent then I have the original, the one that I received, and I wish to read them into the record so that I could bring to the attention of the Committee the fact that this exchange of telegrams had occurred.

Justice Hugo L. Black: What is the rule to which Mr. Walter called your attention when he said, “You know the rules of the Committee?”

Mr. Victor Rabinowitz: Well, it's not a written rule.

It's just a rule of practice --

Justice Hugo L. Black: What is it?

Mr. Victor Rabinowitz: The rule of practices that counsel shouldn't talk to the Committee but should only talk to his witness.

Anytime counsel attempts to address the Committee at any of these hearings, the general rule is except to stating his name.

The general rule is -- well, it varies -- well, it depends on whether Mr. Walter is conducting a hearing in which case the rules are very strict, though Mr. Doyle was conducting a hearings in which case the rules are pretty liberal, Mr. Doyle being less a impatient man.

But generally speaking, the rule is that counsel is not supposed to talk to the Committee.

He is supposed to talk only to his witness, to his client and that of course is a whispered conversation that takes place at the witness table.

Generally speaking, arguments of law and so forth and so on are supposed to be made, objections to the jurisdiction of a Committee at least of the privilege and so forth and so on, are made by the witness.

What frequently happened, I supposed always happens in practice at least it does may have had before the Committee is that counsel reviews this with the Committee, with the witness if the witness is good enough.

He recites what has been told or what he believes ought to be said.

If not, he reads the statement which he and counsel have worked out in advanced and the situation varies in a great deal.

In Mr. Yellin's case, you can tell by reading the transcript, he spoke off the cop.

He wasn't thrown up constantly and he argued with the Committee as to the lack of jurisdiction and so forth.

In -- as we will see in the Silver case, Mr. Silver said, “I want to incorporate by reference everything that the previous witness said because the previous witness had read a long statement.”

And the practice in this respect varies but one thing does not vary.

Counsel can't do anything talking, that's clear.

Now, after these telegrams were read, the witness proceeded to testify.

Now, counsel, one the Government is mistaken in one respect.

He stated not once but three or four times that by the time Mr. Yellin testified there, it was already a testimony before the Committee that he was a Communist.

That's not so.

The first witness who testified was Mr. Lautner who never heard of Mr. Yellin or at least gave no indication that he did.

Mr. Yellin was the second witness.

There were subsequent witnesses who identified Mr. Yellin that having once been a Communist, but this was after Mr. Yellin testified and not before it.

Counsel says both parties were at fault.

I suppose that the witness was at fault because he didn't send the telegram quickly enough, at least that's the only clue that I can think of.

Well, the witness was in Denver, I was in New York, the hearing was in Gary, the Committee was in Washington and it isn't easy to make full connection quickly under those circumstances.

Perhaps it would have been better if I have sent the telegram before I sent the telegram as quickly as I could and under circumstances of distance that were involved here, as soon as I can get authorization from my client to do it since I get --

Justice Potter Stewart: I think the distance has to do with it when you're talking about telegram.

Mr. Victor Rabinowitz: Well, it has to do with the fact that it becomes difficult to confer with the witness except over long distance telephone.

Justice Potter Stewart: Yes then there's such of that.

Mr. Victor Rabinowitz: Could discuss with him the reasons why such a telegram -- why you think such a telegram ought to be sent, whether he would like to appear in executive session first and some of the questions.

And as I say I -- I know that theoretically a long distance telephone conversation is as good as a face-to-face conversation but it rarely is --

Justice Potter Stewart: But were you -- were you -- there was no prospect that you were going to have a face-to-face conversation.

You didn't have one before you sent the telegram, did you?

Mr. Victor Rabinowitz: No, I believe we worked it out in the -- I don't remember frankly how much time allots me to interview the day he was served with the subpoena.

I don't think that appears on the record.

It may have been only a very short time and I -- I frankly don't recall.

(Inaudible) for the sake of -- of argument anyhow, I can see that -- maybe I was at fault here.

Justice Potter Stewart: Injured as -- there are some questions about whether or not you sent it to the right person?

Mr. Victor Rabinowitz: Well I -- I sent it for counsel for the Committee.

I didn't know Mr. Walter was going to preside it this hearing and normally as I said before, I'm an attorney and in dealing with opposing parties, I ideal with attorneys --

Justice Potter Stewart: Was it -- that was Mr. Tavenner?

Mr. Victor Rabinowitz: Tavenner, yes sir.

Justice Potter Stewart: And then there was a --

Mr. Victor Rabinowitz: A response from Mr. Arens.

Now, Mr. Arens, title was Staff Director and later had developed and Mr. Walter said, he never had any authority to reject this and this was all the misunderstanding of the kind, and as -- as has been pointed out the -- Mr. Walter said that at one point -- Mr. Walter said, "If you had sent the telegram to me or perhaps we wouldn't be here."

Now one -- one that appearing at page -- record -- record page 69 he said, “I am sure this could not have happened, had you addressed your telegram to me?”

And at record page 70 he said, if he had known of the request for an executive sessions so that the Committee could have given the due consideration, we might have a different situation today.

Now, maybe it was a little bit of the fault of the Committee but I'm willing to excuse both faults.

I'll excuse the fault of the Committee and they'll excuse my fault.

I don't want to send the Committee to jail.

I don't think it ought to be punished for its fault but I don't believe that my client ought to be punished for his fault either.

And if we would at fault, this is a criminal trial and I think that that is a pretty good reason for letting the defendant off.

Justice Potter Stewart: Was it try to convicted of -- either sending a telegram too late or sending it to the wrong person, he was --

Mr. Victor Rabinowitz: No, but this is the --

Justice Potter Stewart: He was tried and convicted of refusing to answer questions directly (Voice Overlap) --

Mr. Victor Rabinowitz: Yes, and the question is whether his rights were violated in connection with this request for an executive session, and this is so far as our present discussion is concerned, the reason for reversal that I am pressing.

Now, I would like to get on to the balancing question and here I am very grateful to counsel for the Government because I have heard here for the first time what I assume is the authoritative government view out of what the balancing rule means.

Express -- I must confess much more clearly than this Court has ever expressed it, and I think it's a clear view.

I think it -- it's easy to apply.

I think it destroys much of the First Amendment and I don't believe that the Court ought to accept it.

As I understand the situation, the Court has decided that for the present according to counsel, the public interest in this kind of investigation is overwhelming.

Now, I don't know for -- how long for the present exists and I don't know when it is that I get an opportunity to show that the present has changed.

Now, the Court decided in Barenblatt on the basis but no evidence in the record at all incidentally.

I assume the Court did it by taking judicial notice of the threat of Communist subversion, that as of that day, the threat of Communist Subversion was so great that the Congress had this -- this overpowering.

I forgot the word that counsel used but it was a very strong one overwriting I think interest in -- in this investigation, overwriting government interest was the word he used.

But when does it change?

When do I get an opportunity to show that this situation is no longer overwriting?

That fact is that we do live in a dynamic world, things do change.

I tried to do it.

I tried to do through Professor Emerson's testimony.

What did he say?

Well, he said he doesn't think there's much threat and he went into reasons.

He said there's very little communism for once in the trade-union movement today.

He said that in the academic world as far as he knows, there's practically no communist influenced.

He said that most communist have been driven out of the Government.

He said that we have no social unrest in the United States to speak off or that the social unrest that does exist which is mostly in the South.

It does not seem to be leaning in the direction of communism that the Negroes have taken other methods of securing redress of their rights and that there appears to be no rebirth or -- or strengthening of communism in the South.

He said he find no significant opposition by way of another political party to the major political party.

He said that in his opinion the strength of the Communist Party was very small as a result of the laws that it did pass what she detailed.

He found that there was very little religious and religious institutions very little Communist strength.

And, the situation we believe has changed.

When do we get a chance to show that the thing has change?

Now, just one word more, on the other side namely the right of the individual, his side of the scale as I understand the Government's position, the only right that the individual has is that the Committee should be nice to him.

No talk about free speech, no talk about the assembly, no talk about free press, no talk about the right to express his views, he just is entitled to be treated as a gentlemen and not pillorying.

Well, I think this is reducing the First Amendment to rather small (Inaudible).

Thank you.

Featured:

Yellin v. United States - Oral Reargument

Tue, 25 Sep 2012 22:34:56 +0000

Case:

Yellin v. United States

Media File:

35_19621206-reargument

Related Transcript:

35_19621206-reargument

Transcript:

Argument of Victor Rabinowitz

Chief Justice Earl Warren: Number 35, Edward Yellin, Petitioner, versus United States.

Mr. Rabinowitz.

Mr. Victor Rabinowitz: May it please the Court.

The petitioner was convicted of a violation of Section 192 of Title 2 for his refusal to answer several questions put to him by a subcommittee of the House Committee on Un-American Activities at a hearing held in Gary, Indiana in February 1958.

The alleged subject under inquiry was Communist infiltration for basic industry.

And it was the tenth investigation that the Committee had held over a period of some four or five years under that Title, to say nothing of course of hundreds of investigations that the Committee has held on related subjects.

He testified between the Watkins and the Barenblatt decisions of this Court.

And in refusing to answer the questions put to him, he expressly relied on the Watkins’ decision on the vagueness of the authorizing resolution upon his rights under the First Amendment and on the lack of the jurisdiction of the Committee over the subject under inquiry.

Like Barenblatt and Braden and Wilkinson and Russell and the other cases that were decided by this Court at the last term, he did not rely on the Fifth Amendment.

He was not indicted or tried until after the Barenblatt case.

At that time he was found guilty and received the maximum sentence of one year.

Prior to his testimony, he had been a steelworker.

At the time of his testimony before the Committee, he was an undergraduate engineering student at Colorado.

Since then he has been a graduate student and a candidate for his doctor’s degree at the University of Illinois.

It doesn’t appear in the record of course but the fact is that in 1961, he received a fellowship from the National Science Foundation which was taken from him when Congressman Scherer made a speech about it on the floor of the House.

And in 1962, he received the fellowship from the National Institutes of Health which was similarly taken from him.

He is however receiving a scholarship from Johns Hopkins University, not out of public but of private funds.

The case was argued at the last term and is now here on reargument.

It differs from the Russell and other cases that were decided by this Court at the last term because this indictment was drawn by the United States Attorney in the Northern District of Indiana.

And he apparently used his own forms for drawing an indictment and did not fall into the error that the court found fatal in the cases decided at the last term.

I shall argue both constitutional and unconstitutional grounds for reversal here.

There are facts in this case that were not present in Barenblatt, Wilkinson and Braden.

And even one of my constitutional arguments may not require a reversal of Barenblatt, Wilkinson and Braden, at least I may have found a crevice in which I can find some shelter.

But if I have, it’s a narrow crevice and I shall ask the Court here to reconsider the Barenblatt, Wilkinson, and Braden cases because I suggest that those cases were bad law.

I must say that the brief on reargument, a new brief on reargument submitted by the Government in this case gives my some comfort in that regard because I think that the Government recognizes that issues such as these are never finally decided.

At page 26 of the Government brief, the Solicitor General says, after discussing Barenblatt, Braden and Wilkinson, under normal circumstances therefore and perhaps in the present instance, it would be enough to show that the case at bar is indistinguishable from the controlling precedence.

We are mindful, however, that the present controversy involves the most delicate and dangerous of the court’s responsibilities.

The Solicitor General then goes on to describe what those delicate and dangerous responsibilities are, I disagree with that.

And I’ll come back to that a little later.

But the Government goes on to say, “For these reasons, we would be derelict in our duty despite the precedence”.

Justice William J. Brennan: Well, that’s not that reason.

Mr. Victor Rabinowitz: I’ll come to the reasons in a few minute -- at the close Your Honor because I think that the reasons are very important.

There is a vital difference of opinion between the Solicitor General and I myself with respect to the reasons.

I have no intent to omit it, I will show you.

“For these reasons, we would be derelict in our duty despite the precedence if we fail to show in some detail the constitutional foundation for the congressional investigation into the subject.”

I too feel that there are delicate and dangerous issues involved here and that this kind of issues can never be left rest as certainly the history of this Court has shown.

Let me state --

Justice Potter Stewart: Mr. Rabinowitz, the -- you filed a new reply brief --

Mr. Victor Rabinowitz: Yes, sir.

Justice Potter Stewart: -- but not a new original brief, is that correct?

Mr. Victor Rabinowitz: No, just a new reply brief.

Justice Potter Stewart: Thank you.

Mr. Victor Rabinowitz: The petitioner was subpoenaed to appear on February 10th, 1958 in Gary.

On February 6th, counsel sent a telegram, addressed to counsel for the Committee reading as follows, “Undersigned represents Edward Yellin and Nicholas Busic.

On their behalf I request executive session in lieu of open session.

Testimony needed for legislative purposes can be secured in executive session without exposing witnesses to publicity”.

The response by -- signed by Mr. Arens, the Staff Director of the Committee read, “Reurtel requesting executive session in lieu of open session for Edward Yellin and Nicholas Busic.

Your request denied”.

The request was made in the first place pursuant to Rule IV-A of the Rules of the Committee on Un-American Activities which reads as follows: “If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing”.

At the hearing, counsel for Yellin attempted to introduce this exchange of telegrams into the record so that the matter could be called to the attention of the Committee and would appear in the record.

Congressman Walter who was presiding refused to permit counsel to address the Committee at all.

At the trial, he said that he never saw the telegram.

He didn’t know what they were.

He didn’t see him at the time of the hearing and as a matter of fact, he hadn’t even seen them until he got on the stand at the trial and when I showed him those telegrams, during the course of this examination, he said, that was the first time he saw them.

Justice Arthur J. Goldberg: He will -- did the witness himself asked the Committee (Inaudible)

Mr. Victor Rabinowitz: No sir.

In the view of Congressman Walter’s express on the witness stand, this was all a big misunderstanding.

He said the telegram should’ve been sent to him and not to the counsel for the Committee.

Moreover, he said, Mr. Arens, who denied the request, had no authority to deny any such request.

Only the Committee had the authority to deny such a request.

He said and I quote, “I am sure this could not have happened had you addressed the telegram to me”.

He further said that he had he known of the request for an executive session, “We might have a different situation today”.

As a matter of fact, Congressman Walter said, that the Committee had concede -- considered calling the petitioner on executive -- petitioner an executive session.

And this appears at page 70 of the record.

And he said, “Well, the Committee had already passed on the question of whether or not we would hear Mr. Yellin at a session”, when the purpose of calling him was discussed.

Then it was decided then that the rule with respect to an executive session was not applicable because the investigator and I might say it was Mr. Collins, a former FBI agent, who developed this entire matter.

And we were willing to accept his story with respect to the proposed testimony.

I gather from this not completely clear answer that Congressman Walter was saying that an executive session was denied because they had a very reliable investigator and they were prepared to take his word for what the witness was going to be called for and an executive session was therefore not necessary.

Now, that of course is not the standard that is required by the rules.

The rules say that an executive session shall be called when in the opinion of the Committee, the interrogation of a witness at a public hearing might endanger national security or unjustly injure his reputation.

The Government points out that the witness has no right to an executive session and I think this is true.

The witness has no right to an executive session.

Justice John M. Harlan: The Rule -- that’s Rule IV --

Mr. Victor Rabinowitz: Rule IV-A, it appears at page 4 of my brief.

Justice John M. Harlan: Rule IV.

Mr. Victor Rabinowitz: The witness has no right to an executive session, but I respectfully submit, he does have a right to have the rules apply.

And that means in this circumstance, that he has the right to have his request considered by the Committee and to have the standard set forth in the rules applied.

And if then the Committee decides that the standard set forth in the rules do not require an executive session, it may very well be that it will deny it.

Here, the Committee was never given an opportunity to pass on the matter and when it did consider the question of executive session, the standard that he applied -- that it applied, bore no relationship at all to the standard that’s set forth -- that is set forth in the rules.

Justice Potter Stewart: Do you know when that rule was promulgated?

Mr. Victor Rabinowitz: No, I don’t sir but I would guess it was probably some ten years ago, at which time there was a great deal of criticism of the Committee for not having any rules, for not permitting counsel to participate and the set of rules was adopted of which this was one.

Justice Potter Stewart: I'd be interested in knowing when the rule was promulgated and how many times, if at all, that Congress has reauthorized the Committee since the promulgation of this rule.

Mr. Victor Rabinowitz: I'll be glad to --

Justice Potter Stewart: And if you can find that out.

Mr. Victor Rabinowitz: -- find that out for you, but I might say that this of course is a rule of the Committee, not a rule of the House.

Justice Byron R. White: I understand --

Mr. Victor Rabinowitz: Yes.

Justice Byron R. White: -- but they knew -- the House knew?

Mr. Victor Rabinowitz: I would presume that the House knew about it.

Justice Byron R. White: Did the -- did they rely on investigator (Inaudible) referred to testify previous to Mr. Yellin?

Mr. Victor Rabinowitz: No, sir.

Justice Byron R. White: His testimony was never placed in the record?

Mr. Victor Rabinowitz: His test -- he did not testify at the Gary hearings.

Now, whether he testified an executive session before the Committee at some other occasion or he testified at some other hearing, I don't know.

He did not testify at Gary, that I am certain of.

The Committee is bound by its rules.

The standard set by the rules must be followed.

This Court has frequently held that this Committee as well as other Government agencies when they adopt rules are bound by them.

And I respectfully submit that this little misunderstanding that Mr. Walker -- Mr. Walter referred to is not sufficient to send the man to jail for a year.

Chief Justice Earl Warren: Mr. Rabinowitz, you may continue --

Mr. Victor Rabinowitz: Alright, sir.

Chief Justice Earl Warren: -- your argument.

Mr. Victor Rabinowitz: Mr. Justice Stewart, through the courtesy of Solicitor General Cox, I am advised that the rule in question was adopted in the summer of 1953 so that it has -- it had been at the time of the hearing in Gary readopted by successive Congresses or by successive Committees I think twice.

That would be in 1954 and 1957.

Justice Potter Stewart: This is stand -- standing Committee of Congress --

Mr. Victor Rabinowitz: This was standing.

Justice Potter Stewart: -- but does it need to be read -- constituted these --

Mr. Victor Rabinowitz: I believe that the House --

Justice Potter Stewart: -- every two years?

Mr. Victor Rabinowitz: I believe that the House does go through what is in most cases a pro forma readoption of the rules reestablishing each Committee each year and that maybe that the Committee (Inaudible) --

Justice Potter Stewart: Or every two years (Voice Overlap) --

Mr. Victor Rabinowitz: Yes, every -- perhaps every Congress.

Justice Potter Stewart: Yes.

Mr. Victor Rabinowitz: That would be every two years.

Justice Hugo L. Black: Unless they have appropriation.

Mr. Victor Rabinowitz: Yes.

There would have to be an appropriation --

Justice Potter Stewart: Every Congress --

Mr. Victor Rabinowitz: Well, every Congress, if not, every year in some cases.

I would like to pass on next to what is a constitutional point but not a First Amendment point, rather a Fifth Amendment and --

Justice Arthur J. Goldberg: Mr. Rabinowitz, before you leave the rule question, would it be in your argument that the witness himself has a right to have his application for an executive session passed upon?

Or would it be sufficient that the Committee in substance consider it on its own motion?

Or on application whether it wouldn't go into executive session with a particular situation?

Mr. Victor Rabinowitz: I should think that the com -- that the witness would have the right to have an application -- to have his application considered by the Committee when he makes an application.

Now, it isn't routine that a witness makes an application but I should think that when a witness makes an application, he's entitled to have it considered and considered on the basis of the standards that are set forth in the rule.

Justice Arthur J. Goldberg: Then I take it from that, that you're argument then would be to -- and I'm not saying it took place in this case, but rather to be a reference to the record if --

Mr. Victor Rabinowitz: Yes, sir.

Justice Arthur J. Goldberg: -- you have to interpret what was said.

But I take it from that that the Committee, on its own motion, majority being present, said, “We have to consider whether we apply our rule or we're not going to apply it.

You would say that would not be sufficient because an element in that decision would be the application?

Mr. Victor Rabinowitz: I'm not sure really.

I -- I'm -- I can't -- I suppose that when an -- a litigant makes an application to a court, the court has to make a ruling on it or ought to make a ruling on it and this of course isn't the court.

But I should think that the Committee ought to consider applications that are made to it.

Now, of course, Congressman Walter said that such a consideration had been given to it.

There was no Committee record or minute or anything else that was introduced to that effect and --

Justice Arthur J. Goldberg: The sole evidence we have on that is the record reference from which you (Voice Overlap) --

Mr. Victor Rabinowitz: Yes sir.

That's the one that I have read.

Justice Hugo L. Black: Will you have them link?

Mr. Victor Rabinowitz: Yes sir.

Justice Hugo L. Black: And you tried link this, the telegram?

Mr. Victor Rabinowitz: Yes sir.

Justice Hugo L. Black: Do they know what the telegram was?

Mr. Victor Rabinowitz: No.

Congressman Walter at times is somewhat irascible and when counsel attempt to speak.

He generally tells them in one formulation or another, sit down or you'll be thrown out.

That precisely what he said to me at the time, I said, “I'd like to introduce these records,” and he said, “You've been here often enough to rule -- to know the rules of this Committee, sit down”.

And since I was there often enough to know, I sat down.

Justice Hugo L. Black: You didn't tell him of the executive session (Inaudible) --

Mr. Victor Rabinowitz: Well, I had them in my hand and I said, “I would like to introduce these, that I'd like to read them into the record”.

Justice Potter Stewart: You called Congressman Walter as your witness at the trial?

Mr. Victor Rabinowitz: At the trial, yes sir.

Justice Potter Stewart: And he was your witness as (Inaudible)

Mr. Victor Rabinowitz: I would like to argue next that the statute under which the petitioner was convicted was unconstitutionally vague in violation of the Fifth Amendment.

And I must admit that this record was inherent.

This question was inherent in the record in Barenblatt, Wilkinson, and Braden, but has to the best of my knowledge never been considered by any majority opinion of this Court.

Justice John M. Harlan: This is the narrow crevice, you say.

Mr. Victor Rabinowitz: This is the narrow crevice.

It was not argued in Barenblatt --

Justice John M. Harlan: You're talking about the statute or the resolution?

Mr. Victor Rabinowitz: I am talking about the statute which for reasons that I will give in a moment, I think must be read together with the resolution.

Justice William J. Brennan: Well, the --

Justice Hugo L. Black: Where is the statute quoted in your brief, to which you referred to?

Mr. Victor Rabinowitz: Page 3.

Justice William J. Brennan: This is the contempt --

Mr. Victor Rabinowitz: From Section 192, yes sir, the contempt statute.

Justice Potter Stewart: What -- well, this has been passed on in good many other cases in addition to those you mentioned, Sinclair and, I guess, a dozen of others (Voice Overlap) --

Mr. Victor Rabinowitz: I think not sir.

I think not if (Voice Overlap) --

Justice Potter Stewart: Or at least, it was implicit, that is -- convictions were affirmed.

Mr. Victor Rabinowitz: Not exactly.

If I may -- may I continue --

Justice Potter Stewart: Yes, you can go ahead.

Mr. Victor Rabinowitz: -- because I think that that's not quite so.

I said it was a narrow crevice under this.

Nevertheless, I think it's a perfectly sound point.

It was not argued in Barenblatt.

It was not argued in Wilkinson.

It was argued in Braden but apparently not forcefully enough to -- Mr. Boudin argued it, not forcefully enough to require any response by the majority of the court.

In all candor, I must say that it was considered and considered at very great length in the dissenting opinion in Barenblatt although it had not been argued in that case.

And I must also confess with candor that much of my argument is cribbed from that dissenting opinion, but I would like to make it nevertheless.

The Government points out that Section 192 reads pretty clearly and I suppose it does, every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before the House, or who having appeared refuses to answer any question pertinent to the question under inquiry shall be guilty of contempt.

The Rumely case, however, interpreted that statute as applying only to a situation in which the question is asked on the matter concerning which the Committee has jurisdiction.

And therefore, that statute I suggest, must be read as meaning that a witness who having appeared refuses to answer any question within the jurisdiction of the Committee is guilty of contempt.

That's what Rumely said.

And therefore, we must go back to the jurisdiction of the Committee in order to ascertain what the statute means.

It's analogous to a statute which says it shall be a violation of law for anyone to violate the regulation of the State Department.

If the regulation of the State Department is unclear, the statute is unclear.

Now, it is true that this Court at some length in Barenblatt did consider the meaning of Rule 11, the authorizing resolution.

And as a result of rather extensive research, all of which appears at page 120 of the Barenblatt decision, it found the meaning for the language which the Chief Justice had been unable to find in the Watkins case.

And it said that, as I understand the decision, the words Un-American propaganda activity really means the investigation of Communist activities generally.

Congressman Walter, when he was on the stand at Gary, expanded this a little bit.

He said that the words “Un-American propaganda activity” means and I quote, “Any activity that is inimical to the best interests of the United States”.

Congressman Walter is the ranking Democratic member of the Judiciary Committee and I should think that his views on the subject would be worthy of at least some consideration.

I am not disposed at this time to argue what that resolution means.

We are -- I am not arguing now the question of pertinency.

I am not now arguing the question of whether this particular investigation was within the scope of the Committee's jurisdiction as that jurisdiction has been determined by this Court to be in Barenblatt.

I am directing myself only to the question of whether this statute read as a criminal statute with Rule 11 was sufficiently clear and certain to justify to be able to sustain a criminal conviction.

Now, I submit that Section 192 read in the light of Rumely as with the emendation of Rule 11 does not meet the standards of -- retried to this Court of a criminal statute.

The court has formulated these standards on many occasions and let me just refer to the standard applied in the Connelly case.

The statute is bad, said the Connelly case, if and I quote, “Men of common intelligence must necessarily guess at its meaning and differ at its application”.

Well, men of uncommon intelligence have been compelled to guess at its meaning and have differed in its application.

Aside from Congressman Walter, this Court has divided on what the statute means.

I have never heard of a case and the Government cites no case.

I don't believe there is any case in which a court has examined the legislative history in order to uphold a conviction on a criminal statute.

And it seems to me on its face impossible.

If a statute is clear on its face, legislative history is irrelevant.

And if a statute is unclear on its face, a criminal statute used to sustain a conviction, then most certainly, legislative history cannot be used in order to clarify that statute.

Now I repeat, we are not here concerned with whether the Committee had jurisdiction although this subject under inquiry and I am willing although I don't think it did, nevertheless, I am willing to concede for the purposes of this argument that it had jurisdiction.

Had there been a subpoena and the motion was made to vacate the subpoena versus the motion perhaps should've been denied.

The Committee had a right to hold this hearing and to call these witnesses, I will stipulate to all of that.

But here we have a criminal statute.

And a man cannot be held criminally liable on the basis of a statute which combines the fairly clear language of Section 192 with the most obscure and meaningless language of Rule 11, language on which as I say, many, many people have difficulty.

If there ever was a case of blurred signposts to criminality concerning which the court spoke in United States against the CIO, this is it.

It would be bad enough if Rumely were the only gloss that had been placed on Section 192.

But this Court has placed still another gloss on it.

And in the Barenblatt case, the court found that these questions could be asked depending on the way a balance felt.

And when this is added to Section 192, it seems to me that to require a person to guess as to whether he is supposed to answer, whether he is required to answer a question or not, is far beyond reason.

And that brings me to balancing.

There has been so much written and discussed about the balancing doctrine as set forth in the Barenblatt case that I hesitate somewhat to take up the time of the Court to discuss this matter in detail again.

Not only have there been a majority and minority opinions of this Court on a -- in a number of important cases, but there have been law review articles written on it and books written on it, and the subject is really been discussed most extensively.

Nevertheless, it is an issue in the case and a very important issue.Petitioner contends that the balancing theory is unworkable.

But it is as of today the rule of this Court, and therefore, we must try to live with it and we tried.

I would like to read although perhaps the recollections of the Court doesn't need refreshing, I'd like to read the balancing doctrine as set forth in the Barenblatt case, a single sentence.

“Where First Amendment rights are asserted to bar governmental interrogation, the resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown”.

Now, this presents two very difficult and serious problems.

The first might be called a substantive problem.

What do we weigh?

How do we ascribe?

How much weight is to be placed to the various elements that we've put in this balance?

The second might be described as a procedural problem.

How do we as practicing lawyers trying one of these cases go about the task of convincing the court at the trial level?

How this balance is to be struck?

Do we present evidence to the court on this matter?

Do we say to the court the balance should be struck one way or another on the basis of certain facts?

I would assume from the language of the court that the question of whether X weighs more than Y is a question of fact, and like all other questions of fact is to be tried by the court.

Taking the procedural matter first, we attempted to meet this at the trial level.

And after I assure you a great deal of deliberation, we came to the conclusion that we would try to convince the court that in the particular circumstances in this case, whatever may have been true in Barenblatt and those preceding cases, the balance fell all the way.

And we call an expert witness, Professor Thomas Emerson of Yale University, the record contains his qualifications on the subject and we asked him a series of questions which went to the problem of how much weight do we give to the various elements in this scale?

How many investigations has the Committee had into subversive activities?

How many has it had into infiltration in the steel industry?

How much of this evidence was known to the Committee?

What is the extent of the Communist menace in the United States?

How important is the Communist Party as a threat to the security of the United States?

What kind of laws do we already have on our books with respect to this matter, all of this being directed to the question of where the balance lies.

Now, the Government says that his testimony which of course was presented as expert testimony was contrary to a lot of decisions of this Court, ACA against Douds, the Dennis case, Subversive Activities Control Board case, Carlson against Landon and to the findings of Congress and the Subversive Activities Control Act for example.

And it's true of course that Professor Emerson's testimony was contrary to it but what of it?

I would think that in a criminal trial if a defendant wants to prove -- that today is Friday, he has a right to come in and try to prove it.

That may be hard to prove but he has a right to try.

The court rejected the testimony.

The District Court as I recall gave no reason for rejecting the testimony.

The Court of Appeals, however, said that the testimony is rejected because the question of balancing is a matter of law and not a matter of fact.

And I must confess that at that point I have some difficulty in following the reasoning because assuming that the determination of which outweighs what is a matter for the court to decide.

How was the court going to tell, what are the facts on the basis of which this question of law is going to be determined?

Does the court reach its conclusions with respect to the importance of the steel industry with respect to the importance of the Communist Party with respect to all of these other things, by reading the newspapers or by reading acts of Congress, or by listening to the television?

I should assume normally that one of the ways in which a court makes up his mind how to decide even a question of law is by the presentation of testimony.

We think we had a right to introduce that testimony.

We think it was highly relevant on the question of balance.

Now, I would like to get to the first problem which I have characterized as the substantive problem and it is here that I have the greatest difficulty and if what I say sounds --

Justice Tom C. Clark: May I ask you a question before you go to that?

Mr. Victor Rabinowitz: Yes sir.

Justice Tom C. Clark: Let's say we agree with you on the professor's testimony, shall we consider here this charge?

Mr. Victor Rabinowitz: There is an offer of proof in the record.

The testimony is set forth in full in the record and it is before Your Honors.

Now, of course --

Justice Tom C. Clark: Can we throw it in the balance, should we probably make the balance or is it --

Mr. Victor Rabinowitz: Well, if you're going to make the balance and you are prepared to accept his testimony, I suppose it could be thrown into the balance.

Of course, there was no cross-examinations since it was merely in the form of an offer of proof.

There was no countervailing testimony.

That is, the Government made no effort to meet the testimony but its here for the court to examine.

I should like to discuss the problem of what gets in this balance and if I sound in this discussion more like a metaphysician than a lawyer, all I can say is that it wasn't my idea of this balancing theory.

The Solicitor General says -- or let me put it this way, there are two sides to this balance.

There's the side for affirmance and there's the side for reversal.

The side for affirmance which is the Solicitor General's side, says that the public interest that is involved in this situation and I quote from page 48 of the brief is, the need for information concerning putative subversive activities in a critical area of our national life.

Now, remember in discussing this, I am not discussing admissibility of testimony or pertency -- pertinency of testimony.

I am addressing myself to the question of how much weight shall be given to it in this constitutional balance?

How important is it to outweigh the very weighty considerations which everybody concedes at least in the language, everybody concedes lie on the other side of the balance.

How much importance is it that the Government have this -- the answers to these questions?As I said before, this was the tenth inquiry into the question of Communist infiltration into basic industry.

Thousands -- literally, thousands of pages of testimony had been taken on this subject before the Gary hearing and hundreds of witnesses had been called.

It is conceded by counsel that much of the testimony sought of Mr. Yellin was corroborated of information that was already in its files.

As a matter of fact says the Government, it had most of this information, its far back as 1947.

Look at the debates when the Taft-Hartley law, Section 9 (h) was passed.

And I might refer also to Mr. Justice Jackson's opinion in ACA against Douds.

Now, the Government responds to all of this by saying that the -- it isn't for the court to decide whether Congress needs more information.

It isn't for the court to decide whether Congress wants corroboration.

And I would say that would be true if we were talking about questions of admissibility because I suppose counsel in a case have the right to get evidence which corroborates information in its files if he wants to.

But it is for the court to decide how much weight is to be given in the balance, otherwise, how can we possibly apply the test in the Barenblatt case.

How many times are we to listen to a repetition of the same testimony sometimes from the same witnesses repeating over and over and over again the same the facts with respect to alleged Communist infiltration in the steel industry or in other basic industry before we get to the point where we say this weighs as only a grain of sand in the balance.

It's not admissibility, it's not pertinency but weight in the balance.

Is there not a time when this must end and we will say that the constitutional rights of the witness will overcome?

Mr. Tavenner in his testimony in this case said at one point and I quote, its in the footnote of page 19 of my brief, he said, “We received a considerable amount of evidence at Flint, Michigan or perhaps eight or 10 instances of colonization of the exact type that you describe”.

How long do we continue to deprive persons of the way he writes which everybody admits that they have in order to get this additional bit, this additional one man who will testify to something after thousands of pages of testimony have taken and hundreds of witnesses have testified on this subject?

That's on the one side of the scale.

What have we got on the other side?

The first place we have the petitioner's right.

The right to engage in public debate on critical issues, a right which the court has on frequent occasions held there's tremendous importance and the right which the activities of this Committee inhibits for reasons that are set forth fully in the Watkins and Sweezy cases.

But, there is another right, a right which a very great Justice of this Court felt was perhaps the most important right of all.

Mr. Justice Brandeis said, the makers of our Constitution recognized the significance of man's spiritual nature of his feelings and of his intellect.

They knew that only a part of the plain pleasure and satisfactions of life are to be found in material things.

They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

And they conferred as against the Government the right to be let alone, the most comprehensive of rights and the right most valued by civilized men.

This is the right which lies or one of the rights which lies on one side of the balance.

But there is another element in this balance on petitioner's side which I think is even weightier and that is the right of the public to hear.

In De Jonge, this Court said the security -- the security of the Republic, the very foundation of constitutional government lies in full opportunity for free political discussions.

Edward Yellin is the petitioner in this case but ranged along with him as co-petitioners unknowing, sometimes perhaps even unwillingly, there is a host of other persons.

There is the Committee for Sane Nuclear Policy which was investigated by the Committee and was almost destroyed, if not completely destroyed, by the Committee.

Next week in this city, there will be hearings at which some 20 witnesses of Women Strike for Peace will be called before this Committee.

Last week, an organization called Medical Aid for Cuba, two weeks ago perhaps, was the subject of an investigation by this Committee.

The World Fellowship camp was the subject of an investigation not by this Committee but by a little Committee of little -- Un-American Activities Committee up in New Hampshire.

The Integration Movement, almost every progressive movement in the United States has at one time or another been subject to the investigation by this Committee.

To my mind, this is the weightiest element of all.

Now, the Government responds by saying Mr. Yellin wasn't trying to debate, he wanted to keep quiet.

He had an opportunity to express his views freely at this Committee and they would've given him plenty of opportunity to do so perhaps and perhaps they would have, I don't know.

But certainly the right to engage in free political discussion involves the right to choose your own forum.

No one who was present at the Gary hearing could possibly have confused that hearing room with the free marketplace of ideas which is supposed to be the guarantee provided by the Constitution.

Mr. Yellin, if he wanted to express his views, had a right to express his views in the circumstances and in conditions that he chose, not in conditions in which he was appearing as a witness before a Committee in a courtroom crowded with hostile persons, with the opportunity for an exchange of ideas which the Constitution is supposed to guarantee was not present.

Now, I'm aware as I speak that really in talking about this balance, I am attempting to weigh the imponderable, to measure the limitless.

In a sense, that's perhaps the principal reason why I feel that the Barenblatt balancing test is improper.

It cannot be applied.

It would turn the law into a scholastic's debate rather than a living technique or a living method for ruling man and in this case, for protecting the fundamental freedoms without which, we have no democracy here.

And there are other reasons which have been called to the attention of the court why the balancing theory is not consistent with the Constitution.

As Mr. Justice Black has so frequently pointed out, the language of the Constitution is absolute.

Furthermore, the doctrine is based on the fullest premise.

Justice William J. Brennan: If you (Inaudible) -- if you follow the literal language of the Constitution, of the First Amendment, what kind of a case would you have?

Mr. Victor Rabinowitz: If I followed the literal --

Justice William J. Brennan: What language?

What literal language of the First Amendment are you relying on?

Mr. Victor Rabinowitz: Well, the literal language that I am relying on is that Congress having no power to invest -- to pass a law restricting propaganda activities likewise Congress has no power to conduct an investigation into that area (Voice Overlap) --

Justice William J. Brennan: Well, but you have to depart in the literal language.

Mr. Victor Rabinowitz: Well, I think it's not the case.

Justice William J. Brennan: Well -- being absolute -- being absolute is being literal and you have to depart from the literal language of the Constitution.

Mr. Victor Rabinowitz: I submit that furthermore the Barenblatt decision, Braden, and Wilkinson decisions provide -- proceed on a false premise namely that our national security can be injured by too much free speech, by too much political organization, by too much free association.

I don't know of any society, certainly no well-established society whose security was ever threatened by too much free speech.

It may be true of a country that is just emerging from colonialism where for a period of time, limitations on free speech are necessary, but we're a strong country, probably the strongest in the world.

Our political institutions are stable and the greatest threat to that stability is I suggest an interference with the freedom of speech.

I would like to return now to the point raised by Mr. Justice Stewart at the very beginning namely the remarks at page 26 of the Government's brief, namely the delicate and dangerous of the -- the most delicate and dangerous of a courts' responsibilities with which justifies a constant review of the constitutional issues that are involved in these cases.

The Solicitor General suggests that this -- the issue raised by this controversy relates somehow to the balance of -- to the balance of powers between the Court and Congress.

And that the real issue in this case, the most important problem in this case is the manner in which the Congress, an equal and coordinate branch of Government, has performed one of its own constitutional functions.

And it goes on to refer to the dangers of collision between this Court and the Congress.

Now, I admit that that is a dangerous and a difficult controversy and a delicate one also.

And I don't think that it is in this case too in a very great extent.

I should have thought that the fundamental problem with respect to the extent to which this Court may interfere with if I may use that word or review the actions of Congress had been set on the Marbury against Madison.

And while I know the question keeps recurring every once and a while, I really think it's a pretty unimportant part of this case.

There is, however, a delicate and a dangerous issue before this Court.

And that relates not to the relationship between this Court and Congress but rather to the much more important, much more critical relationship between the citizen and this Government, the extent to which the Government may interfere with the freedom of speech and the freedom of association of the individual.

This is the First Amendment.

This is the issue which has been -- which has come before this Court scores of time, particularly in the last 17 years, I guess it is since the Cold War began.

And although I don't want to discourage any of the members of the court, my guess is, it's going to continue to come before this Court because it is a difficult and a dangerous and a delicate problem.

It's the issue which I think begun in ACA against Douds and then to the Dennis case, and the Yates case, and the Ballin and the Lerner case, and the Uphaus, and Watkins, and Sweezy and Barenblatt and all of these other cases.

It had to be faced in those cases and I think it has to be faced again and it will continue to come before this Court as long as there is a court because the problems which arise out of the efforts of a Government to interfere with the freedom of its citizens are never ending.

The effect of the decisions of this Court are well-known.

It has resulted in -- well, one of the members of this Court has referred to in two articles written I believe 10 or 12 years apart as the Black Silence of Fear or more recently the Submerged American.

I think this Committee has played a tremendous role in creating that Black Silence of Fear.

And while it is not the only one of our Government agencies which has resulted in submerging the American and cutting off so much of the vital debate which is necessary if our country is to survive as a free country.

It has played its role in that.

I hope that the Court will take this opportunity to reconsider the decisions that I have referred to and to free our people and our democracy from at least one of those repressive forces which has interfered for I guess about 25 years now with the free and full expression of opinion by Americans and their free association.

Thank you.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

I would like first to deal with petitioner's only non-constitutional claim.

One that he was not obliged to answer the Committee's questions because the Committee violated its own rules, its act of questioning witnesses in executive sessions.

The pertinent facts you will recall are these.

The Committee has a rule which apparently dates back to 1953 set forth on page 82 of our brief.

If a majority of the Committee or subcommittee duly appointed as provided by rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation.

The Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing.

Pursuant to this rule, the subcommittee met and considered whether there was sufficient reason to believe that questioning petitioner in a public session might endanger the national security or unjustly injure his or another's reputation so that the petitioner should first be preliminarily questioned in an executive session.

The commission -- the Committee decided that there was not enough reason.

Justice Potter Stewart: Now, where is the -- where does it appear in the record that the Committee --

Mr. Cox: On page --

Justice Potter Stewart: -- did apply the test of the rule?

Mr. Cox: I infer that from the statement that Committee met -- it's on Record 70.

The Committee already -- very top of the page, the Committee passed on the question of whether or not we would hear Mr. Yellin at a session when the purpose of calling him was discussed.

It was decided that the rule with respect to an executive session was not applicable.

I take it also there is nothing explicit that says we apply each of the tests in the rule.

It says it was decided that the rule was not applicable and I would think that was enough in the absence of anything contrary.

Justice Potter Stewart: I would think that would probably be enough in from the absence of anything to the contrary but I'm -- notice that on page 82 of the record, there is a suggestion to the contrary that they -- and this again, I think, is Congressman Walter testifying, and he doesn't mentioned anything about damage to the personal reputation of a witness.

And he does purport to set out there what's -- what standards are taken --

Mr. Cox: This was a -- this is true.

It is also true that he was being asked at that stage a general question.

Justice Potter Stewart: Yes.

Well, they begin with a question on -- bottom of page 81, “The Committee does sometimes hold executive sessions, doesn't it?”

“Yes”.

And what are the considerations which the Committee uses in determining whether to hold executive sessions?

Mr. Cox: And then it -- then he goes -- then he discusses what it -- the Committee usually does (Voice Overlap) there's no doubt about that.

But I suppose that it could be argued that the Committee did hear what he usually did.

I would think that a general testimony in answer to a general question was really less persuasive --

Justice Potter Stewart: Than the rule itself?

Mr. Cox: -- than focusing the -- on the statement that we decided that the rule was not applicable.

Justice Tom C. Clark: The reason -- they state -- they state the rule was not applicable was because the investigator was a former FBI agent.

Mr. Cox: I'm sorry, I got --

Justice Tom C. Clark: Top of page 70.

Mr. Cox: Well, they said that the -- the reason --

Justice Tom C. Clark: Was not applicable because the investigator was a former FBI agent.

Mr. Cox: Well, I think he interrupted his train of thought that the other part of the answer is.

Well, his story was that the man was a known Communist.

That he had been active in international conspiracy.

That he had deceived his employer and so forth.

I think that's all part that what the investigator said is part of the reason that the former employment of the investigator, except perhaps this -- they thought that added to his reliability.

Chief Justice Earl Warren: But General, after that -- after that answer that you just read of Senator McClelland's, as you then having said that it was in answer to a general question, there was another one.

“Are those the only circumstances under which executive hearings are held?”

The answer is, “I don't know of any other except that where we are fearful, the testimony might be induced, it could be harmful to the national defense.

We are not so sure about the testimony of any witnesses”.

Isn't that rather specific?

Mr. Cox: Well, I think it's specific that that was all he could recall.

It certainly is.

I wasn't able to follow Your Honor exactly because I was still back on page 70 because I've got the graph, he did not mention this reason.

I would think so far as that goes, that the Committee's own interpretation and application of the rule was to be given very great weight indeed if it was not binding.

Unknown Speaker: Was it --

Mr. Cox: The Committee -- well, I think that it's a Committee, it's a rule adopted for the Committee's own guidance.

It's a rule which purports to confer no rights on witnesses any way.

It's a Committee which leaves -- it's a rule, excuse me, which leaves the Committee of the very widest discretion.

In each instance, it's simply, if the Committee believes, it should -- that these things would happen, there they should hold a preliminary statute.

We think three -- to summarize, we think there are three answers to this contention.

One, that the rule was satisfied.

Second, that the rule confers no rights upon witnesses, that it sets up no procedure, that it is written in terms guiding the Committee's discretion, and that failure to follow it adds nothing to the witnesses' rights.

Third, I would lay stress, more stress than I have in my brief perhaps on the fact that the objections raised by the witness were -- that no objection was raised by the witness on the ground that he had not been questioned in a preliminary executive session.

On the contrary, his objections under the Fifth Amendment -- under the First Amendment and the lack of congressional power were all general objections which would be equally applicable in an executive session or in a public session.

Here --

Chief Justice Earl Warren: When he tried to lay a predicate for it, didn't he, by offering the telegrams?

Mr. Cox: But the counsels said --

Chief Justice Earl Warren: Was there any other reason than that?

Mr. Cox: -- this counsel said that he would like to have the telegrams in the record.

Chief Justice Earl Warren: Yes.

Mr. Cox: And then, following not any idiosyncrasies of Congressman Walter but in an established rule of that Committee, counsel was reminded that all counsels were permitted to do in that Committee hearing -- were to advise witnesses and not speak.

The petitioner at that stage did not say a word with respect to a desire to be heard in executive session.

It's significant I think too that the petitioner has never given the slightest indication that he would testify in executive session.

Indeed, his request for the executive session, his objections in the court, his objections before the Committee, are all carefully void any intimation that he would've been test -- willing to testify under any circumstances.

It would seem to me to be a travesty now to set aside and justify his refusal to answer on the ground of which so far as we can tell didn't possibly influence his conduct.

There is one other point with respect to the rule that I split over.

The telegrams -- the telegram requesting the executive session was addressed to Committee counsel.

It arrived very late after the Committee and the counsel had left Gary.

There's nothing in the rule that says that the decision must be made on the request.

The Committee had made it.

There was nothing whatsoever new set forth in the request and the staff director, I infer although this does not appear in the record, answered mindful of the Committee's private -- previous decision.

The witness undoubtedly could've raised the question later on what would've happened, of course, I don't know and neither does anyone else.

I think that's the whole case on that point and that I should now proceed.

Coming to the constitutional issues, I must make two preliminary remarks.

First, we are concerned here with the refusal of a particular witness to answer four specific questions during the course of a particular congressional investigation.

I stress the point because petitioner's reply brief complains of our close and literal attention to the facts of this case and says that the real issue is what the petitioner's calls the enormity of the Committee's offense against the American people.

This Court, I need hardly say sits to decide particular cases and we're here concerned with the case of Edward Yellin, a case which as I shall argue later is very different and in our view much stronger for the Government than any of the previous cases that have come before the court and other conceivable cases involving the Committee's activity.

The rights of other witnesses not to answer other questions under other circumstances and on other occasion will have to be decided when those questions arise.

Second, I must emphasize that we are not concerned here with the rightness or wrongness, the wisdom or folly, the necessity or superfluity or even the fairness or unfairness of the Committee's action.

The responsibility for legislating is vested in the Congress.

With it goes the power and duty of deciding what bills should be considered.

What information should be obtained and how it should be obtained in order to frame appropriate legislation.

When an individual asserts that the Congress has trespassed on one of his individual rights, then of course, this Court has the constitutional duty of deciding between the two.

The court can avoid unseemly conflict and avoid upsetting the balance of our constitutional system only by exercising special care in such cases in marking the line between violation of constitutional rights which the courts must redress and simply bad judgment in the exercise of legislative power which is remediable only in Congress or at the polls.

The previous decisions of this Court coming down directly to the constitutional merit, the previous decisions of this Court require affirmance of the judgment.

Barenblatt against the United States, Wilkinson against the United States, Braden against the United States are squarely in point, that these -- this is an easier case than any of them.

Petitioner admits these constitutional claims he's made cannot be affirmed or accepted without overruling those decisions.

I'm not unmindful that occasionally in our constitutional history exact precedence have been overruled.

This -- and appropriate indeed and essential when the inherited law has lost reality or changes in the condition and the community has altered the conditions on which the precedence were based.

And so that today the precedent would have a different social or economic impact than at the time that it was decided.

The present case obviously does not fall in that category.

Justice Hugo L. Black: Is that -- do you mean by that, that that's the only conditions, those are to be set up and barred beyond which (Voice Overlap) --

Mr. Cox: No, no, I mean, nothing is absolute as that, Justice Black.

I think that is a relevant circumstance, a highly relevant circumstance in deciding whether a decision should be overruled.

Now, I was simply -- but there are others.

I would like to point out that that circumstance is not applicable here.

That Barenblatt, Wilkinson, and Braden were recently decided by a full court after careful deliberation.

Justice William O. Douglas: Since I've been on the court through that, this happened and then a membership of the court changed and the no case was rather immediately overruled as I remember it.

Mr. Cox: There have been -- there have been instances of that.

The two cases, two situations in which it would seem to me that overruling a case came easiest was where there were changes in conditions or where the decision was an isolated peak as it were on the amendment.

Neither of those is applicable here.

Barenblatt, the basic postulate of Barenblatt, Wilkinson, and Braden, that the Communist conspiracy is a threat to the national security into which Government may inquire in concerning which it may legislate and why is not applicable to ordinary political party is the predicate of at least the score of decisions over the last 15 years.

And Barenblatt and the cases that followed it were preceded by decisions in the lower court which were quite uniformly in accordance with those decisions.

Now, I submit with the greatest deference that the power to overturn such an established body of constitutional law without any relevant changes in the underlying conditions should be exercised only upon the clearest conviction of a very serious error before the --

Justice Hugo L. Black: Wouldn't that rule apply at any time to overruling the case?

Now, that's a general statement.

I don't see why it could be limited to those few grounds.Of course, it should -- what I mean is, do you say that it should be limited to the cases where there's clearest error, but if the court thinks that the clearest error, then your standard is met, is it not?

Mr. Cox: Well, it's a matter of degree as of clarity.

The degree of what was -- one must show in order to overrule it, I presume that it involves too -- consideration of the arguments on the -- the reasons not to overrule the decision.

For I point out with all respect that the condition which is indispensable to all liberty acceptance of the rule law depends on preserving the principle that even the highest court must give judgment not simply according to its use of policy however just or wise but according to a law that binds the courts no less than the litigants, the judges, no less than the judge --

Justice Hugo L. Black: Now, I would ask (Voice Overlap) --

Mr. Cox: -- and that is a consideration --

Justice Hugo L. Black: I would like to ask you another question with this.

That implies that the court sometimes does it.

The basis of what he speaks the law ought to be rather on the basis of what he thinks it is.

And the mere fact that one vote to overrule a past decision of the court certainly cannot give rise to attributing to that person, the desire simply to get his own notion to the -- of the law even though they're wrong.

Mr. Cox: But I -- I'm thinking that's true but there are -- there are times when a court decision creates a rule of law which did not previously exist and there are times in constitutional law where the line between law and policy, evaluation of social and economic conditions become exceedingly binding indeed.

If I imply that anyone was simply trying to make the world according to his (Inaudible), I had no -- no such intention.

I do mean to imply that there are weighty considerations on the side of adhering to an established body of decision and I think that that weight is the greatest when one does not have in favor of arguing for change, either the fact that it's an isolated decision or the fact that the underlying conditions have changed.

Justice Hugo L. Black: In the final analysis, I suppose you would agree that a judge who was here under oath to support the Constitution should construe it after considering all of these things that you say according to his best judgment of what it -- what it means?

Mr. Cox: Of course.

Coming to the substantive question, in our view, reason and principle also demonstrate quite apart from the authority that the use of compulsory process in examining petitioner as a witness before the Congressional Committee deprived him of none of his constitutional right.

In examining this question, we may begin with the proposition that it said along that Congress' power to use compulsory process to secure information in aid of a proper legislative purpose.

It is also clear beyond dispute on this record that the questions that petitioner was directed to answer were asked in pursuance of a proper legislative purpose.

The Committee's purpose was set forth in the resolution authorizing the hearings in Gary and it was restated by the chairman at the start of the hearing in the presence of all the witnesses including the petitioner.

Without reading his statement at length, it emphasized that the Committee was holding the hearing for the purpose of receiving testimony concerning Communist techniques and tactics of infiltration, and the extent, character, and objective of Communist Party activity in basic industry.

He then went on to refer to the existing laws over the administration of which the Committee was exercising oversight and to some of the bills and kinds of bills that were before the Committee at the time the hearing was held.

Among those proposals just to make it specific that there was legislation to which this inquiry was highly relevant, were Section 9 (h) of the Taft-Hartley Act which had been repealed.

HR 8151 which proposed to amend the Internal Security Act by setting -- by authorizing the Secretary of Defense to establish a system of security around defense plants.

Another bill introduced by Congressman Shearer, who was one of the Committee conducting the hearing to accomplish the same purpose by other ways and various proposals to amend the Smith Act, the Internal Security Act, and the Communist Control Act.

Whatever might be the merits of any particular piece of legislation, it is also -- it is not denied in this case at least that Congress has some power to enact some legislation, to deal with infiltration of vital defense plants, in basic industries by professional revolutionaries through fraud and deception for the purposes of a foreign dominated conspiracy.

And that is the kind of conduct that the record shows very clearly into which this inquiry was being conducted.

It's also plain that the pertinency of the questions was made clear to the petitioner.

He acknowledged that he was present when the chairman made his statement and as I understand it, he has not challenged the pertinency seriously in the lower court or in this Court.

It follows therefore that the use of compulsory process was a lawful exercise of legislative power unless it violated some constitutional privilege or other restriction upon the Congress.

Petitioner's claim is that the answer violate -- is that the use of that process violated the First Amendment.

We think otherwise.

In the beginning, it is plain that petitioner is not being prosecuted because of any statements, any publications, or any associations.

He is being prosecuted because of a refusal while under subpoena to answer the inquiries of the legislative body.

The use of compulsory process is concerned primarily with the witness' performance of the normal duties of all citizens to furnish information needed in the legislative or judicial process.

Second, the use of the compulsory process did not in itself curtail petitioner's freedom of expression or association.

He remains free from any governmental compulsion to think, speak, or form such associations as he chooses.

Nor was this petitioner being tolerated by the Committee because of any past statements or association.

Being so far as the record shows, he has never made any past public statements of any kind.

He was subpoenaed because he apparently could give information needed in the legislative process.

He does not even claim that this is a case of exposure for the sake of exposure.

In this case, we submit, in this respect we submit, the case is markedly different from Uphaus, Wilkinson, and Braden where the dissenting justices did find occasion, that did find that the occasion for calling the witnesses was their public criticism of the Committee.

There is nothing like that present here.

Fourth, the Committee's questions I think can fairly be described as primarily concerned with conduct with reported infiltration of professional revolutionaries into the basic steel industry concealing their background and identity through fraud and deceit all in support of a program looking forward to disruption of normal trade union activities, political strikes, or sabotage, or espionage as might be directed by a foreign power.

Undoubtedly, the questions would also have elicited information concerning petitioner's associations and beliefs or possibly including his speech.

But this is because the speech and associations were an extra complaint intertwined with the conspiracy to engage in conducts subversive of bona fide unions and dangerous to the national security.

In short, the petitioner's only complaint here when one analyzes it carefully is that the consequences of compelling him to testify about conduct might result in disclosure of views and associations sufficiently unorthodox, unpopular, or even hateful to the general public to damage him and perhaps to discourage others from embracing unorthodox or controversial views or associations in the future.

Let me make it clear that I do not suggest that those consequences raise no constitutional issue.

Of course they do.

In some cases they lead to the conclusion that the use of compulsory process would violate the First or the Fourteenth Amendment.

My only point is that in this case, any interference with freedom of association as an indirect consequence.

The constitutionality of which cannot be decided without taking into account the justification for requiring the disclosure.

Let me take a moment to try and make that clear, both the distinction of its importance by a simple and indeed perhaps trivial example what I think it illustrates the point.

Suppose that a man is on trial for first degree murder and he offers an alibi to the effect that at the time the murder was committed he was at a closed meeting of the top members of the John Birch Society.

The defendant subpoenas me as a witness hoping to prove through me that he was at that meeting.

Now, if I am compelled to answer on the ground overruling my claim of freedom of speech or freedom of association, certainly the disclosure of the secret membership in the John Birch Society would be damaging to my career.

I assume that I would lose the pleasure of appearing before this Court as often as I do, I doubt that I should be welcomed back by my former associates with much enthusiasm.

Others who observe my faith, I suppose might be deterred from engaging in the same associations at least under the same circumstances.

Nevertheless, it seems fair to conclude that no one did -- would dispute that the testimony could be required.

That the interest in the fair administration of justice would prevail over my interest in privacy of associations and that it would add nothing to the argument to say it would be true that the public interest in my associational secrecy so that others might be -- might feel free from engaging in associations would also be sacrificed to some extent.

Now, of course I don't say that the present case is identical with the example.

My point to repeat it is that the effect on First Amendment freedoms in the present case is indirect and consequential as in my example.

And that therefore, one cannot dispose of the present case simply by asking whether freedom of association might be adversely affected by requiring the testimony.

Justice William O. Douglas: But if you are engaged in the balancing processes, I gather you are, then you would have consider I would think in this case, the Yellin case the extent of which Yellin's testimony, it was necessary for the (Inaudible) by Congress that it is --

Mr. Cox: No, I intend to --

Justice William O. Douglas: -- provided by the (Voice Overlap)

Mr. Cox: I intend to -- I intend immediately to discuss some of those questions as I do deal with the issue, I don't attribute any particular significance to balancing, justification, cogent reasons for invading the privacy, any of the expressions that recognize that here there is a conflict between two interests.

And where there is a conflict between two interests as so often in the law, the court must measure the one in the light of the other and determine their relative importance.

The point stated by the Chief Justice very well in the Watkins case.

It is manifest after pointing out the effect of some of the disclosures that might be compelled, he went on to say.

It is manifested despite the adverse effects which followed upon such compelled disclosure or private matters not all such inquiries are barred.

The critical element is the existence of and the weight to be ascribed to the interest of the Congress in compelling disclosures from an unwilling witness.

Here, the public interest in questioning petitioner lay in obtaining for legislative purposes information concerning putative subversive activities in a vital area of our national life.

The information if the reports the Committee had withdrew was relevant to national survival.

The Communist Party, Congress had previously found, also purportedly a political party is in fact an instrumentality of a conspiracy to overthrow the Government of the United States.

The policies and programs of the Communist Party are secretly proscribed for it by foreign leaders of the World Communist Movement.

Even if that finding were not supportive by convincing proof, certainly there would be the strongest reasons for inquiring further into the conduct of a conspiracy which there was substantial reason or indeed any reason to believe might be being manipulated by a foreign and sometimes hostile power for treasonable purposes.

Nor are we concerned here and I wish to emphasize this distinction between some of the prior case, nor are we concerned here with a general inquiry into the activities of the Communist Party, the Committee was investigating a reported program for infiltrating highly educated rev -- professional revolutionaries into the basic steel industry by concealment, fraud and deceit.

And then by having the Communist agents pose as ordinary workers to subvert labor unions and other worker organization to Communist purposes.

The basic steel industry, I need hardly say is the core of our economy in time of peace and its lifeblood in times of war.

Justice William O. Douglas: I misunderstood the record.

I understood that the Committee already had this information.

Mr. Cox: I think that --

Justice William O. Douglas: I don't --

Mr. Cox: That is an overstatement and it seems to me that the record, with all deference, does not bear it out.

I wonder if I might simply finish discussing the subject into which the Committee was inquiring and then deal with the question of what petitioner --

Justice William O. Douglas: But suppose (Voice Overlap) --

Mr. Cox: -- have had.

Justice William O. Douglas: -- certainly.

And anyway, like it goes to my earlier question as to whether or not -- whether you're weighing or balancing, whatever the phrase is, whether the (Voice Overlap) --

Mr. Cox: Well, let me say --

Justice William O. Douglas: -- the importance of this particular witness' testimony to the performance of the legislative function must not be considered.

I don't know if this -- did -- they seemed to have had all the information that they could possibly got from this man.

Mr. Cox: Well, I intend to -- I intend to find out --

Justice William O. Douglas: And certainly sending him to prison doesn't get him more information.

Mr. Cox: Well, let me -- let me discuss the reasons for calling petitioner now then if I may and then I will come back to the national importance of the subject that the Committee was investigating.

Petitioner was in a position to furnish extraordinarily accurate and pertinent information about this reported conspiracy.

He was not subpoenaed as the result of indiscriminate dragnet procedures.

The Committee had information before he was called that he was a long time Communist Party member who had actively participated in the party's organization of the steel industry.

In the Gary area, he was apparently one of the professional revolutionaries with higher education whom the party had recruited to conceal their past, pose as laborers and thus gained for Communist purposes key positions upon the workers in basic industries.

His education and this long experience put him in a position where if he were willing, he could give invaluable information upon the direction, techniques, and purposes of the program of colonization.

Now, it is said that although the Committee was asking questions directed to that very program of action, that the Committee had all the information it could possibly use on this point.

And that this would be redundant and therefore of no value to the Committee.

We think Mr. Justice Douglas that there are two complete and very short answers to that argument.

In the first place, it seems to us to have no foundation in effect.

We can't tell what petitioner would've said since he refused to even to tell where he lived in 1949.

But every indication in the records shows that he could've contributed in part for the testimony.

Now first, at the time petitioner was called, there was no witness who had testified about Communist infiltration in the steel industry in Gary, Indiana.

Its nonsense I think to say that testimony about what happened in Buffalo or some place in the fish industry down in North Carolina or in the auto industry in Flint covered this subject completely.

Certainly, a conscientious legislature would wish to know the extent of the colonization programs in terms of the number of vital industrial plants effect, it wish to know its intensity in terms of the number of professional revolutionaries are on that area.

And he'd wish to know about the degree of its success or failure.

If the evidence convinced him that the conspiracy was ineffective and made up on the whole of rather pathetic or radically inclined young men, he might conclude that the wisest fallacy would be to leave them alone.

If the evidence showed that numerous vital steel mills were affected and that there were professional revolutionaries in key union positions of each, new legislative measures might be deemed appropriate.

Petitioner's testimony covering the vital Gary steel mills would've thrown important new light on those methods.

Second, --

Justice William O. Douglas: I suppose that would be true if you were investigating the church or the -- what (Inaudible) confession on it.

That would be very interesting information that some Congressmen that I think --

Mr. Cox: Oh, we're -- we're dealing with questions of degree here as I recall it, like the privilege in self -- against self-incrimination at least in a judicial proceeding.

The privilege of the confession is absolute.

As I was arguing --

Chief Justice Earl Warren: Well --

Mr. Cox: -- earlier, the right to privacy of association seems to me not to be absolute.

The second point on which Yellin could give new and important information --

Justice William O. Douglas: The relevancy of my question obviously was whether or not Barenblatt is -- should be overruled.

Mr. Cox: But I think that in this case, is an easier case from the Government's point of view and that therefore even if which I don't suggest for a minute, Barenblatt were wrong, it shouldn't be overruled in this case.

I think this an exceedingly strong case and I don't mean to guess any aspersions on Barenblatt.

But I think one could disagree with Barenblatt and both to affirm in this case, I think that's quite clear.

Justice John M. Harlan: Unless you're going to say that the Congress of the United States has no power to investigate that he was a Communist.

Mr. Cox: But this is even more than the field of Communism, I think Justice Harlan.

This is a -- this is in a vital -- I didn't develop that part of my argument, but this is in a vital steel mill.

It also isn't a -- in an -- which has been a tremendous national importance and I needn't relate all the occasions on which it's been a tremendous national importance.

So it also pertain -- excuse me sir.

Justice Arthur J. Goldberg: (Inaudible) that this constitutes a national burden (Voice Overlap) --

Mr. Cox: This had been one of the points that I -- we do develop in our brief and that I had intended to develop if I hadn't gone on to deal with what petitioner could add.

It's also of relevance I think that history demonstrates that the effect of these activities in the labor movement is not sheer fantasy that there is a -- have been a number of occasion early during World War II if you recall it Justice Goldberg.

There were Communist strikes in North American Aviation and in Allis-Chalmers in Milwaukee.

Unknown Speaker: That was in the (Voice Overlap) --

Mr. Cox: So that these are very real in this industry and I think it is quite different in those respect, from education, propaganda activities, those are different cases which have been decided and we are (Inaudible) --

Justice William O. Douglas: How about the NAACP versus Alabama?

I suppose many would think precisely as you do in this case, in that field, they're very critical.

Mr. Cox: I doubt -- I'm afraid I don't quite understand the point of Your Honor's question.

How would I distinguish that case?

Justice William O. Douglas: Yes.

Mr. Cox: Well, I think the difference is that there was their suggestion, no overriding public interest in the information sought to be elicited.

That's one difference.

The second difference is that there, the information sought to be elicited as I understand it had to do only with associations.

Whereas here, the effort is to investigate conduct and the associations come in collaterally and incidentally.

And I may say this seems to me also to be true of the Florida case involving the NAACP, NAACP against Gibson.

That -- and of course, it goes without saying that I would distinguish between the conspiracy to infiltrate bona fide unions in the labor movement and the -- in the vital steel industry is altogether different from the activities of the NAACP.

Now, coming back to the question, was this information that Yellin was requesting to give redundant?

I've indicated that it dealt with the new area and I could've dealt with it in a degree of detail and in a more vital segment of industry than before.

It also have --

Justice Byron R. White: (Inaudible)

Mr. Cox: In the area of Gary, it had very little about the steel industry.

I just -- to the best of my recollection all it had was about Buffalo.

Justice Byron R. White: (Inaudible) they really want to find out.

Mr. Cox: Well, they wanted to know whether he was in Gary --

Justice Byron R. White: Yes.

Mr. Cox: -- as preliminary matter to know whether he could give it --

Justice Byron R. White: Was it also a fact?

Mr. Cox: What?

Justice Byron R. White: Did it also -- did the record shows that (Inaudible)

Mr. Cox: The record shows that they had some information that he was in Gary, yes.

But I think that -- I think this is quite clearly a preliminary question, the questions that go to the heart of the inquiry where those that counts two and four are based on, did he know any colonizers in the steel industry in Gary in 1957, was one, and the other related to the colonizers in the steel industry prior to 1957.

Justice Hugo L. Black: I thought one of the counts under which he was convicted was the one that said he declined to tell where he lived?

Mr. Cox: That's true.

What I was -- what said was that the heart of the inquiry was embraced in the two counts that I just mentioned, that the one that dealt with where he lived was a preliminary question which would normally be asked a witness in order to found out whether he could give this more vital information on the point.

Justice Hugo L. Black: I don't suppose he should be doubted on whether they knew where he lived, isn't it?

Again, he's been convicted for failure to tell them where he lives as though that makes (Voice Overlap) --

Mr. Cox: Well, people had --

Justice Hugo L. Black: -- on the part of the Congress.

Mr. Cox: People -- well, I'm not arguing that the need to know where he lived Justice Black was essential (Voice Overlap) --

Justice Hugo L. Black: Well, how can you (Voice Overlap) to support that count under the balancing doctrines?

Mr. Cox: Well, I think to support that count, that I must show that this was closely related and preliminary unto the subject under investigation.

If you're asking a man what he knows about activities in Gary, it's important to know how much he -- how much of the time he was in Gary.

Justice Hugo L. Black: If they didn't already know?

Mr. Cox: If people have been -- people have been -- I've been -- the text in the last few years as if my residence was a place where it wasn't, this is in -- may be erroneous information.

Justice Hugo L. Black: Well, do you think there's any possibility that first, we should read this record and not know that they knew where he lived in Gary, Indiana?

Justice Byron R. White: If the judge may want to verify the information, I suppose that some of the --

Mr. Cox: Insofar as where he lived, well, yes.

The other part, the heart of the inquiry seems to me to have gone far beyond verifying.

Justice Byron R. White: But even if they do (Inaudible)

Mr. Cox: I think they -- I think they knew that they didn't know as much in this instance.

I've already pointed out that they hadn't had any testimony directly about colonizing in Gary at all.

I would like to add that they didn't have any testimony about activities in Gary either then or later after 1950 or 1952.

This was a hearing in 1957.

Looking to -- or early 1958, looking to legislation to be enacted at that by some early Congress of manifestly knowing whether these efforts had continued or not, or whether they had been intensified or not at Gary would be highly important to one who is trying intelligently to make up his mind on this precedent.

Third, as Your Honors suggested, the witness, there was every reason to believe could have given information on this point in a great deal, more detail than any of the previous witnesses who had testified.

There has been -- I understand that no colonizers, they were called, no professional revolutionaries who infiltrated by this process of fraud and deceit who has been willing to testify before the Committee.

Even if there had been one or two, here was one which could've added presumably if the information the Committee previously had a great deal about the way these activities were being conducted.

Now, it would seem to me, I find it a little -- maybe he shouldn't have been indicted on this count, but I find it little startling that one shouldn't ask the witness whether he was there at the scene of the activities he's being questioned about.

Justice William O. Douglas: I suppose an easier --

Mr. Cox: But even if -- even if one shouldn't, this was -- this conviction carried concurrent sentences and the -- to sustain it on any one count would of course sustain or require affirming the judgment below and that counts two and four are not I think conceivably open to the objection about residence.

The -- I've stressed already the degree of national interest in knowing about this program in its most basic industry and in the -- one of the handful and most important bill in its most basic industry.

I've also sought to develop that the pertinency of the questions to the sub -- that subject, the extent to which it was pointed out to the witness and the reason to believe that he could afford new information.

Now, there is one other answer to this argument about new information that I would like to submit to the Court.

It's more fundamental so it doesn't need to be ruled upon in this case.

We submit that whether information sought by a Congressional Committee is necessary or unnecessary or fruitless or useful or helpful or redundant is not a subject for a judicial determination once it is determined to be impertinent.

There's no doubt that the objective of the Committee must be legislation.

The information sought, as I just said, must be pertinent to that objective.

There must I assume for present purposes be some reason to believe that the witness has the pertinent information and he must be made aware of its pertinence.

The public importance of Congress' acquiring pertinent information on the subject under investigation must also justify the risk of damage to the individual liberties.

But once those points have been covered, I submit, the judicial function is exhausted.

Choosing among pertinent lines of inquiry deciding when the ground has been adequately covered, decide -- relying on testimony received or seeking new testimony that will corroborate or disprove the testimony already received are all parts of the legislative process.

No one can tell how helpful a logically material bit of information will be without studying and drawing inferences from the information you already have and ascertaining the other potential sources of information.

Obviously, the line that an investigation takes next requires some judgment as to what are the most likely forms of legislation and how will the Congress and the public respond from the legislative process to the information already adduced.

That I submit although as I say, I don't think our case rests on it, is a test for the law made and that the court should not undertake and substitute its judgment of theirs once the basic constitutional requirements that I had listed have been satisfied.

Now, I would like to turn to the information to the interest asserted by the petitioner.

And I suggest that we should examine it very carefully.

Let me make it plain that when I talk of this as an individual interest, that we fully recognize that there is a public interest in individual liberties not only because of the importance of the individual himself, but that is what the Government exist for.

But also because of the effect of the example on others and because the exercise of First Amendment freedoms and other civil liberties is of course important to the community as a whole.

Exactly stated, the in -- only interest that can be asserted by this petitioner is secrecy of association.

Indeed, it's fair to say that everything indicates that the -- his claim is really to a right of deception concerning his association.

Petitioner was not subpoenaed as I said earlier because of having a public or private utterance.

He was not subpoenaed because of any participation in an open assemblage.

The information in the possession of the Committee indicated that petitioner was recruited by the Communist Party to conceal his true beliefs and associations and then by false representations to insinuate himself in a bona fide worker organizations, and then to subvert them to his revolutionary purposes.

The interest he asserts is in not having those activities known to the public so that he and others may feel free to engage in them in the future.

I submit therefore, it is inaccurate to say that petitioner is simply invoking a right of freedom of speech or freedom of public assembly or association.

At best, his claim is to a right of privacy in associations.

That right has received and in my judgment should receive constitutional protection.

The point was decided in NAACP against Alabama, Bates and Little Rock, Shelton and Tucker and other cases.

There are two reasons however for concluding that the right to secrecy of association is not entitled to the same very high degree of protection which is acknowledge for freedom -- recognized for freedom of speech are open in public assembly.

One reason for a deference in the degree of constitutional protection is that the reasons for the special protection we incurred, the freedom of speech do not pertain to the right of privacy of association.

The other is that the asserted freedom to conceal one's association may be used to subvert the freedom of association of others.

Let me develop each point if I may very briefly.

First, we place a unique constitutional value upon freedom of speech because the public discussion is the only part -- that is not only the best half of the truth, but the indispensable condition of a democratic government.

The best corrective for error in thought and speech is more thought and more discussion.

We pitched our constitutional philosophy upon the belief that men who have the chance to hear all sides will reach the wisest and best decisions.

No one ever stated the point more eloquently than Mr. Justice Brandeis in his separate opinion in Whitney against California.

I would like to take time to read a lengthy passage which states the ideas I've tried to condense, time forbids but I would like to emphasize that he winds that passage up saying, “If there be time to expose through discussion the falsehood and fallacies to avert the evil by the processes of education, the remedy to be applied is more speech not enforced silence”.

Now, petitioner is unwilling to stake his doctrine on such intents of being unwilling to suppress -- to subject them to the free competition of ideas, to the marketplace of ideas, to have them discussed, known they didn't -- have them known and publicly discuss.

He's not in a position to claim the same degree of individual freedom as those who are asserting the right to speak openly and publicly.

Second, I would point out that secrecy or privacy of association is susceptible of abuses not open to speech or open public assemblage.

It can be used not only to protect one's own freedom of association but to destroy or subvert or mislead the associations of others.

There's no better example than the activities of the Communist colonizers described in the present record.

According to the testimony before the Committee, these highly educated young men embraced Communism, joined the party, took part in its activities.

This counsel says is a normal -- is an exercise of the normal freedom of belief, of speech and association.

But then by fraud and deceit, they were to gain jobs for workers, infiltrate the worker's organizations pretending to be bona fide trade unionists but in fact acting for a foreign power.

In this way, the asserted cloak of privacy would become a method of deceiving others in order to subvert or destroy their associations.

Now finally, I must emphasize the point made from the beginning.

The Committee was not investigating speech, thoughts, or political associations.

It was investigating conduct.

The violation of any privacy of beliefs or association would be incidental to that same central inquiry, the result indeed of the misuse of speech and association to further a conspiratorial end.

Judging the claims of petitioner's right and giving it its due public importance against the importance of the end being -- against the importance of the inquiry, the importance of full knowledge upon this very important subject of infiltration of our most basic industry, it seems clear to us that the judgment below was correct.

Now, I've thus far not dealt with two of the arguments that were presented by Mr. Rabinowitz.

One is the claim that the statute he says is unconstitutionally vague.

I must say first that it seems to me that any question about the vagueness of the rule -- of rule -- of the rule constituting the Un-American Activities Committee was clearly disposed of in (Inaudible) -- in Barenblatt.

As I read on page 122 after a long discussion, the opinion of the court says, “The rule cannot be said to be constitutionally infirmed on the score of vagueness”.

And then it goes on to discuss whether Congress could constitutionally confer this authority on the Committee.

Now, it doesn't seem to me to change the argument to say that we are looking at this through the rule of dealing with -- in behalf of Congress.

Second, dealing with the argument on its merits, the petitioner had no reason to doubt what it was that he was required to do.

He was directed to answer those questions.

And he knew that if he failed to answer the question, he in all probability would be charged of a crime.

This is not like a situation that one can argue that he doesn't know what his legal obligation is.

His legal obligation was specifically pointed out to it.

The argument here is that well, we challenged the authority of the Committee to require that.

Maybe it did require it or attempted to require it but it didn't have the legal authority.

It's now settled that it did had the legal authority.

Indeed that is conceded by petitioner and I would've supposed it was perfectly claimed that whatever be the exact limits of the Committee's authority, that there was no doubt about its authority to conduct this kind of investigation into this kind of activity and this by industry.

The other argument deals with the failure to receive Professor Emerson's testimony in answer to a general question what are the factual considerations and values that we should take into account in resolving the basic constitutional issue in this case.

It's enough to say that the difference between the petitioners and ourselves is not whether Professor Emerson's views should be taken into account, but how should that kind of material be brought to the attention of the court.

Should it be done by testimony under oath or should it be done in the normal manner by briefs or by the citation of such statements in law review article by the court's own study and understanding, by reference to public documents, and the like.

Its enough to say that this kind of question dealing with the basic conditions, the basic human values, if you will, and conditions in society that enter into the determination of a constitutional question have always in our constitutional system, have been decided by the courts, and the basis of such knowledge or -- and information as it may come to them in briefs or through their own reading and prior experience.

And that it is not something to be found on the testimony in a particular record with the findings of fact by the particular trial judge on that record and not taking into account anything else binding upon this Court.

Certainly, Professor Emerson's view should be taken into account.

They're in the record.

I hope the Court will read them.

They're an excellent illustration in my view of how easily and intelligent man could miss the whole point.

But all such arguments are important for the court to consider.

But they needn't come in through sworn testimony and cross-examination, so that we submit Mr. Chief Justice that there was no error below and that the judgment should be affirmed.

Chief Justice Earl Warren: Well General, just how would a defendant in a given case raise this balancing issue where Barenblatt says that the balancing had to be related to the particular circumstance shown?

Now, I suppose that means a particular case.

Now, how would the defendant raise that?

Mr. Cox: Well, I'd -- first, I would not understand the reference, a particular circumstance shown to refer to anything other than the inquiry that was being made in that case by Congress.

It's objective.

That of course can be shown by the resolution.

The kind of question asked.

That of course can be shown by the testimony or in most of these cases, the transcript of the testimony before the Committee.

And that particular circumstance means the sort of circumstance I've been arguing here.

Knowledge about those is derived on the part of the court, from what is submitted in the briefs.

I would think that it's from the general reading on the part of the court.

It is derived from a public documents of the same kind -- sort of information that comes to the attention of the court whether it decides a large number of legal question which are based on underlying appraisal of the conditions in the community.

Let me take an unconstitutional example which has been settled but at one time was litigable.

I have in mind the case of Glass against Ickes where the question was whether the Secretary of Interior should have an absolute privilege to make statements about people doing business before the Interior Department no matter how much it might injure that man's reputation.

Now, to decide whether to recognize such a privilege requires a judge to have a view about Government, about the importance of freedom of expression on the part of Government officials and of course, a view about the knowledge of the kind of harm that such statements may do to the one who is defamed.

But that kind of understanding about the impact in the community has never in the law I think been decided by calling witnesses to testify on the particular record.

I --

Justice Byron R. White: (Inaudible)

Mr. Cox: Well, I would think that was --

Justice Byron R. White: (Inaudible)

Mr. Cox: Well, I think that for our purposes, the only thing that needs to be determined is not whether as a matter of fact the Communist Party is dominated by a foreign power but whether con -- the Congress has sufficient foundation for believing that, to make this subject pertinent to inquire into.

The power would exist whether it is true as a fact or simply whether it was basis for inquiring it --

Justice Byron R. White: (Inaudible)

Mr. Cox: I wouldn't think that issue was opened in a court, no.

Justice Byron R. White: (Inaudible)

Mr. Cox: I take it that the court -- I take it that there must be some reasonable foundation for the congressional belief just as there are again the -- I am taking the example or field from this particular case because it might clarify our reasoning.

I suppose that if a state legislature would pass a statute that required every homeowner to cut down all his maple trees, that it wouldn't be opened to -- would normally be tried out in a courtroom whether maple trees like cedar trees harbored an insect which would just -- which would damage, if not destroy, an important crop like the apple crop.

That the question is whether the legislature had a reasonable basis for reaching such conclusion and that has been best proved, as Your Honor knows, best called to the attention of the court through materials like a Brandeis brief.

And it seems to me that it was quite proper for the district judge to take that position in this case.

I don't think the important question is really whether it comes in by testimony or not.

Let me make it clear, we are perfectly willing to accept Professor Emerson's statement as Professor Emerson's opinion and belief.

We'd -- I would stipulate that here now that we accept it as his opinion and belief and we will accept further that cross-examination wouldn't have shaken his opinion and belief.

The question is whether --

Chief Justice Earl Warren: They wouldn't do that below -- they wouldn't do that below though, would they?

Mr. Cox: I don't think they disputed that below.

I don't think it was ever made quite that explicit but I think that the whole conduct was consonant with that being their position.

The question --

Chief Justice Earl Warren: I thought you said it was -- took the position that it was irrelevant and wouldn't let them introduce it.

Mr. Cox: It was not that if -- if they took the position that it bar on a question to be decided by the court, and therefore and it was not properly put in by way of sworn testimony.

Now, I think really the critical question I am suggesting is not so much whether the court will accept the sworn testimony but whether the court is to be limited to findings concerning these ultimate values based on sworn opinion and testimony.

And that the critical question is whether this Court is going to be based -- limited by the opinions of those who saw and heard the witnesses as to which they believed and which they didn't believe.

And I submit that that would be totally at odds with our entire constitutional history as well as an exceedingly cumbersome and I think unwise process.

Justice Hugo L. Black: Wouldn't your argument imply -- I'm not saying it should be, expressing views about getting evidence on the constitutional questions overtime.

But wouldn't your argument imply equally to the position that's been taken recently in a number of courts.Like you said, it's not been found on by this Court that you can introduce witnesses to find out whether in a particular community, a matter is obscene in order to determine the constitutionality of the law?

What about that?

Mr. Cox: Well, I have asked -- Your Honor I have -- I would prefer not to take a position of that but I --

Justice Hugo L. Black: Well, I thought --

Mr. Cox: -- haven't studied it myself --

Justice Hugo L. Black: Yes.

Mr. Cox: And it is a question that's involved in cases before this Court.

Justice Hugo L. Black: But it --

Mr. Cox: I --

Justice Hugo L. Black: (Inaudible)

Mr. Cox: I'm sorry I haven't (Voice Overlap) --

Justice Hugo L. Black: I didn't know that was involved in a case here at the moment.

Mr. Cox: We have it from -- we haven't thought about it --

Justice Hugo L. Black: I thought about it --

Mr. Cox: -- in time.

Justice Hugo L. Black: I thought about it in connection with this argument.

I remember -- I recall arguing very vigorously against hearing evidence to determine whether the legislature had a right to decide a certain train practices per se.

It took several weeks to get evidence and determine --

Mr. Cox: What --

Justice Hugo L. Black: -- the constitutionality of an act on that basis.

Mr. Cox: I should have (Voice Overlap) --

Justice Hugo L. Black: I'm not saying that that would -- that would control this case.

Mr. Cox: I think if Your Honor compare with me, it'd be unwise for me to express something about which I have no intelligent thoughts at the moment in which it does all --

Justice Hugo L. Black: I just --

Mr. Cox: -- come before the court.

Justice Hugo L. Black: The reason I asked for your general argument was -- and I may say that it's -- I'm not going to -- indicated you to disagree with that general argument was that you should decide the constitutional questions on the basis of the Constitution rather than people's evidence about whether the thing was unconstitutional.

Mr. Cox: There is without directing myself to that, I should acknowledge that this is sometimes a question of degree.

I recalled that the first time I was ever in this courtroom dealt with the constitutionality of certain litig -- certain legislation pertaining to the bill.

And there, the case, the economic fact had been tried out with great detail before a Master.

Finally they were stipulated by a counsel and no doubt that gave the court a picture of the industry which would not otherwise been available.

But I don't think anybody argued that the ultimate judgment as to the weight of various interests involved, because that was an economic case was to be made by the Master finding -- making findings of fact.

The constitutional facts are facts which this Court must determine for itself from whatever sources seemed best to it.

And as I said before, we certainly would think that Professor Emerson's views -- he's a distinguished professor, should be taken into account.

We hope the opposing view as well his will.

Justice Byron R. White: (Inaudible)

Mr. Cox: I don't think that's a question to be tried out in the evidence in each particular constitutional case.

Justice Byron R. White: You don't think those practice (Inaudible)

Mr. Cox: No.

No, Your Honor.

I said I didn't think that they were appropriate to be tried out in the evidence in a particular case.

Justice Byron R. White: (Inaudible)

Mr. Cox: But here -- here we are -- here we are dealing with the propriety of congressional action and the facts in the first instance, the reason to make this inquiry in the first instance was up for Congress to determine.

Chief Justice Earl Warren: But one of (Voice Overlap) --

Mr. Cox: I add --

Chief Justice Earl Warren: -- we're deciding, aren't we determining here whether a man can be put to jail, put in jail in these circumstances.

And aren't we determining whether or not he's entitled to make a defense for himself?

Mr. Cox: Well, the -- we're determining in what manner his defense shall be made.

Of course he's entitled to make a defense for himself.

We're discussing whether those facts which go into deciding, whether requiring him to answer this question was constitutional are to be established on the basis of opinion testimony and only opinion testimony, I take it, which if one followed that, would require the court like he emphasized to follow the opinions on the value of free speech of the witnesses.

Justice Byron R. White: Only --

Mr. Cox: Now, I think that is not an appropriate way of deciding constitutional issues.

Justice Byron R. White: Do you think Emerson's testimony (Inaudible)

Mr. Cox: Well, all he did was read the newspapers.

He testified that this came from a file or clippings of magazine articles that he collected.

Justice Byron R. White: The district judge (Inaudible)

Mr. Cox: Well, I think that the -- I think there's two answers.

One, is that it is to a degree, the duty of this Court to keep abreast and social problems and condition, and of the facts that go into them equally of history and the like.

That's one reason that it's such an arduous job.

I think, two, the point I made earlier is highly relevant here that the question of fact, how many Communists are there is not a question to be tried out in this proceeding for contempt.

Justice Byron R. White: But it is (Voice Overlap) --

Mr. Cox: The question is whether --

Justice Byron R. White: -- rather a constitutional question.

Mr. Cox: The question that is relevant for constitutional purposes is whether Congress had before it sufficient information to justify its coming to the conclusion that this was a highly important subject for it to investigate.

And one ascertains what Congress had or might have had before it the same way one ascertains whether there is a justification for legislation fixing the price of milk or legislation requiring the cutting down of cedar trees or the leaving of coal pillars in a -- when a coal mine is dug in the (Inaudible) region, and the like.

These questions have never been done by exact testimony and I emphasize the court being limited to that exact testimony, sometimes the testimony may be helpful.

If it is helpful and not confining, then the thing to do with this case is to read it and take it into account.

Justice Byron R. White: In any event, do you think it involves (Inaudible)

Mr. Cox: That's correct.

Chief Justice Earl Warren: Mr. Rabinowitz.

Rebuttal of Victor Rabinowitz

Mr. Victor Rabinowitz: Thank you sir.

I trust I need not remind the court that we are dealing here with the application of a criminal statute and the right I take it that every person accused of a criminal statute has to present whatever facts there are in its favor.

And to have the determination made on the basis of the record that's presented in the court and not determine on whether this Court or any other court who has read newspapers or what newspaper they have read.

It doesn't seem to me that any intelligent system of justice can be operated on that basis and we never have up to this point.

I am somewhat entranced by the suggestions, somewhat belatedly made that the Government is now prepared to stipulate Professor Emerson's testimony, because this Professor Emerson's testimony is admitted as I understand the situation, this judgment of conviction should be set aside as contrary to the weight of the evidence since there's no evidence at all on the other side.

No one -- nobody put any evidence here about the extent of Communism in the United States, about how vital or not vital the steel industry was, or any of these other facts, and I would take it that where there is some evidence on one side and no evidence on the other, the court would have to rule on the basis of that record.

Of course this was not the position of the court below and I am sure of the -- and not the position of the Government below and I am sure that had the matter been -- had the evidence been admitted, there would've been cross-examination and I should think that there would have been not only cross-examination but perhaps rebuttal testimony because Professor Emerson's testimony, it seems to me, goes directly to this whole process of balancing.

And while it may not have been as effective as calling a hundred thousand or a hundred and eighty million witnesses and asking them whether they're members of the Communist Party, somewhat impractical, it seems to me the kind of occasion which opinion testimony is appropriate.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: Well, in the first place, I never said that Congress couldn't investigate.

Congress can investigate --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: I've -- I've never --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: I have never even suggested that Congress cannot conduct an investigation by interrogating witnesses because there are many witnesses, hundreds of them, perhaps thousands, who have come in and who have testified quite freely on this subject.

And while I think that the Committee is acting beyond its jurisdiction and so forth for the reasons that I've stated before, I don't know of any way of stopping a Committee from calling a witness who testifies voluntarily before him about his or her membership in the Communist Party as was of course true in this very hearing --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: -- where several witnesses did testify.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: Your Honor, I think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: I think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Victor Rabinowitz: I think that if I had to, I would be willing to go that far.

But I don't have to.

Justice Arthur J. Goldberg: But you have to argue.

Mr. Victor Rabinowitz: Because in this case and if there was one thing I learned from Mr. Justice Frankfurter is that is that I shouldn't try to prove more than I have to, to win my case.

In this case, in view of the extensive testimony that Congress have taken on this particular subject and in view of the trivial nature of the questions that were asked, then I'll come to that in just a moment.

And in view of the fact that it was cumulative testimony and it was corroborated in the view of the view of a very large elements on the other side of the balance, I say that Congress did not have the right to conduct this -- to ask these questions of Mr. Yellin.

And I think that same thing is probably true of the whole Gary investigation.

They had volunteer witnesses there who gave a great deal of information about this so-called colonization and I'll come to that in a just a moment.

Justice Hugo L. Black: Was there any indication that the Government wanted to pass a local bill reg -- regulating conditions that gave --

Mr. Victor Rabinowitz: Oh, no.

No suggestion whatsoever.

Justice Hugo L. Black: But it's supposed to be a general bill covering this subject all over the country?

Mr. Victor Rabinowitz: I suppose so.

I'm not sure that there was any bill that was really referred to -- the Committee always talks in terms of the Subversive Activities Control Act than the other bills that may be passed, that Congressman Walter for years has been introducing, and onto this bill which covers a wide variety of subjects and its on this bills that they Committee sometimes says that it's holding its hearing.

I would just like to raise one or two rather short points.

One goes to this executive session matter.

It is true that at rule -- at page 82 of the record, Mr. Walter set forth, I think in pretty complete form, the general rules that the Committee uses in determining whether as to here, to hold executive sessions, and I think that that is conclusive in my favor because the general rules and he says, there are very many exceptions or any exceptions he said is in may favor but even more telling if I may suggest, it is the testimony at Rule 70 because as Mr. Justice Douglas pointed out, the rule said Congressman Walter, the rule with respect to an executive session was not applicable but sentence didn't stop there although that's where the Solicitor General stopped reading it.

The next word is “because” and then Congressman Walter goes on to apply a completely different standard, different from the standard you --

Chief Justice Earl Warren: Where is that Mr. --

Mr. Victor Rabinowitz: It's on page 70, sir.

And it's the first question -- the first answer --

Chief Justice Earl Warren: Oh, yes.

Mr. Victor Rabinowitz: “The rule with respect to an executive session was not applicable because the investigator was an FBI agent and he'd done a pretty good investigating job”, which has nothing at all to do with Rule IV-A.

Mr. Solicitor General suggested that this was not a case of exposure for the sake of exposure.

Well frankly, if this was not -- if this is -- if the failure to call an executive session under these circumstances was not a perfect case of calling witness in public for no reason other than to give publicity to his testimony, I don't know what it is.

I would like to go to one (Voice Overlap) --

Justice Hugo L. Black: Did you argue that point?

Mr. Victor Rabinowitz: Pardon me?

Justice Hugo L. Black: Have you argued that point, that was exposure for exposure's sake (Voice Overlap) --

Mr. Victor Rabinowitz: Yes.

Justice Hugo L. Black: I understood you --

Mr. Victor Rabinowitz: I -- I've argued it in the brief.

I think the failure -- I don't remember exactly what page, but it certainly is in there.

I would like to go to this question as to whether this testimony as corroborated or accumulated or what have you.

Questions one and three were admittedly corroborative of testimony that the Committee had in its files.

And Mr. Tavenner said so on the stand.

He said, “Yes, we had sworn witnesses who testified that this man lived in Gary.

We have subpoenaed his employment records”.

As a matter of fact, his employment records I think were put in the record and we have sworn testimony that he was a member of a Communist Party in 1949.

And we knew all of that.

Justice Byron R. White: But they didn't know in full what -- they didn't know whether the sworn testimony was accurate?

Mr. Victor Rabinowitz: That's true.

They didn't know whether he still was, but they didn't ask him whether he still was.

That's not one of the counts in this case.

Justice Byron R. White: Well, they didn't know whether their sworn testimony -- the reason that they did that (Inaudible)

Mr. Victor Rabinowitz: I think it is probably -- well, this is true of all accumulated testimony or corroborated testimony, sir.

And I -- and I said, I'm not arguing that it wasn't relevant.

I am merely arguing that it weighs very little in the balance.

Justice Byron R. White: (Inaudible)

Mr. Victor Rabinowitz: Pardon me?

Oh, I don't know.

He said they had sworn testimony.

One of whom testified at the Gary hearing but I don't know how many.

Now, on the other question namely the extent of colonization in Gary, at page 151 of the record, there appears the report of the House Committee.

And I'm not going to read it.

It runs on some -- well, its too closely printed pages.

I'll just read a few words.

“Describing the tactical maneuvers of the Communist Party in its infiltration of labor unions, Mr. Lautner asserted that colonizers were sent to Gary, Indiana for the purpose of building a party in the steel industry.

He defined a colonized Communist as” -- and then he goes on to describe one.

“The witness told the Committee of classes conducted by J. Peters, a national functionary for the Communist Party for colonizing members of the Communist Party.”

And he goes on at very considerable length discussing the whole colonization program of the Communist Party in Gary and elsewhere.

Mr. Lautner testified immediately before Mr. Yellin.

The Committee goes on to discuss the testimony of Mr. LaFleur who also testified as to the colonization in the Communist Party and it ends up with this conclusion reached without the benefit of Mr. Yellin's testimony.

“The testimony disclosed the pattern of colonization in the steel industry by young men with excellent training and education who came into the area from New York City and elsewhere.

It is apparent that a hard core of Communist Party -- of the Communist Party is actively engaged in the rehabilitation of a Communist Party in the steel industry in Gary”.

So I submit the question two and four were just as cumulative as the others and weigh just as little in the balance, if we are to balance.

Chief Justice Earl Warren: Let's adjourn.

Featured:

Russell v. United States - Oral Argument

Tue, 25 Sep 2012 22:37:58 +0000

Case:

Russell v. United States

Media File:

8_19611207-argument

Related Transcript:

8_19611207-argument

Transcript:

Argument of Joseph A. Fanelli

Chief Justice Earl Warren: Number 8, Norton Anthony Russell versus Unites States.

Mr. Fanelli.

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

I appear on behalf of the petitioner, Mr. Russell.

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.

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