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I.

Initiation of Inquiry

II. Jurisdictional Challenge

III. Valid Legislative Purpose


a. Scope
b. Limitations

IV. Committees Conducting the Inquiry

V. Compulsory Process
a. Appearance of Witness
participation of resource persons
production of documents

VI. Committee
a. Between 2 houses of Congress (pde bang sabay? mahihinto ba ung isa pag
meron na?)
b. Between the committees
c. Pending Judicial Action
d. Pending Investigation by other Agencies

VII. Rights of Witnesses and Resource Persons


a. Right against self-incrimination
b. right privacy
c. right counsel
d. right to travel

VIII. Executive Session


When may they go? Who will decide?

IX. Grant of Immunity


RA 6981

X. Sanctions
a. Contempt
b. Detention
c. Arrest

XI. Executive Privilege (Will discuss next week)


--Appearance of Executive officials

See Constitution: Sec. 21 & 22


--gives authority to parliamentary committees to hear information

XII. Rules of Evidence

XIII. Committee Reports

XIV. Published Rules

XV. Judicial Intervention


(when)
See case of Judge Majaducon

XVI. Conduct of Counsel

Barren Black v. US 360 US 109


Kilbourn v. Thompson 279 US 363
McGrail v. Daugherty 273 US 135
US v. Icadi 130 Fed Sup. 38
US v. Orman 207 Fed Reporter
Sept 1953
US v Rumely 345 US 771
Simple v US 279 US 263
Thomas Queen v. US 349 US 155

(Mostly Jurisdictional Challenge?)


Barenblatt v. United States, 360 U.S. 109 (1959)

Barenblatt v. United States

No. 35

Argued November 18, 1958

Decided June 8, 1959

360 U.S. 109

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Summoned to testify before a Subcommittee of the House of Representatives


Committee on Un-American Activities, which was investigating alleged
Communist infiltration into the field of education, petitioner, formerly a graduate
student and teaching fellow at the University of Michigan, refused to answer
questions as to whether he was then or had ever been a member of the Communist
Party. He disclaimed reliance upon the privilege against self-incrimination, but
objected generally to the right of the Subcommittee to inquire into his "political"
and "religious" beliefs or any "other personal or private affairs" or "associational
activities" upon grounds set forth in a previously prepared memorandum, which
was based on the First, Ninth, and Tenth Amendments, the prohibition against bills
of attainder and the doctrine of separation of powers. For such refusal, he was
convicted of a violation of 2 U.S.C. 192, which makes it a misdemeanor for any
person summoned as a witness by either House of Congress or a committee thereof
to refuse to answer any question pertinent to the question under inquiry. He was
fined and sentenced to imprisonment for six months.

Held: Petitioner's conviction is sustained. Pp. 360 U. S. 111-134.

1. In the light of the Committee's history and the repeated extensions of its life, as
well as the successive appropriations by the House of Representatives for the
conduct of its activities, its legislative authority and that of the Subcommittee to
conduct the inquiry under consideration here is unassailable, and House Rule XI,
83d Congress, which defines the Committee's authority, cannot be said to be
constitutionally infirm on the score of vagueness. Watkins v. United States, 354 U.
S. 178, distinguished. Pp. 360 U. S. 116-123.

(a) Rule XI has a "persuasive gloss of legislative history" which shows beyond
doubt that, in pursuance of its legislative concerns in the domain of "national
security," the House of Representatives has clothed the Committee with pervasive
authority to investigate Communist activities in this country. Pp. 360 U. S. 117-
121.

Page 360 U. S. 110

(b) In the light of the legislative history, Rule XI cannot be construed so as to


exclude the field of education from the Committee's compulsory authority. Pp. 360
U. S. 121-123.

2. The record in this case refutes petitioner's contention that he was not adequately
apprised of the pertinency of the Subcommittee's questions to the subject matter of
the inquiry. Watkins v. United States, supra, distinguished. Pp. 360 U. S. 123-125.

3. On the record in this case, the balance between the individual and the
governmental interests here at stake must be struck in favor of the latter, and
therefore the provisions of the First Amendment were not transgressed by the
Subcommittee's inquiry into petitioner's past or present membership in the
Communist Party. Pp. 360 U. S. 125-134.

(a) Where First Amendment rights are asserted to bar governmental interrogation,
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. Pp.360
U. S. 126-127.

(b) The investigation here involved was related to a valid legislative purpose, since
Congress has wide power to legislate in the field of Communist activity in this
Country and to conduct appropriate investigations in aid thereof. Pp. 360 U. S.
127-129.

(c) Investigatory power in this domain is not to be denied Congress solely because
the field of education is involved, and the record in this case does not indicate any
attempt by the Committee to inquire into the content of academic lectures or
discussions, but only to investigate the extent to which the Communist Party had
succeeded in infiltrating into our educational institutions persons and groups
committed to furthering the Party's alleged objective of violent overthrow of the
Government. Sweezy v. New Hampshire, 354 U. S. 234, distinguished. Pp. 360 U.
S. 129-132.

(d) On the record in this case, it cannot be said that the true objective of the
Committee and of the Congress was purely "exposure," rather than furtherance of a
valid legislative purpose. Pp. 360 U. S. 132-133.

(e) The record is barren of other factors which, in themselves, might lead to the
conclusion that the individual interests at stake were not subordinate to those of the
Government. P. 360 U. S. 134.

102 U.S.App.D.C. 217, 252 F.2d 129, affirmed.

Page 360 U. S. 111

MR. JUSTICE HARLAN delivered the opinion of the Court.

Once more the Court is required to resolve the conflicting constitutional claims of
congressional power, and of an individual's right to resist its exercise. The
congressional power in question concerns the internal process of Congress in
moving within its legislative domain; it involves the utilization of its committees to
secure "testimony needed to enable it efficiently to exercise a legislative function
belonging to it under the Constitution." McGrain v. Daugherty, 273 U. S. 135, 273
U. S. 160. The power of inquiry has been employed by Congress throughout our
history, over the whole range of the national interests concerning which Congress
might legislate or decide upon due investigation not to legislate; it has similarly
been utilized in determining what to appropriate from the national purse, or
whether to appropriate. The scope of the power of inquiry, in short, is as
penetrating and far-reaching as the potential power to enact and appropriate under
the Constitution.

Broad as it is, the power is not, however, without limitations. Since Congress may
only investigate into those areas in which it may potentially legislate or
appropriate,

Page 360 U. S. 112

it cannot inquire into matters which are within the exclusive province of one of the
other branches of the Government. Lacking the judicial power given to the
Judiciary, it cannot inquire into matters that are exclusively the concern of the
Judiciary. Neither can it supplant the Executive in what exclusively belongs to the
Executive. And the Congress, in common with all branches of the Government,
must exercise its powers subject to the limitations placed by the Constitution on
governmental action, more particularly, in the context of this case, the relevant
limitations of the Bill of Rights.

The congressional power of inquiry, its range and scope, and an individual's duty in
relation to it, must be viewed in proper perspective. McGrain v. Daugherty,
supra; Landis, Constitutional Limitations on the Congressional Power of
Investigation, 40 Harv.L.Rev. 153, 214; Black, Inside a Senate Investigation, 172
Harpers Monthly 275 (February 1936). The power and the right of resistance to it
are to be judged in the concrete, not on the basis of abstractions. In the present
case, congressional efforts to learn the extent of a nationwide, indeed worldwide,
problem have brought one of its investigating committees into the field of
education. Of course, broadly viewed, inquiries cannot be made into the teaching
that is pursued in any of our educational institutions. When academic teaching --
freedom and its corollary, learning -- freedom, so essential to the wellbeing of the
Nation, are claimed, this Court will always be on the alert against intrusion by
Congress into this constitutionally protected domain. But this does not mean that
the Congress is precluded from interrogating a witness merely because he is a
teacher. An educational institution is not a constitutional sanctuary from inquiry
into matters that may otherwise be within the constitutional legislative domain
merely for the reason that inquiry is made of someone within its walls.

Page 360 U. S. 113

In the setting of this framework of constitutional history, practice, and legal


precedents, we turn to the particularities of this case.

We here review petitioner's conviction under 2 U.S.C. 192 [Footnote 1] for


contempt of Congress, arising from his refusal to answer certain questions put to
him by a Subcommittee of the House Committee on Un-American Activities
during the course of an inquiry concerning alleged Communist infiltration into the
field of education.

The case is before us for the second time. Petitioner's conviction was originally
affirmed in 1957 by a unanimous panel of the Court of Appeals, 100 U.S.App.D.C.
13, 240 F.2d 875. This Court granted certiorari, 354 U.S. 930, vacated the
Judgment of the Court of Appeals, and remanded the case to that court for further
consideration in light of Watkins v. United States,354 U. S. 178, which had
reversed a contempt of Congress conviction and which was decided after the Court
of Appeals' decision here had issued. Thereafter, the Court of Appeals, sitting en
banc, reaffirmed the conviction by a divided court. 102 U.S.App.D.C. 217, 252
F.2d 129. We again granted certiorari, 356 U.S. 929, to consider petitioner's
statutory and constitutional challenges to his conviction, and particularly his claim
that the Judgment below cannot stand under our decision in the Watkins case.

Pursuant to a subpoena, and accompanied by counsel, petitioner, on June 28, 1954,


appeared as a witness before

Page 360 U. S. 114

this congressional Subcommittee. After answering a few preliminary questions and


testifying that he had been a graduate student and teaching fellow at the University
of Michigan from 1947 to 1950 and an instructor in psychology at Vassar College
from 1950 to shortly before his appearance before the Subcommittee, petitioner
objected generally to the right of the Subcommittee to inquire into his "political"
and "religious" beliefs or any "other personal and private affairs" or "associational
activities," upon grounds set forth in a previously prepared memorandum which he
was allowed to file with the Subcommittee. [Footnote 2] Thereafter, petitioner
specifically declined to answer each of the following five questions:

"Are you now a member of the Communist Party? [Count One.]"

"Have you ever been a member of the Communist Party? [Count Two.]"

"Now, you have stated that you knew Francis Crowley. Did you know Francis
Crowley as a member of the Communist Party? [Count Three.]"

"Were you ever a member of the Haldane Club of the Communist Party while at
the University of Michigan? [ Count Four.]"

"Were you a member while a student of the University of Michigan Council of


Arts, Sciences, and Professions? [Count Five.]"

In each instance the grounds of refusal were those set forth in the prepared
statement. Petitioner expressly disclaimed reliance upon "the Fifth Amendment."
[Footnote 3]

Page 360 U. S. 115


Following receipt of the Subcommittee's report of these occurrences, the House
duly certified the matter to the District of Columbia United States Attorney for
contempt proceedings. An indictment in five Counts, each embracing one of
petitioner's several refusals to answer, ensued. With the consent of both sides, the
case was tried to the court without a jury, and, upon conviction under all Counts, a
general sentence of six months' imprisonment and a fine of $250 was imposed.

Since this sentence was less than the maximum punishment authorized by the
statute for conviction under any one Count, [Footnote 4] the judgment below must
be upheld if the conviction upon any of the Counts is sustainable. See Claassen v.
United States, 142 U. S. 140, 142 U. S. 147; Roviaro v. United States, 353 U. S.
53; Whitfield v. Ohio, 297 U. S. 431. As we conceive the ultimate issue in this case
to be whether petitioner could properly be convicted of contempt for refusing to
answer questions relating to his participation in or knowledge of alleged
Communist Party activities at educational institutions in this country, we find it
unnecessary to consider the validity of his conviction under the Third and Fifth
Counts, the only ones involving questions which on their face do not directly relate
to such participation or knowledge.

Petitioner's various contentions resolve themselves into three propositions: first,


the compelling of testimony by the Subcommittee was neither legislatively
authorized nor constitutionally permissible because of the vagueness of Rule XI of
the House of Representatives, Eighty-third Congress, the charter of authority of the
parent Committee. [Footnote 5] Second, petitioner was not adequately apprised of
the pertinency of the Subcommittee's questions to the

Page 360 U. S. 116

subject matter of the inquiry. Third, the questions petitioner refused to answer
infringed rights protected by the First Amendment.

SUBCOMMITTEE'S AUTHORITY TO COMPEL TESTIMONY

At the outset, it should be noted that Rule XI authorized this Subcommittee to


compel testimony within the framework of the investigative authority conferred on
the Un-American Activities Committee. [Footnote 6] Petitioner contends
that Watkins v. United States, supra, nevertheless held the grant of this power in all
circumstances ineffective because of the vagueness of Rule XI in delineating the
Committee jurisdiction to which its exercise was to be appurtenant. This view
of Watkins was accepted by two of the dissenting judges below. 102 U.S.App.D.C.
at 124, 252 F.2d at 136.
The Watkins case cannot properly be read as standing for such a proposition. A
principal contention in Watkins was that the refusals to answer were justified
because the requirement of 2 U.S.C. 192 that the questions asked be "pertinent to
the question under inquiry" had not been satisfied. 354 U.S. at 354 U. S. 208-209.
This Court reversed the conviction solely on that ground, holding that Watkins had
not been adequately apprised of the subject matter of the Subcommittee's
investigation or the pertinency

Page 360 U. S. 117

thereto of the questions he refused to answer. Id. at 354 U. S. 206-209, 354 U. S.


214-215, and see the concurring opinion in that case, id. at 354 U. S. 216. In so
deciding, the Court drew upon Rule XI only as one of the facets in the total mise
en scene in its search for the "question under inquiry" in that particular
investigation. Id. at 354 U. S. 209-215. The Court, in other words, was not dealing
with Rule XI at large, and indeed in effect stated that no such issue was before
it, id. at 354 U. S. 209. That the vagueness of Rule XI was not alone determinative
is also shown by the Court's further statement that, aside from the Rule,

"the remarks of the chairman or members of the committee, or even the nature of
the proceedings themselves, might sometimes make the topic [under inquiry]
clear."

Ibid. In short, while Watkins was critical of Rule XI, it did not involve the broad
and inflexible holding petitioner now attributes to it. [Footnote 7]

Petitioner also contends, independently of Watkins, that the vagueness of Rule XI


deprived the Subcommittee of the right to compel testimony in this investigation
into Communist activity. We cannot agree with this contention, which, in its
furthest reach, would mean that the House Un-American Activities Committee
under its existing authority has no right to compel testimony in any circumstances.
Granting the vagueness of the Rule, we may not read it in isolation from its long
history in the House of Representatives. Just as legislation is often given meaning
by the gloss of legislative reports, administrative interpretation, and long usage, so
the proper meaning of an authorization to a congressional committee is not to be
derived alone from its abstract terms unrelated to the definite content furnished
them by the course of congressional actions. The Rule comes to us with a

Page 360 U. S. 118


"persuasive gloss of legislative history," United States v. Witkovich, 353 U. S.
194, 353 U. S. 199, which shows beyond doubt that, in pursuance of its legislative
concerns in the domain of "national security," the House has clothed the Un-
American Activities Committee with pervasive authority to investigate Communist
activities in this country.

The essence of that history can be briefly stated. The Un-American Activities
Committee, originally known as the Dies Committee, was first established by the
House in 1938. [Footnote 8] The Committee was principally a consequence of
concern over the activities of the German-American Bund, whose members were
suspected of allegiance to Hitler Germany, and of the Communist Party, supposed
by many to be under the domination of the Soviet Union. [Footnote 9] From the
beginning, without interruption to the present time and with the undoubted
knowledge and approval of the House, the Committee has devoted a major part of
its energies to the investigation of Communist activities. [Footnote 10] More
particularly, in 1947, the Committee announced

Page 360 U. S. 119

a wide-range program in this field, [Footnote 11] pursuant to which, during the
years 1948 to 1952, it conducted diverse inquiries into such alleged Communist
activities as espionage; efforts to learn atom bomb secrets; infiltration into labor,
farmer, veteran, professional, youth, and motion picture groups, and, in addition,
held a number of hearings upon various legislative proposals to curb Communist
activities. [Footnote 12]

In the context of these unremitting pursuits, the House has steadily continued the
life of the Committee at the

Page 360 U. S. 120

commencement of each new Congress; [Footnote 13] it has never narrowed the
powers of the Committee, whose authority has remained throughout identical with
that contained in Rule XI, and it has continuingly supported the Committee's
activities with substantial appropriations. [Footnote 14] Beyond this, the
Committee was raised to the level of a standing committee of the House in 1945, it
having been but a special committee prior to that time. [Footnote 15]

In light of this long and illuminating history, it can hardly be seriously argued that
the investigation of Communist activities generally, and the attendant use of
Page 360 U. S. 121

compulsory process, was beyond the purview of the Committee's intended


authority under Rule XI.

We are urged, however, to construe Rule XI so as at least to exclude the field of


education from the Committee's compulsory authority. Two of the four dissenting
judges below relied entirely, the other two alternatively, on this ground. 102
U.S.App.D.C. at 224, 226, 252 F.2d at 136, 138. The contention is premised on the
course we took in United States v. Rumely, 345 U. S. 41, where in order to avoid
constitutional issues, we construed narrowly the authority of the congressional
committee there involved. We cannot follow that route here, for this is not a case
where Rule XI has to "speak for itself, since Congress put no gloss upon it at the
time of its passage," nor one where the subsequent history of the Rule has the
"infirmity of post litem motam, self-serving declarations." See United States v.
Rumely, supra, at 345 U. S. 44-45, 48.

To the contrary, the legislative gloss on Rule XI is again compelling. Not only is
there no indication that the House ever viewed the field of education as being
outside the Committee's authority under Rule XI, but the legislative history
affirmatively evinces House approval of this phase of the Committee's work.
During the first year of its activities, 1938, the Committee heard testimony on
alleged Communist activities at Brooklyn College, N.Y. [Footnote 16] The
following year, it conducted similar hearings relating to the American Student
Union and the Teachers Union. [Footnote 17] The field of "Communist influences
in education" was one of the items contained in the Committee's

Page 360 U. S. 122

1947 program. [Footnote 18] Other investigations including education took place
in 1952 and 1953. [Footnote 19] And, in 1953, after the Committee had instituted
the investigation involved in this case, the desirability of investigating
Communism in education was specifically discussed during consideration of its
appropriation for that year, which, after controversial debate, was approved.
[Footnote 20]

In this framework of the Committee's history, we must conclude that its legislative
authority to conduct the inquiry presently under consideration is unassailable, and
that, independently of whatever bearing the broad scope of Rule XI may have on
the issue of "pertinency" in a given investigation into Communist activities, as
in Watkins, the Rule cannot be said to be constitutionally
Page 360 U. S. 123

infirm on the score of vagueness. The constitutional permissibility of that authority


otherwise is a matter to be discussed later.

PERTINENCY CLAIM

Undeniably, a conviction for contempt under 2 U.S.C. 192 cannot stand unless
the questions asked are pertinent to the subject matter of the investigation. Watkins
v. United States, supra, at 354 U. S. 214-215. But the factors which led us to rest
decision on this ground in Watkins were very different from those involved here.

In Watkins, the petitioner had made specific objection to the Subcommittee's


questions on the ground of pertinency; the question under inquiry had not been
disclosed in any illuminating manner, and the questions asked the petitioner were
not only amorphous on their face, but, in some instances, clearly foreign to the
alleged subject matter of the investigation -- "Communism in labor." Id. at 354 U.
S. 185, 354 U. S. 209-215.

In contrast, petitioner in the case before us raised no objections on the ground of


pertinency at the time any of the questions were put to him. It is true that the
memorandum which petitioner brought with him to the Subcommittee hearing
contained the statement,

"to ask me whether I am or have been a member of the Communist Party may have
dire consequences. I might wish to . . . challenge the pertinency of the question to
the investigation,"

and, at another point, quoted from this Court's opinion in Jones v. Securities &
Exchange Comm'n, 298 U. S. 1, language relating to a witness' right to be informed
of the pertinency of questions asked him by an administrative agency. [Footnote
21] These statements cannot,

Page 360 U. S. 124

however, be accepted as the equivalent of a pertinency objection. At best, they


constituted but a contemplated objection to questions still unasked, and, buried as
they were in the context of petitioner's general challenge to the power of the
Subcommittee, they can hardly be considered adequate, within the meaning of
what was said in Watkins, supra, at 354 U. S. 214-215, to trigger what would have
been the Subcommittee's reciprocal obligation had it been faced with a pertinency
objection.

We need not, however, rest decision on petitioner's failure to object on this score,
for here "pertinency" was made to appear "with undisputable clarity." Id. at 354 U.
S. 214. First of all, it goes without saying that the scope of the Committee's
authority was for the House, not a witness, to determine, subject to the ultimate
reviewing responsibility of this Court. What we deal with here is whether
petitioner was sufficiently apprised of "the topic under inquiry" thus authorized
"and the connective reasoning whereby the precise questions asked relate [d] to
it." Id. at 354 U. S. 215. In light of his prepared memorandum of constitutional
objections, there can be no doubt that this petitioner was well aware of the
Subcommittee's authority and purpose to question him as it did. See p. 360 U. S.
123, supra. In addition, the other sources of this information which we recognized
in Watkins, supra, at 354 U. S. 209-215, leave no room for a "pertinency" objection
on this record. The subject matter of the inquiry had been identified at the
commencement of the investigation as Communist infiltration into the field of
education. [Footnote 22] Just prior to petitioner's appearance before the
Subcommittee, the scope of the day's hearings had been announced as,

"in the main, communism in education and the experiences and background in the
party by Francis X. T. Crowley.

Page 360 U. S. 125

It will deal with activities in Michigan, Boston, and, in some small degree, New
York."

Petitioner had heard the Subcommittee interrogate the witness Crowley along the
same lines as he, petitioner, was evidently to be questioned, and had listened to
Crowley's testimony identifying him as a former member of an alleged Communist
student organization at the University of Michigan while they both were in
attendance there. [Footnote 23] Further, petitioner had stood mute in the face of the
Chairman's statement as to why he had been called as a witness by the
Subcommittee. [Footnote 24] And, lastly, unlike Watkins, id. at 354 U. S. 182-185,
petitioner refused to answer questions as to his own Communist Party affiliations,
whose pertinency, of course, was clear beyond doubt.

Petitioner's contentions on this aspect of the case cannot be sustained.

CONSTITUTIONAL CONTENTIONS
Our function at this point is purely one of constitutional adjudication in the
particular case and upon the particular record before us, not to pass judgment upon
the general wisdom or efficacy of the activities of this Committee in a vexing and
complicated field.

Page 360 U. S. 126

The precise constitutional issue confronting us is whether the Subcommittee's


inquiry into petitioner's past or present membership in the Communist Party
[Footnote 25] transgressed the provisions of the First Amendment, [Footnote 26]
which, of course, reach and limit congressional investigations. Watkins,
supra, at 354 U. S. 197.

The Court's past cases establish sure guides to decision. Undeniably, the First
Amendment in some circumstances protects an individual from being compelled to
disclose his associational relationships. However, the protections of the First
Amendment, unlike a proper claim of the privilege against self-incrimination under
the Fifth Amendment, do not afford a witness the right to resist inquiry in all
circumstances. Where First Amendment rights are asserted to bar governmental
interrogation, 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. These principles were recognized in the Watkins case, where, in speaking
of the First Amendment in relation to congressional inquiries, we said (at p. 354 U.
S. 198):

"It is manifest that, despite the adverse effects which follow upon compelled
disclosure of private matters, not all such inquiries are barred. . . . The critical
element is the existence of,

Page 360 U. S. 127

and the weight to be ascribed to, the interest of the Congress in demanding
disclosures from an unwilling witness."

See also American Communications Assn. v. Douds, 339 U. S. 382, 339 U. S. 399-
400; United States v. Rumely, supra, at 345 U. S. 43-44. More recently, in National
Association for the Advancement of Colored People v. Alabama, 357 U. S.
449, 357 U. S. 463-466, we applied the same principles in judging state action
claimed to infringe rights of association assured by the Due Process Clause of the
Fourteenth Amendment, and stated that the "subordinating interest of the State
must be compelling'" in order to overcome the individual constitutional rights at
stake. See Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 255, 354 U. S.
265 (concurring opinion). In light of these principles, we now consider petitioner's
First Amendment claims.

The first question is whether this investigation was related to a valid legislative
purpose, for Congress may not constitutionally require an individual to disclose his
political relationships or other private affairs except in relation to such a
purpose. See Watkins v. United States, supra, at 354 U. S. 198.

That Congress has wide power to legislate in the field of Communist activity in
this Country, and to conduct appropriate investigations in aid thereof, is hardly
debatable. The existence of such power has never been questioned by this Court,
and it is sufficient to say, without particularization, that Congress has enacted or
considered in this field a wide range of legislative measures, not a few of which
have stemmed from recommendations of the very Committee whose actions have
been drawn in question here. [Footnote 27] In the last analysis, this power rests on

Page 360 U. S. 128

the right of self-preservation, "the ultimate value of any society," Dennis v. United
States, 341 U. S. 494, 341 U. S. 509. Justification for its exercise, in turn, rests on
the long and widely accepted view that the tenets of the Communist Party include
the ultimate overthrow of the Government of the United States by force and
violence, a view which has been given formal expression by the Congress.
[Footnote 28] On these premises, this Court, in its constitutional adjudications, has
consistently refused to view the Communist Party as an ordinary political party,
and has upheld federal legislation aimed at the Communist problem which, in a
different context, would certainly have raised constitutional issues of the gravest
character. See, e.g., Carlson v. Landon, 342 U. S. 524; Galvan v. Press, 347 U. S.
522. On the same premises, this Court has upheld under the Fourteenth
Amendment state legislation requiring those occupying or seeking public office to
disclaim knowing membership in any organization advocating overthrow of the
Government by force and violence, which legislation none can avoid seeing was
aimed at membership in the Communist Party. See Gerende v. Board of
Supervisors,341 U. S. 56; Garner v. Board of Public Works, 341 U. S. 716. See
also Beilan v. Board of Public Education, 357 U. S. 399; Lerner v. Casey, 357 U. S.
468; Adler v. Board of Education, 342 U. S. 485. Similarly, in other areas, this
Court has recognized the close nexus between the Communist Party and violent
overthrow of government. See Dennis v. United States, supra; American
Communications Assn. v. Douds, supra. To suggest that, because the Communist
Party may also sponsor peaceable political reforms, the constitutional issues before
us should now be judged as if that Party were just an ordinary political

Page 360 U. S. 129

party from the standpoint of national security, is to ask this Court to blind itself to
world affairs which have determined the whole course of our national policy since
the close of World War II, affairs to which Judge Learned Hand gave vivid
expression in his opinion in United States v. Dennis, 183 F.2d 201, 213, and to the
vast burdens which these conditions have entailed for the entire Nation.

We think that investigatory power in this domain is not to be denied Congress


solely because the field of education is involved. Nothing in the prevailing
opinions in Sweezy v. New Hampshire, supra, stands for a contrary view. The vice
existing there was that the questioning of Sweezy, who had not been shown ever to
have been connected with the Communist Party, as to the contents of a lecture he
had given at the University of New Hampshire, and as to his connections with the
Progressive Party, then on the ballot as a normal political party in some 26 States,
was too far removed from the premises on which the constitutionality of the State's
investigation had to depend to withstand attack under the Fourteenth
Amendment. See the concurring opinion in Sweezy, supra, at 354 U. S. 261, 354 U.
S. 265, 354 U. S. 266, n. 3. This is a very different thing from inquiring into the
extent to which the Communist Party has succeeded in infiltrating into our
universities, or elsewhere, persons and groups committed to furthering the
objective of overthrow. See Note 20 supra.Indeed, we do not understand petitioner
here to suggest that Congress in no circumstances may inquire into Communist
activity in the field of education. [Footnote 29]

Page 360 U. S. 130

Rather, his position is, in effect, that this particular investigation was aimed not at
the revolutionary aspects, but at the theoretical classroom discussion of
communism. In our opinion, this position rests on a too constricted view of the
nature of the investigatory process, and is not supported by a fair assessment of the
record before us. An investigation of advocacy of or preparation for overthrow
certainly embraces the right to identify a witness as a member of the Communist
Party, see Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, and to
inquire into the various manifestations of the Party's tenets. The strict requirements
of a prosecution under the Smith Act, [Footnote 30] see Dennis v. United States,
supra, and Yates v. United States, 354 U. S. 298, are not the measure of the
permissible scope of a congressional investigation into "overthrow," for, of
necessity, the investigatory process must proceed step by step. Nor can it fairly be
concluded that this investigation was directed at controlling what is being taught at
our universities, rather than at overthrow. The statement of the Subcommittee
Chairman at the opening of the investigation evinces no such intention, [Footnote
31] and, so far as this record reveals

Page 360 U. S. 131

nothing thereafter transpired which would justify our holding that the thrust of the
investigation later changed. The record discloses considerable testimony
concerning the foreign domination and revolutionary

Page 360 U. S. 132

purposes and efforts of the Communist Party. [Footnote 32] That there was also
testimony on the abstract philosophical level does not detract from the dominant
theme of this investigation -- Communist infiltration furthering the alleged ultimate
purpose of overthrow. And certainly the conclusion would not be justified that the
questioning of petitioner would have exceeded permissible bounds had he not shut
off the Subcommittee at the threshold.

Nor can we accept the further contention that this investigation should not be
deemed to have been in furtherance of a legislative purpose because the true
objective of the Committee and of the Congress was purely "exposure." So long as
Congress acts in pursuance of its constitutional power, the Judiciary lacks authority
to intervene on the basis of the motives which spurred the exercise of that
power. Arizona v. California, 283 U. S. 423, 283 U. S. 455, and cases there cited.
"It is, of course, true," as was said in McCray v. United States, 195 U. S. 27, 195 U.
S. 55,

"that, if there be no authority in the judiciary to restrain a lawful exercise of power


by another department of the government, where a wrong motive or purpose has
impelled to the exertion of the power, that abuses of a power conferred may be
temporarily effectual. The

Page 360 U. S. 133

remedy for this, however, lies, not in the abuse by the judicial authority of its
functions, but in the people, upon whom, after all, under our institutions, reliance
must be placed for the correction of abuses committed in the exercise of a lawful
power."

These principles, of course, apply as well to committee investigations into the need
for legislation as to the enactments which such investigations may produce. Cf.
Tenney v. Brandhove, 341 U. S. 367, 341 U. S. 377-378. Thus, in stating in
the Watkins case, p. 354 U. S. 200, that "there is no congressional power to expose
for the sake of exposure," we at the same time declined to inquire into the "motives
of committee members," and recognized that their

"motives alone would not vitiate an investigation which had been instituted by a
House of Congress if that assembly's legislative purpose is being served."

Having scrutinized this record, we cannot say that the unanimous panel of the
Court of Appeals which first considered this case was wrong in concluding that
"the primary purposes of the inquiry were in aid of legislative processes." 240 F.2d
at 881. [Footnote 33] Certainly this is not a case like Kilbourn v. Thompson, 103 U.
S. 168, 103 U. S. 192, where

"the House of Representatives not only exceeded the limit of its own authority, but
assumed a power which could only be properly exercised by another branch of the
government, because it was in its nature clearly judicial."

See McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 171. The constitutional


legislative power of Congress in this instance is beyond question.

Page 360 U. S. 134

Finally, the record is barren of other factors which, in themselves, might sometimes
lead to the conclusion that the individual interests at stake were not subordinate to
those of the state. There is no indication in this record that the Subcommittee was
attempting to pillory witnesses. Nor did petitioner's appearance as a witness follow
from indiscriminate dragnet procedures, lacking in probable cause for belief that he
possessed information which might be helpful to the Subcommittee. [Footnote 34]
And the relevancy of the questions put to him by the Subcommittee is not open to
doubt.

We conclude that the balance between the individual and the governmental
interests here at stake must be struck in favor of the latter, and that, therefore, the
provisions of the First Amendment have not been offended.
We hold that petitioner's conviction for contempt of Congress discloses no
infirmity, and that the judgment of the Court of Appeals must be

Affirmed.

[Footnote 1]

"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 either House, or any joint committee established by a joint or
concurrent resolution of the two Houses of Congress, or any committee of either
House of Congress, willfully makes default, or who, having appeared, refuses to
answer any question pertinent to the question under inquiry, shall be deemed guilty
of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100
and imprisonment in a common jail for not less than one month nor more than
twelve months."

[Footnote 2]

In the words of the panel of the Court of Appeals which first heard the case, this
memorandum

"can best be described as a lengthy legal brief attacking the jurisdiction of the
committee to ask appellant any questions or to conduct any inquiry at all, based on
the First, Ninth and Tenth Amendments, the prohibition against bills of attainder,
and the doctrine of separation of powers."

100 U.S.App.D.C. at 17, n. 4, 240 F.2d at 879, n. 4.

[Footnote 3]

We take this to mean the privilege against self-incrimination.

[Footnote 4]

See Note 1 supra.

[Footnote 5]
H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24. The Committee's charter
appears as paragraph 17(b) of Rule XI. References to the Rule throughout this
opinion are intended to signify that paragraph.

[Footnote 6]

"The Committee on Un-American Activities, as a whole or by subcommittee, is


authorized to make from time to time investigations of (1) the extent, character,
and objects of un-American propaganda activities in the United States, (2) the
diffusion within the United States of subversive and un-American propaganda that
is instigated from foreign countries or of a domestic origin and attacks the principle
of the form of government as guaranteed by our Constitution, and (3) all other
questions in relation thereto that would aid Congress in any necessary remedial
legislation."

H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24. The Rule remains current
in the same form. H.Res. 7, 86th Cong., 1st Sess., Cong.Rec. Jan. 7, 1959, p. 13.

[Footnote 7]

Had Watkins reached to the extent now claimed by petitioner, a reversal of the
judgment of the Court of Appeals, not a remand for further consideration, would
have been required when this case first came to us.

[Footnote 8]

H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec. 7568, 7586.

[Footnote 9]

See debate on the original authorizing resolution, 75th Cong., 3d Sess., 83


Cong.Rec. 7567, 7572-7573, 7577, 7583-7586.

[Footnote 10]

H.R.Rep. No. 2, 76th Cong., 1st Sess.; H.R.Rep. No. 1476, 76th Cong., 3d Sess.;
H.R.Rep. No. 1, 77th Cong., 1st Sess.; H.R.Rep. No. 2277, 77th Cong., 2d Sess.;
H.R.Rep. No. 2748, 77th Cong., 2d Sess.; H.R.Rep. No. 2233, 79th Cong., 2d
Sess.; H.R.Rep. No. 2742, 79th Cong., 2d Sess.; Report of the Committee on Un-
American Activities to the United States House of Representatives, 80th Cong., 2d
Sess., December 31, 1948 (Committee Print); H.R.Rep. No.1950, 81st Cong., 2d
Sess.; H.R. Rep No. 3249, 81st Cong., 2d Sess.; H.R.Rep. No. 2431, 82d Cong., 2d
Sess.; H.R.Rep. No. 2516, 82d Cong., 2d Sess.; H.R.Rep. No. 1192, 83d Cong., 2d
Sess.; H.R.Rep. No. 57, 84th Cong., 1st Sess.; H.R.Rep. No. 1648, 84th Cong., 2d
Sess.; H.R.Rep. No. 53, 85th Cong., 1st Sess.; H.R.Rep. No. 1360, 85th Cong., 2d
Sess.

[Footnote 11]

The scope of the program was as follows:

"1. To expose and ferret out the Communists and Communist sympathizers in the
Federal Government."

"2. To spotlight the spectacle of having outright Communists controlling and


dominating some of the most vital unions in American labor."

"3. To institute a counter-educational program against the subversive propaganda


which has been hurled at the American people."

"4. Investigation of those groups and movements which are trying to dissipate our
atomic bomb knowledge for the benefit of a foreign power."

"5. Investigation of Communist influences in Hollywood."

"6. Investigation of Communist influences in education."

"7. Organization of the research staff so as to furnish reference service to Members


of Congress and to keep them currently informed on all subjects relating to
subversive and un-American activities in the United States."

"8. Continued accumulation of files and records to be placed at the disposal of the
investigative units of the Government and armed services."

Report of the Committee on Un-American Activities to the United States House of


Representatives, 80th Cong., 2d Sess., Dec. 31, 1948, 2-3 (Committee Print).

[Footnote 12]

Report of the Committee on Un-American Activities to the United States House of


Representatives, 80th Cong., 2d Sess., December 31, 1948, 15-21 (Committee
Print); H.R.Rep. No.1950, 81st Cong., 2d Sess. 1-10; H.R.Rep. No. 3249, 81st
Cong., 2d Sess. 5-6, 27-29; H.R.Rep. No. 2431, 82d Cong., 2d Sess. 6-9; H.R.Rep.
No. 2516, 82d Cong., 2d Sess. 7-67, 69-73.

[Footnote 13]

H.Res. 26, 76th Cong., 1st Sess., 84 Cong.Rec. 1098, 1128; H.Res. 321, 76th
Cong., 3d Sess., 86 Cong.Rec. 532, 605; H.Res. 90, 77th Cong., 1st Sess., 87
Cong.Rec. 886, 899; H.Res. 420, 77th Cong., 2d Sess., 88 Cong.Rec. 2282, 2297;
H.Res. 65, 78th Cong., 1st Sess., 89 Cong.Rec. 795, 810. See Note 15 infra.

[Footnote 14]

See, e.g., H.Res. 510, 75th Cong., 3d Sess., 83 Cong.Rec. 8637, 8638 (1938);
H.Res. 91, 77th Cong., 1st Sess., 87 Cong.Rec. 899 (1941); H.Res. 415, 78th
Cong., 2d Sess., 90 Cong.Rec. 763 (1944); H.Res. 77, 80th Cong., 1st Sess., 93
Cong.Rec. 699, 700 (1947); H.Res. 152, 80th Cong., 1st Sess., 93 Cong.Rec. 3074
(1947); H.Res. 482, 81st Cong., 2d Sess., 96 Cong.Rec. 3941, 3944 (1950); H.Res.
119, 83d Cong., 1st Sess., 99 Cong.Rec. 1358-1359, 1361-1362 (1953); H.Res.
352, 84th Cong., 2d Sess., 102 Cong.Rec. 1585, 1718-1719 (1956); H.Res. 137,
86th Cong., 1st Sess., Cong.Rec. Jan. 29, 1959, p. 1286.

[Footnote 15]

H.Res. 5, 79th Cong., 1st Sess., 91 Cong.Rec. 10, 15. In 1946, the Committee's
charter was embodied in the Legislative Reorganization Act of 1946, 60 Stat. 812,
828. Since then, the House has continued the life of the Committee by making the
charter provisions of the Act part of the House Rules for each new Congress.
H.Res. 5, 80th Cong., 1st Sess., 93 Cong.Rec. 38; H.Res. 5, 81st Cong., 1st Sess.,
95 Cong.Rec. 10, 11; H.Res. 7, 82d Cong., 1st Sess., 97 Cong.Rec. 9, 17, 19;
H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24; H.Res. 5, 84th Cong., 1st
Sess., 101 Cong.Rec. 11; H.Res. 5, 85th Cong., 1st Sess., 103 Cong.Rec. 47;
H.Res. 7, 86th Cong., 1st Sess., Cong.Rec. Jan. 7, 1959, p. 13.

[Footnote 16]

Hearings before House Special Committee on Un-American Activities on H.Res.


282, 75th Cong., 3d Sess. 943-973.

[Footnote 17]
Hearings before House Special Committee on Un-American Activities on H.Res.
282, 76th Cong., 1st Sess. 6827-6911.

[Footnote 18]

See Note 11 supra.

[Footnote 19]

Defense area hearings at Detroit in 1952 involved inquiries into Communist


activities among the students and teachers in Michigan schools and universities.
H.R.Rep. No. 2516, 82d Cong., 2d Sess. 10. Similar investigations were conducted
by the Committee the same year in the Chicago defense area. Id. at 28. In 1953, the
Committee investigated alleged Communist infiltration into the public school
systems in Philadelphia and New York, H.R.Rep. No. 1192, 83d Cong., 2d Sess. 2,
4.

[Footnote 20]

In the course of that debate, a member of the Un-American Activities Committee,


Representative Jackson, commented:

"So far as education is concerned, if the American educators, and, if the gentlemen
who are objecting to the investigation of communism and Communists in
education will recognize a valid distinction, I want to point out this is not a
blunderbuss approach to the problem of communism in education. We are not
interested in textbooks. We are not interested in the classroom operations of the
universities. We are interested instead in finding out who the Communists are and
what they are doing to further the Communist conspiracy. I may say in that
connection that we have sworn testimony identifying individuals presently on the
campuses of this country, men who have been identified under oath as one-time
members of the Communist Party. Is there any Member of this body who would
say we should not investigate this situation?"

83d Cong., 1st Sess., 99 Cong.Rec. 1360.

[Footnote 21]

"The citizen, when interrogated about his private affairs, has a right before
answering to know why the inquiry is made, and, if the purpose disclosed is not a
legitimate one, he may not be compelled to answer."
298 U.S. at 298 U. S. 26.

[Footnote 22]

Excerpts from the Chairman's statement at the opening of the investigation on


February 25, 1953, as to the nature of this inquiry are set forth in Note 31 infra.

[Footnote 23]

Crowley immediately preceded petitioner on the witness stand. It appears to be


undisputed that petitioner was in the hearing room at the time this statement was
made and during Crowley's testimony. In his own examination, petitioner
acknowledged knowing Crowley.

[Footnote 24]

The Chairman stated at the hearing, just before petitioner was excused,

"that the evidence or information contained in the files of this committee, some of
them in the nature of evidence, shows clearly that the witness has information
about Communist activities in the United States of America, particularly while he
attended the University of Michigan."

"That information which the witness has would be very valuable to this committee
and its work."

[Footnote 25]

Because the sustaining of petitioner's conviction on any one of the five Counts of
the indictment suffices for affirmance of the judgment under review, we state the
constitutional issue only in terms of petitioner's refusals to answer the questions
involved in Counts One and Two in order to sharpen discussion. However, we
consider his refusal to answer the question embraced in Count Four would require
the same constitutional result. As to Counts Three and Five, see p. 360 U. S.
115, supra.

[Footnote 26]

"Congress shall make no law respecting an establishment of religion, or prohibiting


the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances ."

[Footnote 27]

See Legislative Recommendations by House Committee on Un-American


Activities, Subsequent Action Taken by Congress or Executive Agencies (A
Research Study by Legislative Reference Service of the Library of Congress),
Committee on Un-American Activities, House of Representatives, 85th Cong., 2d
Sess., June 1958.

[Footnote 28]

See Subversive Activities Control Act of 1950, Title I of the Internal Security Act
of 1950, 2, 64 Stat. 987-989. See also Carlson v. Landon, 342 U. S. 524, 342 U.
S. 535, n. 21.

[Footnote 29]

The amicus brief of the American Association of University Professors states at


page 24:

"The claims of academic freedom cannot be asserted unqualifiedly. The social


interest it embodies is but one of a larger set within which the interest in national
self-preservation and in enlightened and well informed law-making also
prominently appear. When two major interests collide, as they do in the present
case, neither the one nor the other can claim a priori supremacy. But it is in the
nature of our system of laws that there must be demonstrable justification for an
action by the Government which endangers or denies a freedom guaranteed by the
Constitution."

[Footnote 30]

54 Stat. 670, 18 U.S.C. 2385.

[Footnote 31]

The following are excerpts from that statement:

". . . In opening this hearing, it is well to make clear to you and others just what the
nature of this investigation is."
"From time to time, the committee has investigated Communists and Communist
activities within the entertainment, newspaper, and labor fields, and also within the
professions and the Government. In no instance has the work of the committee
taken on the character of an investigation of entertainment organizations,
newspapers, labor unions, the professions, or the Government, as such, and it is not
now the purpose of this committee to investigate education or educational
institutions, as such. . . ."

"* * * *"

"The purpose of the committee in investigating Communists and Communist


activities within the field of education is no greater and no less than its purpose in
investigating Communists and Communist activities within the field of labor or
any other field."

"The committee is charged by the Congress with the responsibility of investigating


the extent, character, and objects of un-American propaganda activities in the
United States, the diffusion within the United States of subversive and un-
American propaganda that is instigated from foreign countries or of a domestic
origin and attacks the principle of the form of government as guaranteed by our
Constitution, and all other questions in relation thereto that would aid Congress in
any necessary remedial legislation."

"It has been fully established in testimony before congressional committees and
before the courts of our land that the Communist Party of the United States is part
of an international conspiracy which is being used as a tool or weapon by a foreign
power to promote its own foreign policy and which has for its object the overthrow
of the governments of all non-Communist countries, resorting to the use of force
and violence, if necessary. . . . Communism and Communist activities cannot be
investigated in a vacuum. The investigation must, of necessity, relate to
individuals, and, therefore, this morning, the committee is calling you [one Davis]
as a person known by this committee to have been at one time a member of the
Communist Party."

"* * * *"

"The committee is equally concerned with the opportunities that the Communist
Party has to wield its influence upon members of the teaching profession and
students through Communists who are members of the teaching profession.
Therefore, the objective of this investigation is to ascertain the character, extent
and objects of Communist Party activities when such activities are carried on by
members of the teaching profession who are subject to the directives and discipline
of the Communist Party."

The full statement is printed as the Appendix to the original Court of Appeals
opinion, 100 U.S.App.D.C. 22-24, 240 F.2d 884-886.

[Footnote 32]

Thus, early in the investigation, one of the witnesses, Hicks, testified in response to
a question as to "the general purpose of the Communist Party in endeavoring to
organize a cell or unit among the teaching profession" at the various universities
that, contrary to his original view:

". . . it is very obvious to me that the popular front [Communist protection of


democracy against Fascism] was simply a dodge that happened in those particular
years to serve the foreign policy of the Soviet Union; so it seems to me that the
party, in organizing branches in the colleges, had two purposes. One was to carry
out the existing line which they wanted to make a show of advancing, and then, of
course, the other was to try to have a corps of disciplined revolutionaries whom
they could use for other purposes when the time came."

[Footnote 33]

We agree with the Court of Appeals that the one sentence appearing in the
Committee's report for 1954, upon which petitioner largely predicates his exposure
argument, bears little significance when read in the context of the full report and in
light of the entire record. This sentence reads:

"The 1954 hearings were set up by the committee in order to demonstrate to the
people of Michigan the fields of concentration of the Communist Party in the
Michigan area, and the identity of those individuals responsible for its success."

[Footnote 34]

See p. 360 U. S. 124 and Note 24 supra.

MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS concur, dissenting.

On May 28, 1954, petitioner Lloyd Barenblatt, then 31 years old and a teacher of
psychology at Vassar College, was summoned to appear before a Subcommittee of
the House Committee on Un-American Activities. After service of the summons,
but before Barenblatt appeared on June 28, his four-year contract with Vassar
expired and was not renewed. He therefore came to the Committee as a private
citizen without a job. Earlier that day, the Committee's interest in Barenblatt had
been aroused by the testimony of an ex-Communist named Crowley. When
Crowley had first appeared before the Un-American Activities Committee, he had
steadfastly

Page 360 U. S. 135

refused to admit or deny Communist affiliations or to identify others as


Communists. After the House reported this refusal to the United States Attorney for
prosecution, Crowley "voluntarily" returned and asked to testify. He was sworn in
and interrogated, but not before he was made aware by various Committee
members of Committee policy to "make an appropriate recommendation" to
protect any witness who "fully cooperates with the committee." He then talked at
length, identifying by name, address and occupation, whenever possible, people he
claimed had been Communists. One of these was Barenblatt, who, according to
Crowley, had been a Communist during 1947-1950 while a graduate student and
teaching fellow at the University of Michigan. Though Crowley testified in great
detail about the small group of Communists who had been at Michigan at that time,
and though the Committee was very satisfied with his testimony, it sought
repetition of much of the information from Barenblatt. Barenblatt, however,
refused to answer their questions and filed a long statement outlining his
constitutional objections. He asserted that the Committee was violating the
Constitution by abridging freedom of speech, thought, press, and association, and
by conducting legislative trials of known or suspected Communists which
trespassed on the exclusive power of the judiciary. He argued that, however he
answered questions relating to membership in the Communist Party, his position in
society and his ability to earn a living would be seriously jeopardized; that he
would, in effect, be subjected to a bill of attainder despite the twice-expressed
constitutional mandate against such legislative punishments. [Footnote 2/1] This
would occur, he pointed out, even

Page 360 U. S. 136

if he did no more than invoke the protection of clearly applicable provisions of the
Bill of Rights as a reason for refusing to answer.
He repeated these and other objections in the District Court as a reason for
dismissing an indictment for contempt of Congress. His position, however, was
rejected at the trial and in the Court of Appeals for the District of Columbia Circuit
over the strong dissents of Chief Judge Edgerton and Judges Bazelon, Fahy and
Washington. The Court today affirms, and thereby sanctions the use of the
contempt power to enforce questioning by congressional committees in the realm
of speech and association. I cannot agree with this disposition of the case, for I
believe that the resolution establishing the House Un-American Activities
Committee and the questions that Committee asked Barenblatt violate the
Constitution in several respects. (1) Rule XI, creating the Committee, authorizes
such a sweeping, unlimited, all-inclusive and undiscriminating compulsory
examination of witnesses in the field of speech, press, petition and assembly that it
violates the procedural requirements of the Due Process Clause of the Fifth
Amendment. (2) Compelling an answer to the questions asked Barenblatt abridges
freedom of speech and association in contravention of the First Amendment. (3)
The Committee proceedings were part of a legislative program to stigmatize and
punish by public identification and exposure all witnesses considered by the
Committee to be guilty of Communist affiliations, as well as all witnesses who
refused to answer Committee questions on constitutional grounds; the Committee
was thus improperly seeking to try, convict, and punish suspects, a task which the
Constitution expressly denies to Congress and grants exclusively

Page 360 U. S. 137

to the courts, to be exercised by them only after indictment and in full compliance
with all the safeguards provided by the Bill of Rights.

It goes without saying that a law, to be valid, must be clear enough to make its
commands understandable. For obvious reasons, the standard of certainty required
in criminal statutes is more exacting than in noncriminal statutes. [Footnote 2/2]
This is simply because it would be unthinkable to convict a man for violating a law
he could not understand. This Court has recognized that the stricter standard is as
much required in criminal contempt cases as in all other criminal cases, [Footnote
2/3] and has emphasized that the "vice of vagueness" is especially pernicious
where legislative power over an area involving speech, press, petition and
assembly is involved. [Footnote 2/4] In this area, the statement that a statute is void
if it "attempts to cover so much that it effectively covers nothing," see Musser v.
Utah, 333 U. S. 95, 333 U. S. 97, takes on double significance. For a statute broad
enough to support infringement of speech, writings, thoughts and public
assemblies against the unequivocal command of the First Amendment necessarily
leaves all persons to guess just what the law really means to cover, and fear of a
wrong guess inevitably leads people to forego the very rights the Constitution
sought to protect above all others. [Footnote 2/5] Vagueness becomes

Page 360 U. S. 138

even more intolerable in this area if one accepts, as the Court today does, a
balancing test to decide if First Amendment rights shall be protected. It is difficult,
at best, to make a man guess -- at the penalty of imprisonment -- whether a court
will consider the State's need for certain information superior to society's interest in
unfettered freedom. It is unconscionable to make him choose between the right to
keep silent and the need to speak when the statute supposedly establishing the
"state's interest" is too vague to give him guidance. Cf. Scull v. Virginia, 359 U. S.
344.

Measured by the foregoing standards, Rule XI cannot support any conviction for
refusal to testify. In substance, it authorizes the Committee to compel witnesses to
give evidence about all "un-American propaganda," whether instigated in this
country or abroad. [Footnote 2/6] The word "propaganda" seems to mean anything
that people say, write, think or associate together about. The term "un-American" is
equally vague. As was said in Watkins v. United States, 354 U. S. 178,354 U. S.
202,

"Who can define [its] meaning . . . ? What is that single, solitary 'principle of the
form of government as guaranteed by our Constitution'?' I think it clear that the
boundaries of the Committee are, to say the least, 'nebulous.' Indeed, 'It would be
difficult to imagine a less explicit authorizing resolution.' Ibid. "

Page 360 U. S. 139

The Court -- while not denying the vagueness of Rule XI -- nevertheless defends
its application here because the questions asked concerned communism, a subject
of investigation which had been reported to the House by the Committee on
numerous occasions. If the issue were merely whether Congress intended to allow
an investigation of communism, or even of communism in education, it may well
be that we could hold the data cited by the Court sufficient to support a finding of
intent. But that is expressly not the issue. On the Court's own test, the issue is
whether Barenblatt can know with sufficient certainty, at the time of his
interrogation, that there is so compelling a need for his replies that infringement of
his rights of free association is justified. The record does not disclose where
Barenblatt can find what that need is. There is certainly no clear congressional
statement of it in Rule XI. Perhaps if Barenblatt had had time to read all the reports
of the Committee to the House, and in addition had examined the appropriations
made to the Committee, he, like the Court, could have discerned an intent by
Congress to allow an investigation of communism in education. Even so, he would
be hard put to decide what the need for this investigation is, since Congress
expressed it neither when it enacted Rule XI nor when it acquiesced in the
Committee's assertions of power. Yet it is knowledge of this need -- what is wanted
from him and why it is wanted -- that a witness must have if he is to be in a
position to comply with the Court's rule that he balance individual rights against
the requirements of the State. I cannot see how that knowledge can exist under
Rule XI.

But even if Barenblatt could evaluate the importance to the Government of the
information sought, Rule XI would still be too broad to support his conviction. For
we are dealing here with governmental procedures which the Court itself admits
reach to the very fringes of congressional

Page 360 U. S. 140

power. In such cases, more is required of legislatures than a vague delegation to be


filled in later by mute acquiescence. [Footnote 2/7] If Congress wants ideas
investigated, if it even wants them investigated in the field of education, it must be
prepared to say so expressly and unequivocally. And it is not enough that a court,
through exhaustive research, can establish, even conclusively, that Congress
wished to allow the investigation. I can find no such unequivocal statement here.

For all these reasons, I would hold that Rule XI is too broad to be meaningful, and
cannot support petitioner's conviction. [Footnote 2/8]

II

The First Amendment says in no equivocal language that Congress shall pass no
law abridging freedom of speech, press, assembly or petition. [Footnote 2/9] The
activities of

Page 360 U. S. 141


this Committee, authorized by Congress, do precisely that through exposure,
obloquy and public scorn. See Watkins v. United States, 354 U. S. 178,' 354 U. S.
197-198. The Court does not really deny this fact, but relies on a combination of
three reasons for permitting the infringement: (A) the notion that, despite the First
Amendment's command, Congress can abridge speech and association if this Court
decides that the governmental interest in abridging speech is greater than an
individual's interest in exercising that freedom, (B) the Government's right to
"preserve itself,"(C) the fact that the Committee is only after Communists or
suspected Communists in this investigation.

(A) I do not agree that laws directly abridging First Amendment freedoms can be
justified by a congressional or judicial balancing process. There are, of course,
cases suggesting that a law which primarily regulates conduct but which might also
indirectly affect speech can be upheld if the effect on speech is minor in relation to
the need for control of the conduct. With these cases I agree. Typical of them
are Cantwell v. Connecticut, 310 U. S. 296, and Schneider v. Irvington, 308 U. S.
147. Both of these involved the right of a city to control its streets. In Cantwell, a
man had been convicted of breach of the peace for playing a phonograph on the
street. He defended on the ground that he was disseminating religious views, and
could not, therefore, be stopped. We upheld his defense, but, in so doing, we
pointed out that the city did have substantial power over conduct on the streets
even where this power might to some extent affect speech. A State, we said, might,

"by general and nondiscriminatory legislation,

Page 360 U. S. 142

regulate the times, the places, and the manner of soliciting upon its streets and
holding meetings thereon."

310 U.S. at 310 U. S. 304. But even such laws governing conduct, we emphasized,
must be tested, though only by a balancing process, if they indirectly affect ideas.
On one side of the balance, we pointed out, is the interest of the United States in
seeing that its fundamental law protecting freedom of communication is not
abridged; on the other, the obvious interest of the State to regulate conduct within
its boundaries. In Cantwell, we held that the need to control the streets could not
justify the restriction made on speech. We stressed the fact that, where a man had a
right to be on a street, "he had a right peacefully to impart his views to others." 310
U.S. at 310 U. S. 308. Similar views were expressed in Schneider, which concerned
ordinances prohibiting the distribution of handbills to prevent littering. We forbade
application of such ordinances when they affected literature designed to spread
ideas. There were other ways, we said, to protect the city from littering which
would not sacrifice the right of the people to be informed. In so holding, we, of
course, found it necessary to "weigh the circumstances." 308 U.S. at 308 U. S. 161.
But we did not in Schneider, any more than in Cantwell, even remotely suggest that
a law directly aimed at curtailing speech and political persuasion could be saved
through a balancing process. Neither these cases nor any others can be read as
allowing legislative bodies to pass laws abridging freedom of speech, press and
association merely because of hostility to views peacefully expressed in a place
where the speaker had a right to be. Rule XI, on its face and as here applied, since
it attempts inquiry into beliefs, not action -- ideas and associations, not conduct --
does just that. [Footnote 2/10]

Page 360 U. S. 143

To apply the Court's balancing test under such circumstances is to read the First
Amendment to say

"Congress shall pass no law abridging freedom of speech, press, assembly and
petition, unless Congress and the Supreme Court reach the joint conclusion that, on
balance, the interest of the Government in stifling these freedoms is greater than
the interest of the people in having them exercised."

This is closely akin to the notion that neither the First Amendment nor any other
provision of the Bill of Rights should be enforced unless the Court believes it
is reasonable to do so. Not only does this violate the genius of
our written Constitution, but it runs expressly counter to the injunction to Court
and Congress made by Madison when he introduced the Bill of Rights.

"If they [the first ten amendments] are incorporated into the Constitution,
independent tribunals of justice will consider themselves in a peculiar manner the
guardians of those rights; they will be an impenetrable bulwark against every
assumption of power in the Legislative or Executive; they will be naturally led to
resist every encroachment upon rights expressly stipulated for in the Constitution
by the declaration of rights. [Footnote 2/11]"

Unless we return to this view of our judicial function, unless we once again accept
the notion that the Bill of Rights means what it

Page 360 U. S. 144


says and that this Court must enforce that meaning, I am of the opinion that our
great charter of liberty will be more honored in the breach than in the observance.

But even assuming what I cannot assume, that some balancing is proper in this
case, I feel that the Court after stating the test ignores it completely. At most, it
balances the right of the Government to preserve itself, against Barenblatt's right to
refrain from revealing Communist affiliations. Such a balance, however, mistakes
the factors to be weighed. In the first place, it completely leaves out the real
interest in Barenblatt's silence, the interest of the people as a whole in being able to
join organizations, advocate causes and make political "mistakes" without later
being subjected to governmental penalties for having dared to think for themselves.
It is this right, the right to err politically, which keeps us strong as a Nation. For no
number of laws against communism can have as much effect as the personal
conviction which comes from having heard its arguments and rejected them, or
from having once accepted its tenets and later recognized their worthlessness.
Instead, the obloquy which results from investigations such as this not only stifles
"mistakes," but prevents all but the most courageous from hazarding any views
which might at some later time become disfavored. This result, whose importance
cannot be overestimated, is doubly crucial when it affects the universities, on
which we must largely rely for the experimentation and development of new ideas
essential to our country's welfare. It is these interests of society, rather than
Barenblatt's own right to silence, which I think the Court should put on the balance
against the demands of the Government, if any balancing process is to be tolerated.
Instead they are not mentioned, while, on the other side, the demands of the
Government are vastly overstated, and called "self-preservation." It is admitted that
this Committee can only seek

Page 360 U. S. 145

information for the purpose of suggesting laws, and that Congress' power to make
laws in the realm of speech and association is quite limited, even on the Court's
test. Its interest in making such laws in the field of education, primarily a state
function, is clearly narrower still. Yet the Court styles this attenuated interest self-
preservation, and allows it to overcome the need our country has to let us all think,
speak, and associate politically as we like, and without fear of reprisal. Such a
result reduces "balancing" to a mere play on words, and is completely inconsistent
with the rules this Court has previously given for applying a "balancing test,"
where it is proper:
"[T]he courts should be astute to examine the effect of the challenged legislation.
Mere legislative preferences or beliefs . . . may well support regulation directed at
other personal activities, but be insufficient to justify such as diminishes the
exercise of rights so vital to the maintenance of democratic institutions."

Schneider v. Irvington, 308 U. S. 147, 308 U. S. 161. (Italics supplied.)

(B) Moreover, I cannot agree with the Court's notion that First Amendment
freedoms must be abridged in order to "preserve" our country. That notion rests on
the unarticulated premise that this Nation's security hangs upon its power to punish
people because of what they think, speak or write about, or because of those with
whom they associate for political purposes. The Government, in its brief, virtually
admits this position when it speaks of the "communication of unlawful ideas." I
challenge this premise, and deny that ideas can be proscribed under our
Constitution. I agree that despotic governments cannot exist without stifling the
voice of opposition to their oppressive practices. The First Amendment means to
me, however, that the only constitutional way our Government can preserve itself
is to leave its people the fullest possible freedom to praise, criticize or discuss, as
they see fit, all governmental policies and to suggest, if they desire,

Page 360 U. S. 146

that even its most fundamental postulates are bad, and should be changed; "Therein
lies the security of the Republic, the very foundation of constitutional
government." [Footnote 2/12] On that premise this land was created, and on that
premise it has grown to greatness. Our Constitution assumes that the common
sense of the people and their attachment to our country will enable them, after free
discussion, to withstand ideas that are wrong. To say that our patriotism must be
protected against false ideas by means other than these is, I think, to make a
baseless charge. Unless we can rely on these qualities -- if, in short, we begin to
punish speech -- we cannot honestly proclaim ourselves to be a free Nation, and we
have lost what the Founders of this land risked their lives and their sacred honor to
defend.

(C) The Court implies, however, that the ordinary rules and requirements of the
Constitution do not apply because the Committee is merely after Communists, and
they do not constitute a political party, but only a criminal gang. "[T]he long and
widely accepted view," the Court says, is "that the tenets of the Communist Party
include the ultimate overthrow of the Government of the United States by force
and violence." [Footnote 2/13] This justifies the
Page 360 U. S. 147

investigation undertaken. By accepting this charge and allowing it to support


treatment of the Communist Party and its members which would violate the
Constitution if applied to other groups, the Court, in effect, declares that Party
outlawed. It has been only a few years since there was a practically unanimous
feeling throughout the country and in our courts that this could not be done in our
free land. Of course, it has always been recognized that members of the Party who,
either individually or in combination, commit acts in violation of valid laws can be
prosecuted. But the Party as a whole and innocent members of it could not be
attainted merely because it had some illegal aims and because some of its members
were lawbreakers. Thus, in De Jonge v. Oregon, 299 U. S. 353, 299 U. S.
357 (1937), on stipulated facts that the Communist Party advocated criminal
syndicalism --

"crime, physical violence, sabotage or any unlawful acts or methods as a means of


accomplishing or effecting industrial or political change or revolution"

-- a unanimous Court, speaking through Chief Justice Hughes, held that a


Communist addressing a Communist rally could be found guilty of no offense so
long as no violence or crime was urged at the meeting. The Court absolutely
refused to concede that either De Jonge or the Communist Party forfeited the
protections of the First and Fourteenth Amendments because one of the Party's
purposes was to effect a violent change of government. See also Herndon v.
Lowry, 301 U. S. 242.

Later, in 1948, when various bills were proposed in the House and Senate to
handicap or outlaw the Communist Party, leaders of the Bar who had been asked to
give their views rose up to contest the constitutionality of the measures. The late
Charles Evans Hughes, Jr., questioned the validity under both the First and Fifth
Amendments of one of these bills, which in effect outlawed the Party. The late
John W. Davis attacked it

Page 360 U. S. 148

as lacking an ascertainable standard of guilt under many of this Court's cases.


[Footnote 2/14] And the Attorney General of the United States not only indicated
that such a measure would be unconstitutional, but declared it to be unwise even if
valid. He buttressed his position by citing a statement by J. Edgar Hoover, Director
of the Federal Bureau of Investigation, and the declaration of this Court in West
Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642, that:
"If there is any fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by word or act
their faith therein. [Footnote 2/15]"

Even the proponent of the bill disclaimed any aim to outlaw the Communist Party
and pointed out the "disadvantages" of such a move by stating that "the Communist
Party was illegal and outlawed in Russia when it took over control of the Soviet
Union." [Footnote 2/16] Again, when the

Page 360 U. S. 149

Attorney General testified on a proposal to bar the Communist Party from the
ballot, he said,

"an organized group, whether you call it political or not, could hardly be barred
from the ballot without jeopardizing the constitutional guarantees of all other
political groups and parties. [Footnote 2/17]"

All these statements indicate quite clearly that, no matter how often or how quickly
we repeat the claim that the Communist Party is not a political party, we cannot
outlaw it, as a group, without endangering the liberty of all of us. The reason is not
hard to find, for mixed among those aims of communism which are illegal are
perfectly normal political and social goals. And muddled with its revolutionary
tenets is a drive to achieve power through the ballot, if it can be done. These things
necessarily make it a political party whatever other, illegal, aims it may have. Cf.
Gerende v. Board of Supervisors, 341 U. S. 56. Significantly, until recently, the
Communist Party was on the ballot in many States. When that was so, many
Communists undoubtedly hoped to accomplish

Page 360 U. S. 150

its lawful goals through support of Communist candidates. Even now, some such
may still remain. [Footnote 2/18] To attribute to them, and to those who have left
the Party, the taint of the group is to ignore both our traditions that guilt, like belief,
is "personal, and not a matter of mere association," and the obvious fact that

"men adhering to a political party or other organization notoriously do not


subscribe unqualifiedly to all of its platforms or asserted principles."
Schneiderman v. United States, 320 U. S. 118, 320 U. S. 136. See also Dennis v.
United States, 341 U. S. 494, 341 U. S. 579, 341 U. S. 581 (dissenting opinions).

The fact is that, once we allow any group which has some political aims or ideas to
be driven from the ballot and from the battle for men's minds because some of its
members are bad and some of its tenets are illegal, no group is safe. Today we deal
with Communists or suspected Communists. In 1920, instead, the New York
Assembly suspended duly elected legislators on the ground that, being Socialists,
they were disloyal to the country's principles. [Footnote 2/19] In the 1830's, the
Masons were hunted as outlaws and subversives, and abolitionists were considered
revolutionaries of the most dangerous kind in both North and South. [Footnote
2/20] Earlier still, at the time of the universally

Page 360 U. S. 151

unlamented alien and sedition laws, Thomas Jefferson's party was attacked and its
members were derisively called "Jacobins." Fisher Ames described the party as a
"French faction" guilty of "subversion" and "officered, regimented and formed to
subordination." Its members, he claimed, intended to "take arms against the laws as
soon as they dare." [Footnote 2/21] History should teach us then, that, in times of
high emotional excitement, minority parties and groups which advocate extremely
unpopular social or governmental innovations will always be typed as criminal
gangs, and attempts will always be made to drive them out. [Footnote 2/22] It was
knowledge of this fact, and of its great dangers, that caused the Founders of our
land to enact the First Amendment as a guarantee that neither Congress nor the
people would do anything to hinder or destroy the capacity of individuals and
groups to seek converts and votes for any cause, however radical or unpalatable
their principles might seem under the accepted notions of the time. Whatever the
States were left free to do, the First Amendment sought to leave Congress devoid
of any kind or quality of power to direct any type of national laws against the
freedom of individuals to think what they please, advocate whatever policy they
choose, and join with others to bring about the social, religious, political and
governmental changes which seem best to them. [Footnote 2/23] Today's holding,
in my judgment, marks

Page 360 U. S. 152

another major step in the progressively increasing retreat from the safeguards of
the First Amendment.
It is, sadly, no answer to say that this Court will not allow the trend to overwhelm
us; that today's holding will be strictly confined to "Communists," as the Court's
language implies. This decision can no more be contained than could the holding
in American Communications Assn. v. Douds, 339 U. S. 382. In that case, the Court
sustained as an exercise of the commerce power an Act which required labor union
officials to take an oath that they were not members of the Communist Party. The
Court rejected the idea that the Douds holding meant that the Party and all its
members could be attainted because of their Communist beliefs. It went to great
lengths to explain that the Act held valid

"touches only a relative handful of persons, leaving the great majority of persons of
the identified affiliations and beliefs completely free from restraint."

"[W]hile this Court sits," the Court proclaimed, no wholesale proscription of


Communists or their Party can occur. 339 U.S. at 339 U. S. 404, 339 U. S. 410. I
dissented and said:

"Under such circumstances, restrictions imposed on proscribed groups are seldom


static, even though the rate of expansion may not move in geometric progression
from discrimination to arm-band to ghetto and worse. Thus, I cannot regard the
Court's holding as one which merely bars Communists from holding union office,
and nothing more. For its reasoning would apply just as forcibly to statutes barring
Communists and their respective sympathizers from election to political office,
mere membership

Page 360 U. S. 153

in unions, and, in fact, from getting or holding any job whereby they could earn a
living."

339 U.S. at 339 U. S. 449. My prediction was all too accurate. Today, Communists
or suspected Communists have been denied an opportunity to work as government
employees, lawyers, doctors, teachers, pharmacists, veterinarians, subway
conductors, industrial workers and in just about any other job. See Speiser v.
Randall, 357 U. S. 513, 357 U. S. 531 (concurring opinion). Cf. Barsky v. Board of
Regents, 347 U. S. 442, 347 U. S. 456, 347 U. S. 467, 347 U. S. 472 (dissenting
opinions). In today's holding, they are singled out and, as a class, are subjected to
inquisitions which the Court suggests would be unconstitutional but for the fact of
"Communism." Nevertheless, this Court still sits! [Footnote 2/24]

III
Finally, I think Barenblatt's conviction violates the Constitution because the chief
aim, purpose and practice of the House Un-American Activities Committee, as
disclosed by its many reports, is to try witnesses and punish them because they are
or have been Communists or because they refuse to admit or deny Communist
affiliations. The punishment imposed is generally punishment by humiliation and
public shame. There is nothing strange or novel about this kind of punishment. It
is, in

Page 360 U. S. 154

fact, one of the oldest forms of governmental punishment known to mankind;


branding, the pillory, ostracism and subjection to public hatred being but a few
examples of it. [Footnote 2/25] Nor is there anything strange about a court's
reviewing the power of a congressional committee to inflict punishment. In 1880,
this Court nullified the action of the House of Representatives in sentencing a
witness to jail for failing to answer questions of a congressional
committee.Kilbourn v. Thompson, 103 U. S. 168. The Court held that the
Committee, in its investigation of the Jay Cooke bankruptcy, was seeking to
exercise judicial power, and this, it emphatically said, no committee could do. It
seems to me that the proof that the Un-American Activities Committee is here
undertaking a purely judicial function is overwhelming, far stronger, in fact, than it
was in the Jay Cooke investigation which, moreover, concerned only business
transactions, not freedom of association.

The Un-American Activities Committee was created in 1938. It immediately


conceived of its function on a grand scale as one of ferreting out "subversives," and
especially of having them removed from government jobs. [Footnote 2/26] It made
many reports to the House urging removal

Page 360 U. S. 155

of such employees. [Footnote 2/27] Finally, at the instigation of the Committee, the
House put a rider on an appropriation bill to bar three government workers from
collecting their salaries. [Footnote 2/28] The House action was based on
Committee findings that each of the three employees was a member of, or
associated with, organizations deemed undesirable, and that the "views and
philosophies" of these workers,

"as expressed in various statements and writings, constitute subversive activity


within the definition adopted by your committee, and that [they are] therefore unfit
for the present to continue in Government employment. [Footnote 2/29]"
The Senate and the President agreed

Page 360 U. S. 156

to the rider, though not without protest. We held that statute void as a bill of
attainder in United States v. Lovett, 328 U. S. 303 (1946), stating that its "effect
was to inflict punishment without the safeguards of a judicial trial," and that this
"cannot be done either by a State or by the United States." 328 U.S. at 328 U. S.
316-317.

Even after our Lovett holding, however, the Committee continued to view itself as
the "only agency of government that has the power of exposure," and to work
unceasingly and sincerely to identify and expose all suspected Communists and
"subversives" in order to eliminate them from virtually all fields of employment.
[Footnote 2/30] How well it has succeeded in its declared program of "pitiless
publicity and exposure" is a matter of public record. It is enough to cite the
experience of a man who masqueraded as a Communist for the F.B.I. and who
reported to this same Committee that, since 1952, when his "membership" became
known, he has been unable to hold any job. [Footnote 2/31] To

Page 360 U. S. 157

accomplish this kind of result, the Committee has called witnesses who are
suspected of Communist affiliation, has subjected them to severe questioning, and
has insisted that each tell the name of every person he has ever known at any time
to have been a Communist, and, if possible, to give the addresses and occupations
of the people named. These names are then indexed, published, and reported to
Congress, and often to the press. [Footnote 2/32] The same technique is employed
to cripple the job opportunities of those who strongly criticize the Committee or
take other actions it deems undesirable. [Footnote 2/33] Thus, in 1949, the
Committee

Page 360 U. S. 158

reported that it had indexed and printed some 335,000 names of people who had
signed "Communist" petitions of one kind or another. [Footnote 2/34] All this the
Committee did and does to punish by exposure the many phases of "un-American"
activities that it reports cannot be reached by legislation, by administrative action,
or by any other agency of Government, which, of course, includes the courts.
The same intent to expose and punish is manifest in the Committee's investigation
which led to Barenblatt's conviction. The declared purpose of the investigation was
to identify to the people of Michigan the individuals responsible for the, alleged,
Communist success there. [Footnote 2/35] The Committee claimed that its
investigation "uncovered" members of the Communist Party holding positions in
the school systems in Michigan; that most of the teachers subpoenaed before the
Committee refused to answer questions on the ground that to do so might result in

Page 360 U. S. 159

self-incrimination, and that most of these teachers had lost their jobs. It then stated
that "the Committee on Un-American Activities approves of this action." [Footnote
2/36]

Similarly, as a result of its Michigan investigation, the Committee called upon


American labor unions to amend their constitutions, if necessary, in order to deny
membership to any Communist Party member. [Footnote 2/37] This would, of
course, prevent many workers from getting or holding the only kind of jobs their
particular skills qualified them for. The Court, today, barely mentions these
statements, which, especially when read in the context of past reports by the
Committee, show unmistakably what the Committee was doing. I cannot
understand why these reports are deemed relevant to a determination of a
congressional intent to investigate communism in education, but irrelevant to any
finding of congressional intent to bring about exposure for its own sake or for the
purposes of punishment.

I do not question the Committee's patriotism and sincerity in doing all this.
[Footnote 2/38] I merely feel that it cannot be done by Congress under our
Constitution. For, even assuming that the Federal Government can compel
witnesses to testify as to Communist affiliations in order to subject them to ridicule
and social and economic retaliation, I cannot agree that this is a legislative
function. Such publicity is clearly punishment, and the Constitution

Page 360 U. S. 160

allows only one way in which people can be convicted and punished. As we said
in Lovett,

"Those who wrote our Constitution well knew the danger inherent in special
legislative acts which take away the life, liberty or property of particular named
persons because the legislature thinks them guilty of conduct which deserves
punishment. They intended to safeguard the people of this country from
punishment without trial by duly constituted courts."

328 U.S. at 328 U. S. 317. (Italics added.) Thus, if communism is to be made a


crime, and Communists are to be subjected to "pains and penalties," I would still
hold this conviction bad, for the crime of communism, like all others, can be
punished only by court and jury, after a trial with all judicial safeguards.

It is no answer to all this to suggest that legislative committees should be allowed


to punish if they grant the accused some rules of courtesy or allow him counsel.
For the Constitution proscribes all bills of attainder by State or Nation, not merely
those which lack counsel or courtesy. It does this because the Founders believed
that punishment was too serious a matter to be entrusted to any group other than an
independent judiciary and a jury of twelve men acting on previously passed,
unambiguous laws, with all the procedural safeguards they put in the Constitution
as essential to a fair trial -- safeguards which included the right to counsel,
compulsory process for witnesses, specific indictments, confrontation of accusers,
as well as protection against self-incrimination, double jeopardy and cruel and
unusual punishment -- in short, due process of law. Cf. Chambers v. Florida, 309
U. S. 227. They believed this because, not long before, worthy men had been
deprived of their liberties, and indeed their lives, through parliamentary trials
without these safeguards. The memory of one of these, John Lilburne -- banished
and disgraced by a parliamentary

Page 360 U. S. 161

committee on penalty of death if he returned to his country -- was particularly


vivid when our Constitution was written. His attack on trials by such committees
and his warning that "what is done unto any one may be done unto every one"
[Footnote 2/39] were part of the history of the times

Page 360 U. S. 162

which moved those who wrote our Constitution to determine that no such arbitrary
punishments should ever occur here. It is the protection from arbitrary punishments
through the right to a judicial trial with all these safeguards which, over the years,
has distinguished America from lands where drumhead courts and other similar
"tribunals" deprive the weak and the unorthodox of life, liberty and property
without due process of law. It is this same right which is denied to Barenblatt,
because the Court today fails to see what is here for all to see -- that exposure and
punishment is the aim of this Committee and the reason for its existence. To deny
this is to ignore the Committee's own claims and the reports it has issued ever since
it was established. I cannot believe that the nature of our judicial office requires us
to be so blind, and must conclude that the Un-American Activities Committee's
"identification" and "exposure" of Communists and suspected Communists, like
the activities of the Committee in Kilbourn v. Thompson, amount to an
encroachment on the judiciary which bodes ill for the liberties of the people of this
land.

Ultimately, all the questions in this case really boil down to one -- whether we as a
people will try fearfully and futilely to preserve democracy by adopting totalitarian
methods or whether, in accordance with our traditions and our Constitution, we
will have the confidence and courage to be free.

I would reverse this conviction.

Sinclair v. United States, 279 U.S. 263 (1929)

Sinclair v. United States

No. 555

Argued February 18, 19, 1929

Decided April 8, 1929

279 U.S. 263

CERTIFICATE FROM THE COURT OF APPEALS

OF THE DISTRICT OF COLUMBIA

1. The chairman and any of the members of the Committee on Public Lands and
Surveys of the Senate are empowered to administer oaths to witnesses before the
committee. Rev.Stats. 101. P. 279 U. S. 291.

2. Rev.Stats. 102, prescribing punishment for refusal to answer before


congressional committees, includes witnesses who voluntarily appear without
being summoned. P. 279 U. S. 291.
3. While the power of inquiry of the respective houses of Congress is an essential
and appropriate auxiliary to the legislative function, it must be exerted with due
regard for the rights of witnesses; a witness may rightfully refuse to answer where
the bounds of the power are exceeded or where the questions asked are not
pertinent to the matter under inquiry. McGrain v. Daugherty, 273 U. S. 135. P. 279
U. S. 291.

4. A naval petroleum reserve, in charge of the Secretary of the Navy under the Act
of June 4, 1920, 41 Stat. 12, was made the subject of an executive order purporting
to give the administration and conservation of all oil and gas lands therein to the
Secretary of the Interior under the supervision of the President. The two
Secretaries, at the procurement of the defendant, leased lands in the reserve to a
company of which he owned all the shares. Questions having arisen as to the
legality and good faith of the lease and an attendant contract, and of others similar,
and also as to the future policy of the government regarding such matters, the
Senate, by resolutions, directed its committee to investigate the entire subject of
such leases, with particular reference to the protection of the rights and equities of
the United States and the preservation of its natural resources, to ascertain what, if
any, other, or additional legislation might be advisable, and to report its findings
and recommendations to the Senate. Congress, also, by joint resolution, reciting
that the lease and contract were illegal and apparently fraudulent, directed the
President to cause suit to be instituted for their cancellation, and to prosecute such
other actions, civil or criminal, as were warranted. After suit had been begun
against

Page 279 U. S. 264

his company pursuant to this resolution, and while criminal action was impending
against himself, the defendant appeared before the committee and was asked a
question which sought the facts within his knowledge concerning a contract
executed by him for his company to pay certain persons for a release of rights in
lands embraced in his company's lease. Defendant refused to answer, not upon the
ground of self-incrimination, but for the reason that the investigation and the
question were unauthorized. He was prosecuted for contumacy, under Rev.Stats.
102, and convicted.
Held:

(1) Neither the investigation authorized by the Senate's resolutions nor the question
put by the committee related merely to the defendant's private affairs. P. 279 U. S.
294.

(2) Under Art. IV, 3 of the Constitution, Congress had plenary powers to dispose
of and make all needful rules and regulations respecting the naval reserves, and the
Senate had power to delegate authority to its committee to investigate and report
what had been and was being done by executive departments under the leasing Act,
the Naval Oil Reserve Act, and the President's order in respect of the reserves, and
to make any other inquiry concerning the public domain. P. 279 U. S. 294.

(3) The validity of the lease and the means by which it had been obtained under
existing law were subjects that properly might be investigated in order to
determine what, if any, legislation was necessary or desirable in order to recover
the leased lands or to safeguard other parts of the domain. P. 279 U. S. 294.

(4) Neither the joint resolution directing legal proceedings nor the action taken
under it operated to divest the Senate or the committee of further power to
investigate the actual administration of the land laws; the authority of Congress,
directly or through its committees, to require pertinent disclosures in aid of its own
constitutional power is not abridged because the information sought to be elicited
may also be of use in such suits. P. 279 U. S. 295.

(5) A refusal of the committee to pass a motion that the examination of defendant
should not relate to controversies pending in court, and the statement of one of the
members that there was nothing else to examine him about, were not enough to
show that the committee intended to depart from the purpose to ascertain whether
additional legislation might be advisable. Investigation of the matters involved in
suits brought, or to be brought, under the joint resolution might directly aid
legislative action. P. 279 U. S. 295.

(6) A resolution of the Senate, the purpose of which, as plainly shown by the
context and circumstances, was to keep in force
Page 279 U. S. 265

through the next session of Congress an earlier resolution empowering the


committee to summon and swear witnesses, should not be denied that effect
because of mistakes in its reference to the date and number of the earlier
resolution. P.279 U. S. 295.

(7) The question propounded by the committee was pertinent to matters it was
authorized to investigate, relating (a) to the right and equities of the United States
as owner of the land leased to the defendant, and (b) to the effect of existing laws
concerning oil and other mineral lands and the need for further legislation. P. 279
U. S. 297.

5. In a prosecution for the offence of refusing to answer a question put to the


accused as a witness before a committee of the Senate (R.S. 102), the burden is
upon the United States to show that the question was pertinent to a matter under
investigation; any presumption of regularity in that regard is overcome by the
presumption of innocence attending the accused at the trial. P. 279 U. S. 296.

6. In a prosecution for refusal to answer a question before a committee of the


Senate, it is the province of the court, and not of the jury, to decide whether the
question was pertinent to the subjects covered by the Senate resolutions
authorizing the committee's investigation. P. 279 U. S. 298.

7. In such a prosecution, the fact that the accused acted in good faith on the advice
of competent counsel in refusing to answer a question put by the committee is not a
defense. P. 279 U. S. 299.

8. A judgment imposing a single sentence on several counts of an indictment may


be affirmed under one count without considering the others if the conviction as to
that count be sustained and if the maximum punishment authorized for the offense
charged in that count be not exceeded by the sentence. P. 279 U. S. 299.

Affirmed.

Review of a judgment of the Supreme Court of the District of Columbia sentencing


the defendant, under Rev.Stats. 102, for refusing to answer questions before a
committee of the Senate. The case was appealed from the trial court to the Court of
Appeals of the District. That court certified certain questions for instruction, and
this Court, by order, brought up the entire record.

Page 279 U. S. 284

MR. JUSTICE BUTLER delivered the opinion of the Court.

Appellant was found guilty of violating R.S. 102, U.S.C. Tit. 2, 192. He was
sentenced to jail for three months and to pay a fine of $500. The case was taken to
the Court of Appeals of the District of Columbia; that court certified to this Court
certain questions of law upon which it desired instruction for the proper decision of
the case. We directed the entire record to be sent up. Judicial Code, 239, U.S.C.
Tit. 28, 346.

Section 102 follows:

"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 either house, or any

Page 279 U. S. 285

committee of either house of Congress, willfully makes default, or who, having


appeared, refuses to answer any question pertinent to the question under inquiry,
shall be deemed guilty of a misdemeanor, punishable by a fine of not more than
$1,000 nor less than $100, and imprisonment in a common jail for not less than one
month nor more than twelve months."

By way of inducement, the indictment set forth the circumstances leading up to the
offense which in brief substance are as follows:

For many years, there had been progressive diminution of petroleum necessary for
the operation of naval vessels; consequently, the government was interested to
conserve the supply and especially that in the public domain.
Pursuant to the Act of June 25, 1910, 36 Stat. 847, the President, by executive
orders dated September 2, 1912, December 13, 1912, and April 30, 1915, ordered
that certain oil and gas-bearing lands in California and Wyoming be held for the
exclusive use of the Navy. These areas were designated Naval Petroleum Reserves
1, 2, and 3, respectively.

The Act of February 25, 1920, 41 Stat. 437, provided for the leasing of public lands
containing oil and other minerals. And the Act of June 4, 1920, 41 Stat. 812, 813,
directed the Secretary of the Navy of take possession of all properties in the naval
reserves "on which there are no pending claims or applications for permits or
leases under the" Leasing Act of February 25, 1920 "or pending applications for
United States patent under any law," to conserve, develop, use, and operate the
same by contract, lease, or otherwise, and to use, store, exchange or sell the oil and
gas products thereof for the benefit of the United States. And it was declared that
the rights of any claimants under the Leasing Act were not thereby adversely
affected.

Page 279 U. S. 286

May 31, 1921, the President promulgated an executive order purporting to give the
administration and conservation of all oil and gas bearing lands in the naval
reserves to the Secretary of the Interior subject to supervision by the President.

April 7, 1922, the Secretary of the Navy and the Secretary of the Interior made a
lease of lands in Reserve No. 3 to the Mammoth Oil Company. This was done by
the procurement of the appellant action as the president of the company. The lease
purported to grant to the company the right to take oil and gas and contained a
provision selling royalty oils to the company. And February 9, 1923, a
supplemental contract was made by which the company agreed to furnish storage
facilities for the Navy. Mammoth Oil Co. v. United States, 275 U. S. 13.

April 25, 1922, the same Secretaries made a contract with the Pan-American
Petroleum & Transport Company for the sale to it of royalty oils from Reserves 1
and 2. December 11, 1922, another contract was made by them. The purpose of
these agreements was to arrange that the company furnish storage facilities for the
Navy in exchange for royalty oils to be received by the United States under leases
then in force and thereafter to be made. December 11, 1922, the same Secretaries
made a lease to the Pan American Petroleum Company purporting to grant to it the
right to take oil and gas from Reserve No. 1. Pan American Co. v. United
States, 273 U. S. 456.

The lease to the Mammoth Company and the contract with the Transport Company
came to the attention of the Senate, and it was charged that there had been fraud
and bad faith in the making of them. Questions arose as to their legality, the future
policy of the government as to them, and similar leases and contracts, and as to the
necessity and desirability of legislation upon the subject.

Page 279 U. S. 287

April 29, 1922, the Senate adopted Resolution 282, calling upon the Secretary of
the Interior for information and containing the following:

"That the committee on public lands and surveys be authorized to investigate this
entire subject of leases upon naval oil reserves with particular reference to the
protection of the rights and equities of the government of the United States and the
preservation of its natural resources, and to report its findings and
recommendations to the Senate."

June 5, 1922, Resolution 282 was amended by Resolution 294 by adding a


provision that the committee

"is hereby authorized . . . to require the attendance of witnesses by subpoenas or


otherwise; to require the production of books, papers and documents. . . . The
chairman of the committee, or any member thereof, may administer oaths to
witnesses and sign subpoenas for witnesses."

February 5, 1923, the Senate passed Resolution 434, which continued in force and
effect until the end of the Sixty-Eighth Congress and until otherwise ordered,
"Senate Resolution 282 agreed to April 21 [29], 1922, and Senate Resolution 292,
agreed to May 15, 1922." (The government suggests that, instead of the resolution
last mentioned, there was meant Resolution 294 adopted June 5, 1922.)
February 7, 1924, the Senate passed Resolution 147, directing in substance the
same as it had theretofore done by the two resolutions first above mentioned and
also that the committee "ascertain what, if any, other or additional legislation may
be advisable and to report its findings and recommendations to the Senate."

The committee proceeded to exercise the authority conferred upon it, and, for that
purpose, held hearings at which witnesses were examined and documents
produced. Appellant was summoned, appeared and was sworn December 4, 1923.

Page 279 U. S. 288

And the indictment charges that, on March 22, 1924, the matters referred to in
these resolutions being under inquiry, and appellant having been summoned to give
testimony and having been sworn as aforesaid, did appear before the committee as
a witness. The first count alleges that Senator Walsh, a member of the committee,
propounded to him a question which appellant knew was pertinent to the matters
under inquiry:

"Mr. Sinclair, I desire to interrogate you about a matter concerning which the
committee had no knowledge or reliable information at any time when you had
heretofore appeared before the committee, and with respect to which you must then
have had knowledge. I refer to the testimony given by Mr. Bonfils concerning a
contract that you made with him touching the Teapot Dome. I wish you would tell
us about that."

And, to explain that question, the indictment states:

"Said Hon. Thomas J. Walsh thereby meaning and intending, as said Harry F.
Sinclair then and there well knew and understood, to elicit from him the said Harry
F. Sinclair, facts, which then were within his knowledge, touching the execution
and delivery of a certain contract bearing date September 25, 1922, made and
executed by the between said Mammoth Oil Company, one F. G. Bonfils, and one
John Leo Stack, which was executed on behalf of said Mammoth Oil Company by
said Harry F. Sinclair as President of said Mammoth Oil Company, and which,
among other things, provided for the payment, by said Mammoth Oil Company,
unto said F. G. Bonfils and said John Leo Stack, of the sum of $250,000, on or
before October 15, 1922, in consideration of the release, by said F. G. Bonfils and
said John Leo Stack, of rights to lands described in said Executive Order of April
30, 1915, and embraced in the aforesaid lease of April 7, 1922."

And that count concluded: "And that said Harry

Page 279 U. S. 289

F. Sinclair then and there unlawfully did refuse to answer said question. . . ."

Senate Joint Resolution 54 was approved February 8, 1924. 43 Stat. 5. It recited


that the leases and contracts above mentioned were executed under circumstances
indicating fraud and corruption, that they were without authority, contrary to law,
and in defiance of the settled policy of the government, and the resolution declared
that the lands embraced therein should be recovered and held for the purposes to
which they were dedicated. It directed the President to cause suit to be instituted
for the cancellation of the leases and contracts, to prosecute such other actions or
proceedings, civil and criminal, as were warranted by the facts, and authorized the
appointment of special counsel to have charge of the matter.

Prior to March 22, 1924, appellant, at the request of the committee, appeared five
times before it, and was sworn as alleged. March 19, 1924, a United States marshal
at New York served upon him a telegram, which was in form a subpoena signed by
the chairman of the committee, requiring him to appear as a witness, and he did
appear on March 22. Before any questions were put, he submitted a statement.

He disclaimed any purpose to invoke protection against self-incrimination, and


asserted there was nothing in the transaction which could incriminate him. He
emphasized his earlier appearances, testimony, production of papers, and discharge
from further attendance. He called attention to Joint Resolution 54, discussed its
provisions, and stated that a suit charging conspiracy and fraud had been
commenced against the Mammoth Company and others and that the government's
motion for injunction and receivers had been granted, and that application had been
made for a special grand jury to investigate the making

Page 279 U. S. 290


of the lease. He asserted that the committee could not then investigate the matters
covered by the authorization because the Senate, by the adoption of the joint
resolution, had exhausted its power, and Congress and the President had made the
whole matter a judicial question which was determinable only in the courts. The
statement concluded:

"I shall reserve any evidence I may be able to give for those courts to which you
and your colleagues have deliberately referred all questions of which you had any
jurisdiction and shall respectfully decline to answer any questions propounded by
your committee."

After appellant's statement, his counsel asked the privilege of presenting to the
committee reasons why it did not have authority further to take testimony of
appellant. In the course of his remarks, he said:

"Mr. Sinclair is already under oath before the committee. . . . He is on the stand
now in every sense of the word, and the objection really is to any further
examination of him on the subjects involved in this resolution."

Discussion followed, and a motion was made:

"That, in the examination, the inquiry shall not relate to pending controversies
before any of the federal courts in which Mr. Sinclair is a defendant, and which
questions would involve his defense."

During a colloquy that followed, one of the members said: "Of course, we will vote
it [the motion] down. . . . If we do not examine Mr. Sinclair about those matters,
there is not anything else to examine him about." The motion was voted down.
Then the appellant was asked the question set forth in the first count, and he said:
"I decline to answer on the advice of counsel on the same ground."

Appellant contends that his demurrer to the several counts of the indictment should
have been sustained, and that a verdict of not guilty should have been directed. To
support that contention, he argues that the questions related to his private affairs
and to matters cognizable only in the courts wherein they were pending, and that

Page 279 U. S. 291


the committee avowedly had departed from any inquiry in aid of legislation.

He maintains that there was no proof of any authorized inquiry by the committee,
or that he was legally summoned or sworn, or that the questions propounded were
pertinent to any inquiry it was authorized to make, and that, because of such
failure, he was entitled to have a verdict directed in his favor.

He insists that the court erred in holding that the question of pertinency was one of
law for the court and in not submitting it to the jury, and also erred in excluding
evidence offered to sustain his refusal to answer.

1. The committee on public lands and surveys is one of the standing committees of
the Senate. No question is raised as to the validity of its organization and existence.
Under 101 of the Revised Statutes, U.S.C. Tit. 2, 191, its chairman and any of
its members are empowered to administer oaths to witnesses before it. Section 102
plainly extends to a case where a person voluntarily appears as a witness without
being summoned, as well as to the case of one required to attend.

By our opinion in McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 173, decided


since the indictment now before us was found, two propositions are definitely laid
down:

"One, that the two houses of Congress, in their separate relations, possess not only
such powers as are expressly granted to them by the Constitution, but such
auxiliary powers as are necessary and appropriate to make the express powers
effective; and, the other, that neither house is invested with 'general' power to
inquire into private affairs and compel disclosures, but only with such limited
power of inquiry as is shown to exist when the rule of constitutional interpretation
just stated is rightly applied."

And that case shows that, while the power of inquiry is an essential and appropriate
auxiliary to the legislative function, it must be exerted with due regard

Page 279 U. S. 292


for the rights of witnesses, and that a witness rightfully may refuse to answer
where the bounds of the power are exceeded or where the questions asked are not
pertinent to the matter under inquiry.

It has always been recognized in this country, and it is well to remember, that few
if any of the rights of the people guarded by fundamental law are of greater
importance to their happiness and safety than the right to be exempt from all
unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their
personal and private affairs. In order to illustrate the purpose of the courts well to
uphold the right of privacy, we quote from some of their decisions.

In Kilbourn v. Thompson, 103 U. S. 168, this Court, speaking through Mr. Justice
Miller, said (p. 103 U. S. 190):

". . . We are sure that no person can be punished for contumacy as a witness before
either house unless his testimony is required in a matter into which that house has
jurisdiction to inquire, and we feel equally sure that neither of these bodies
possesses the general power of making inquiry into the private affairs of the
citizen."

And, referring to the failure of the authorizing resolution there under consideration
to state the purpose of the inquiry (p.103 U. S. 195):

"Was it to be simply a fruitless investigation into the personal affairs of


individuals? If so, the House of Representatives had no power or authority in the
matter more than any other equal number of gentlemen interested for the
government of their country. By 'fruitless,' we mean that it could result in no valid
legislation on the subject to which the inquiry referred."

In Re Pacific Railway Commission (Circuit Court, N.D., California), 32 F. 241, Mr.


Justice Field, announcing the opinion of the court, said (p. 250):

"Of all the rights of the citizen, few are of greater importance or more essential to
his peace and happiness than the right of personal security, and that involves not
merely protection

Page 279 U. S. 293


of his person from assault, but exemption of his private affairs, books, and papers
from the inspection and scrutiny of others. Without the enjoyment of this right, all
other rights would lose half their value."

And the learned Justice, referring to Kilbourn v. Thompson, supra, said (p. 253):

"This case will stand for all time as a bulwark against the invasion of the right of
the citizen to protection in his private affairs against the unlimited scrutiny of
investigation by a congressional committee."

And see concurring opinions of Circuit Judge Sawyer, p. 259 at 263, and of District
Judge Sabin, p. 268 at p. 269.

In Interstate Commerce Commission v. Brimson, 154 U. S. 447, Mr. Justice Harlan,


speaking for the Court said (p. 154 U. S. 478):

"We do not overlook these constitutional limitations which, for the protection of
personal rights, must necessarily attend all investigations conducted under the
authority of Congress. Neither branch of the legislative department, still less any
merely administrative body established by Congress, possesses or can be invested
with a general power of making inquiry into the private affairs of the citizen. . . .
We said in Boyd v. United States, 116 U. S. 616, 116 U. S. 630 -- and it cannot be
too often repeated -- that the principles that embody the essence of constitutional
liberty and security forbid all invasions on the part of the government and its
employees of the sanctity of a man's home and the privacies of his life."

Harriman v. Interstate Commerce Commission, 211 U. S. 407, illustrates the


unwillingness of this Court to construe an Act of Congress to authorize any
examination of witnesses in respect of their personal affairs. And see United States
v. Louisville & Nashville R. Co., 236 U. S. 318, 236 U. S. 335.

In Federal Trade Commission v. American Tobacco Co., 264 U. S. 298, this Court
said (pp. 264 U. S. 305-306):

"Any one who respects the spirit as well as the letter of the Fourth

Page 279 U. S. 294


Amendment would be loath to believe that Congress intended to authorize one of
its subordinate agencies to sweep all our traditions into the fire (Interstate
Commerce Commission v. Brimson, 154 U. S. 447, 154 U. S. 479), and to direct
fishing expeditions into private papers on the possibility that they may disclose
evidence of crime. We do not discuss the question whether it could do so if it tried,
as nothing short of the most explicit language would induce us to attribute to
Congress that intent. . . . It is contrary to the first principles of justice to allow a
search through all the respondents' records, relevant or irrelevant, in the hope that
something will turn up."

2. But it is clear that neither the investigation authorized by the Senate resolutions
above mentioned nor the question under consideration related merely to appellant's
private or personal affairs. Under the Constitution (Art. IV, 3), Congress has
plenary power to dispose of and to make all needful rules and regulations
respecting the naval oil reserves, other public lands, and property of the United
States. And undoubtedly the Senate had power to delegate authority to its
committee to investigate and report what had been and was being done by
executive departments under the Leasing Act, the Naval Oil Reserve Act, and the
President's order in respect of the reserves and to make any other inquiry
concerning the public domain.

While appellant caused the Mammoth Oil Company to be organized and owned all
its shares, the transaction purporting to lease to it the lands within the reserve
cannot be said to be merely or principally the personal or private affair of
appellant. It was a matter of concern to the United States. The title to valuable
government lands was involved. The validity of the lease and the means by which
it had been obtained under existing law were subjects that properly might be
investigated in order

Page 279 U. S. 295

to determine what if any legislation was necessary or desirable in order to recover


the leased lands or to safeguard other parts of the public domain.

Neither Senate Joint Resolution 54 nor the action taken under it operated to divest
the Senate or the committee of power further to investigate the actual
administration of the land laws. It may be conceded that Congress is without
authority to compel disclosures for the purpose of aiding the prosecution of
pending suits; but the authority of that body, directly or through its committees, to
require pertinent disclosures in aid of its own constitutional power is not abridged
because the information sought to be elicited may also be of use in such suits.

The record does not sustain appellant's contention that the investigation was
avowedly not in aid of legislation. He relies on the refusal of the committee to pass
the motion directing that the inquiry should not relate to controversies pending in
court and the statement of one of the members that there was nothing else to
examine appellant about. But these are not enough to show that the committee
intended to depart from the purpose to ascertain whether additional legislation
might be advisable. It is plain that investigation of the matters involved in suits
brought or to be commenced under Senate Joint Resolution 54 might directly aid in
respect of legislative action.

3. There is no merit in appellant's contention that a verdict should have been


directed for him because the evidence failed to show that the committee was
authorized to make the inquiry, summon witnesses, and administer oaths.
Resolutions 282 and 294 were sufficient until the expiration of the Sixty-Seventh
Congress during which they were adopted, but it is argued that Resolution 434 was
not effective to extend the power of the committee. As set out in the indictment and
shown by the record,

Page 279 U. S. 296

Resolution 434 does not mention 294 or refer to the date of its adoption. The
former, so far as material, follows:

"Resolved, that Senate Resolution 282, agreed to April 21, 1922, and Senate
Resolution 292, agreed to May 15, 1922, authorizing and directing the committee
on public lands and surveys to investigate the entire subject of leases upon naval
oil reserves, with particular reference to the protection of the rights and equities of
the government of the United States and the preservation of its natural resources,
and to report its findings and recommendations to the Senate . . . be . . . continued
in full force and effect until the end of the Sixty-Eighth Congress. The
committee . . . is authorized to sit . . . after the expiration of the present Congress
until the assembling of the Sixty-Eighth Congress and until otherwise ordered by
the Senate."

There is enough in that resolution to show that, where "292" appears, 294 was
meant. The subject of the investigation is specifically mentioned. That is the only
matter dealt with. The sole purpose was to authorize the committee to carry on the
inquiry. It would be quite unreasonable, if not indeed absurd, for the Senate to
direct investigation by the committee and to allow its power to summon and swear
witnesses to lapse. The context and circumstances show that Resolution 294 was
intended to be kept in force. See School District No. 11 v. Chapman, 152 F. 887,
893, 894.

4. Appellant earnestly maintains that the question was not shown to be pertinent to
any inquiry the committee was authorized to make. The United States suggests that
the presumption of regularity is sufficient without proof. But, without determining
whether that presumption is applicable to such a matter, it is enough to say that the
stronger presumption of innocence attended the accused at the trial. It was
therefore incumbent upon the United States to plead and show that the question

Page 279 U. S. 297

pertained to some matter under investigation. Appellant makes no claim that the
evidence was not sufficient to establish the innuendo alleged in respect of the
question; the record discloses that the proof on that point was ample.

Congress, in addition to its general legislative power over the public domain, had
all the powers of a proprietor, and was authorized to deal with it as a private
individual may deal with lands owned by him. United States v. Midwest Oil
Co., 236 U. S. 459, 236 U. S. 474. The committee's authority to investigate
extended to matters affecting the interest of the United States as owner as well as
to those having relation to the legislative function.

Before the hearing at which appellant refused to answer, the committee had
discovered and reported facts tending to warrant the passage of Senate Joint
Resolution 54 and the institution of suits for the cancellation of the naval oil
reserve leases. Undoubtedly it had authority further to investigate concerning the
validity of such leases, and to discover whether persons, other than those who had
been made defendants in the suit against the Mammoth Oil Company, had or might
assert a right or claim in respect of the lands covered by the lease to that company.

The contract and release made and given by Bonfils and Stack related directly to
the title to the lands covered by the lease which had been reported by the
committee as unauthorized and fraudulent. The United States proposed to recover
and hold such lands as a source of supply of oil for the Navy. S.J.Res. 54. It is clear
that the question so propounded to appellant was pertinent to the committee's
investigation touching the rights and equities of the United States as owner.

Moreover, it was pertinent for the Senate to ascertain the practical effect of recent
changes that had been made

Page 279 U. S. 298

in the laws relating to oil and other mineral lands in the public domain. The leases
and contracts charged to have been unauthorized and fraudulent were made soon
after the executive order of May 31, 1921. The title to the lands in the reserves
could not be cleared without ascertaining whether there were outstanding any
claims or applications for permits, leases, or patents under the Leasing Act or other
laws. It was necessary for the government to take into account the rights, if any
there were, of such claimants. The reference in the testimony of Bonfils to the
contract referred to in the question propounded was sufficient to put the committee
on inquiry concerning outstanding claims possibly adverse and superior to the
Mammoth Oil Company's lease. The question propounded was within the
authorization of the committee and the legitimate scope of investigation to enable
the Senate to determine whether the powers granted to or assumed by the Secretary
of the Interior and the Secretary of the Navy should be withdrawn, limited, or
allowed to remain unchanged.

5. The question of pertinency under 102 was rightly decided by the court as one
of law. It did not depend upon the probative value of evidence. That question may
be likened to those concerning relevancy at the trial of issues in court, and it is not
essentially different from the question as to materiality of false testimony charged
as perjury in prosecutions for that crime. Upon reasons so well known that their
repetition is unnecessary, it is uniformly held that relevancy is a question of law.
Greenleaf on Evidence (13th ed.) 49; Wigmore on Evidence, 2549, 2550. And
the materiality of what is falsely sworn, when an element in the crime of perjury, is
one for the court. Carroll v. United States, 16 F.2d 951; United States v.
Singleton, 54 F. 488; Cothran v. State, 39 Miss. 541, 547.

Page 279 U. S. 299

The reasons for holding relevancy and materiality to be questions of law in cases
such as those above referred to apply with equal force to the determination of
pertinency arising under 102. The matter for determination in this case was
whether the facts called for by the question were so related to the subjects covered
by the Senate's resolutions that such facts reasonably could be said to be "pertinent
to the question under inquiry." It would be incongruous and contrary to well
established principles to leave the determination of such a matter to a
jury. Interstate Commerce Commission v. Brimson, supra, p. 154 U. S.
489; Horning v. District of Columbia, 254 U. S. 135.

6. There is no merit in appellant's contention that he is entitled to a new trial


because the court excluded evidence that, in refusing to answer, he acted in good
faith on the advice of competent counsel. The gist of the offense is refusal to
answer pertinent questions. No moral turpitude is involved. Intentional violation is
sufficient to constitute guilt. There was no misapprehension as to what was called
for. The refusal to answer was deliberate. The facts sought were pertinent as a
matter of law, and 102 made it appellant's duty to answer. He was bound rightly
to construe the statute. His mistaken view of the law is no defense. Armour
Packing Co. v. United States, 209 U. S. 56, 209 U. S. 85; Standard Sanitary Mfg.
Co. v. United States, 226 U. S. 20, 226 U. S. 49.

7. The conviction on the first count must be affirmed. There were ten counts,
demurrer was sustained as to four, nolle prosequi was entered in respect of two,
and conviction was had on the first, fourth, fifth and ninth counts. As the sentence
does not exceed the maximum authorized as punishment for the offense charged in
the first count, we need not consider any other count. Abrams v. United States, 250
U. S. 616, 250 U. S. 619.
Judgment affirmed.

McGrain v. Daugherty, 273 U.S. 135 (1927)

McGrain v. Daugherty

No. 28

Argued December 5, 1924

Decided January 17, 1927

273 U.S. 135

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

Syllabus

1. Deputies, with authority to execute warrants, may be appointed by the Sergeant-


at-Arms of the Senate, under a standing order of the Senate, such appointments
being sanctioned by practice and by acts of Congress fixing the compensation of
the appointees and providing for its payment. P. 273 U. S. 154.

2. Such deputy may serve a warrant of attachment issued by the President of the
Senate and addressed only to the Sergeant-at-Arms, in pursuance of a Senate
resolution contemplating service by either. P. 273 U. S. 155.

3. A warrant of the Senate for attachment of a person who ignored a subpoena from
a Senate committee is supported by oath within the requirement of the Fourth
Amendment when based upon the committee's report of the facts of the contumacy,
made on the committee's own knowledge and having the sanction of the oath of
office of its members. P. 273 U. S. 156.

4. Subpoenas issued by a committee of the Senate to bring before it a witness to


testify in an investigation authorized by the Senate are as if issued by the Senate
itself. P. 273 U. S. 158.
5. Therefore, in case of disobedience, the fact that the subpoena, and the
contumacy related only to testimony sought by a committee is not a valid objection
to a resolution of the Senate, and warrant issued thereon, requiring the defaulting
witness to appear before the bar of the Senate itself, then and there to give the
desired testimony. P. 158.

6. Each house of Congress has power, through its own process, to compel a private
individual to appear before it or one of its committees and give testimony needed
to enable it efficiently to exercise a legislative function belonging to it under the
Constitution. P. 273 U. S. 160.

7. This has support in long practice of the houses separately, and in repeated Acts
of Congress, all amounting to a practical construction of the Constitution. Pp. 273
U. S. 161, 273 U. S. 167, 273 U. S. 174.

8. The two houses of Congress, in their separate relations, have not only such
powers as are expressly granted them by the Constitution, but also such auxiliary
powers as are necessary and appropriate

Page 273 U. S. 136

to make the express powers effective, but neither is invested with "general" power
to inquire into private affairs and compel disclosures. P. 273 U. S. 173.

9. A witness may rightfully refuse to answer where the bounds of the power are
exceeded or the questions are not pertinent to the matter under inquiry. P. 273 U. S.
176.

10. A resolution of the Senate directing a committee to investigate the


administration of the Department of Justice -- whether its functions were being
properly discharged or were being neglected or misdirected, and particularly
whether the Attorney General and his assistants were performing or neglecting
their duties in respect of the institution and prosecution of proceedings to punish
crimes and enforce appropriate remedies against the wrongdoers, specific instances
of alleged neglect being recited -- concerned a subject on which legislation could
be had which would be materially aided by the information which the investigation
was calculated to elicit. P. 273 U. S. 176.

11. It is to be presumed that the object of the Senate in ordering such an


investigation is to aid it in legislating. P. 273 U. S. 178.

12. It is not a valid objection to such investigation that it might disclose


wrongdoing or crime by a public officer named in the resolution. P. 273 U. S. 179.

13. A resolution of the Senate directing attachment of a witness who had disobeyed
a committee subpoena to such an investigation, and declaring that his testimony is
sought with the purpose of obtaining "information necessary as a basis for such
legislative and other action as the Senate may deem necessary and proper,"
supports the inference, from the earlier resolution, of a legislative object. The
suggestion of "other action" does not overcome the other part of the declaration,
and thereby invalidate the attachment proceedings. P. 273 U. S. 180.

14. In view of the character of the Senate as a continuing body, and its power to
continue or revive, with its original functions, the committee before which the
investigation herein involved was pending, the question of the legality of the
attachment of the respondent as a contumacious witness did not become moot with
the expiration of the Congress during which the investigation and the attachment
were ordered. P. 273 U. S. 180.

299 Fed. 620 reversed.

Appeal from a final order of the district court in habeas corpus discharging the
respondent, Mally S.

Page 273 U. S. 137

Daugherty, from the custody of John J. McGrain, Deputy Sergeant at Arms of the
Senate, by whom he had been arrested, as a contumacious witness, under a warrant
of attachment, issued by the President of the Senate in pursuance of a Senate
resolution.

Page 273 U. S. 150


MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.

This is an appeal from the final order in a proceeding in habeas corpus discharging
a recusant witness held in custody under process of attachment issued from the
United States Senate in the course of an investigation which it was making of the
administration of the Department of Justice. A full statement of the case is
necessary.

The Department of Justice is one of the great executive departments established by


congressional enactment, and has charge, among other things, of the initiation and
prosecution of all suits, civil and criminal, which may be brought in the right and
name of the United States to compel obedience or punish disobedience to its laws,
to recover property obtained from it by unlawful or fraudulent means, or to
safeguard its rights in other respects, and also of the assertion and protection of its
interests when it or its officers are sued by others. The Attorney General is the head
of the department, and its functions are all to be exercised under his supervision
and direction. [Footnote 1]

Harry M. Daugherty became the Attorney General March 5, 1921, and held that
office until March 28, 1924,

Page 273 U. S. 151

when he resigned. Late in that period, various charges of misfeasance and


nonfeasance in the Department of Justice after he became its supervising head
were brought to the attention of the Senate by individual senators and made the
basis of an insistent demand that the department be investigated to the end that the
practices and deficiencies which, according to the charges, were operating to
prevent or impair its right administration might be definitely ascertained and that
appropriate and effective measures might be taken to remedy or eliminate the evil.
The Senate regarded the charges as grave and requiring legislative attention and
action. Accordingly, it formulated, passed, and invited the House of
Representatives to pass (and that body did pass) two measures taking important
litigation then in immediate contemplation out of the control of the Department of
Justice and placing the same in charge of special counsel to be appointed by the
President, [Footnote 2] and also adopted a resolution authorizing and directing a
select committee of five senators:

"to investigate circumstances and facts, and report the same to the Senate,
concerning the alleged failure of Harry M. Daugherty, Attorney General of the
United States, to prosecute properly violators of the Sherman Anti-Trust Act and
the Clayton Act against monopolies and unlawful restraint of trade; the alleged
neglect and failure of the said Harry M. Daugherty, Attorney General of the United
States, to arrest and prosecute Albert B. Fall, Harry F. Sinclair, E. L. Doheny, C. R.
Forbes, and their coconspirators in defrauding the government, as well as the
alleged neglect and failure of the said Attorney General to arrest and prosecute
many others for violations of federal statutes, and his alleged failure

Page 273 U. S. 152

to prosecute properly, efficiently, and promptly, and to defend, all manner of civil
and criminal actions wherein the government of the United States is interested as a
party plaintiff or defendant. And said committee is further directed to inquire into,
investigate, and report to the Senate the activities of the said Harry M. Daugherty,
Attorney General, and any of his assistants in the Department of Justice which
would in any manner tend to impair their efficiency or influence as representatives
of the government of the United States."

The resolution also authorized the committee to send for books and papers, to
subpoena witnesses, to administer oaths, and to sit at such times and places as it
might deem advisable. [Footnote 3]

In the course of the investigation, the committee issued and caused to be duly
served on Mally S. Daugherty -- who was a brother of Harry M. Daugherty and
president of the Midland National Bank of Washington Court House, Ohio -- a
subpoena commanding him to appear before the committee for the purpose of
giving testimony bearing on the subject under investigation, and to bring with him
the

"deposit ledgers of the Midland National Bank since November 1, 1920; also note
files and transcript of owners of every safety vault; also records of income drafts;
also records of any individual account or accounts showing withdrawals of
amounts of $25,000 or over during above period."

The witness failed to appear.

A little later in the course of the investigation, the committee issued and caused to
be duly served on the same witness another subpoena, commanding him to appear
before it for the purpose of giving testimony relating to the subject under
consideration, nothing being

Page 273 U. S. 153

said in this subpoena about bringing records, books, or papers. The witness again
failed to appear, and no excuse was offered by him for either failure.

The committee then made a report to the Senate stating that the subpoenas had
been issued, that, according to the officer's returns -- copies of which accompanied
the report -- the witness was personally served, and that he had failed and refused
to appear. [Footnote 4] After a reading of the report, the Senate adopted a
resolution [Footnote 5] following these facts and proceedings as follows:

"Whereas, the appearance and testimony of the said M. S. Daugherty is material


and necessary in order that the committee may properly execute the functions
imposed upon it and may obtain information necessary as a basis for such
legislative and other action as the Senate may deem necessary and proper:
Therefore be it"

"Resolved, that the president of the Senate pro tempore issue his warrant
commanding the sergeant at arms or his deputy to take into custody the body of the
said M. S. Daugherty wherever found, and to bring the said M. S. Daugherty
before the bar of the Senate, then and there to answer such questions pertinent to
the matter under inquiry as the Senate may order the President of the Senate pro
tempore to propound, and to keep the said M. S. Daugherty in custody to await the
further order of the Senate."

It will be observed from the terms of the resolution that the warrant was to be
issued in furtherance of the effort be obtain the personal testimony of the witness,
and, like the second subpoena, was not intended to exact from him the production
of the various records, books, and papers named in the first subpoena.

The warrant was issued agreeably to the resolution, and was addressed simply to
the sergeant at arms. That

Page 273 U. S. 154

officer, on receiving the warrant, indorsed thereon a direction that it be executed by


John J. McGrain, already his deputy, and delivered it to him for execution.

The deputy, proceeding under the warrant, took the witness into custody at
Cincinnati, Ohio, with the purpose of bringing him before the bar of the Senate as
commanded, whereupon the witness petitioned the federal district court in
Cincinnati for a writ of habeas corpus. The writ was granted and the deputy made
due return, setting forth the warrant and the cause of the detention. After a hearing,
the court held the attachment and detention unlawful and discharged the witness,
the decision being put on the ground that the Senate, in directing the investigation
and in ordering the attachment, exceeded its powers under the Constitution. 299 F.
620. The deputy prayed and was allowed a direct appeal to this Court under 238
of the Judicial Code as then existing.

We have given the case earnest and prolonged consideration because the principal
questions involved are of unusual importance and delicacy. They are (a) whether
the Senate, or the House of Representatives, both being on the same plane in this
regard, has power, through its own process, to compel a private individual to
appear before it or one of its committees and give testimony needed to enable it
efficiently to exercise a legislative function belonging to it under the Constitution,
and (b) whether it sufficiently appears that the process was being employed in this
instance to obtain testimony for that purpose.

Other questions are presented which in regular course should be taken up first.

The witness challenges the authority of the deputy to execute the warrant on two
grounds -- that there was no provision of law for a deputy, and that, even if there
were such a provision, a deputy could not execute the
Page 273 U. S. 155

warrant because it was addressed simply to the sergeant at arms. We are of opinion
that neither ground is tenable.

The Senate adopted in 1889, and has retained ever since, a standing order declaring
that the sergeant at arms may appoint deputies "to serve process or perform other
duties" in his stead, that they shall be "officers of the Senate," and that acts done
and returns made by them "shall have like effect and be of the same validity as if
performed or made by the sergeant at arms in person." [Footnote 6] In actual
practice, the Senate has given full effect to the order, and Congress has sanctioned
the practice under it by recognizing the deputies -- sometimes called assistants -- as
officers of the Senate, by fixing their compensation, and by making appropriations
to pay them. [Footnote 7] Thus there was ample provision of law for a deputy.

The fact that the warrant was addressed simply to the sergeant at arms is not of
special significance. His authority was not to be tested by the warrant alone. Other
criteria were to be considered. The standing order and the resolution under which
the warrant was issued plainly contemplated that he was to be free to execute the
warrant in person or to direct a deputy to execute it. They expressed the intention
of the Senate, and the words of the warrant were to be taken, as they well could be,
in a sense which would give effect to that intention. Thus understood, the warrant
admissibly could be executed by a deputy, if the sergeant at arms so directed,
which he did.

The case of Sanborn v. Carleton, 15 Gray 339, on which the witness relies, related
to a warrant issued to the sergeant at arms in 1860, which he deputed another to
execute. At that time, there was no standing rule or

Page 273 U. S. 156

statute permitting him to act through a deputy, nor was there anything in the
resolution under which the warrant was issued indicative of a purpose to permit
him to do so. All that was decided was that, in the absence of a permissive
provision, in the warrant or elsewhere, he could not commit its execution to
another. The provision which was absent in that case and deemed essential is
present in this.

The witness points to the provision in the Fourth Amendment to the Constitution
declaring "no warrants shall issue, but upon probable cause, supported by oath or
affirmation," and contends that the warrant was void because the report of the
committee on which it was based was unsworn. We think the contention overlooks
the relation of the committee to the Senate and to the matters reported, and puts
aside the accepted interpretation of the constitutional provision.

The committee was a part of the Senate, and its members were acting under their
oath of office as senators. The matters reported pertained to their proceedings and
were within their own knowledge. They had issued the subpoenas, had received
and examined the officer's returns thereon (copies of which accompanied the
report), and knew the witness had not obeyed either subpoena, or offered any
excuse for his failure to do so.

The constitutional provision was not intended to establish a new principle, but to
affirm and preserve a cherished rule of the common law, designed to prevent the
issue of groundless warrants. In legislative practice, committee reports are
regarded as made under the sanction of the oath of office of its members, and
where the matters reported are within the committee's knowledge and constitute
probable cause for an attachment, such reports are acted on and given effect,
without requiring that they be supported by further oath or affirmation. This is

Page 273 U. S. 157

not a new practice, but one which has come down from an early period. It was well
recognized before the constitutional provision was adopted, has been followed ever
since, and appears never to have been challenged until now. Thus, it amounts to a
practical interpretation, long continued, of both the original common law rule and
the affirming constitutional provision, and should be given effect accordingly.
[Footnote 8]

The principle underlying the legislative practice has also been recognized and
applied in judicial proceedings. This is illustrated by the settled rulings that courts,
in dealing with contempts committed in their presence, may order commitments
without other proof than their own knowledge of the occurrence, [Footnote 9] and
that they may issue attachments, based on their own knowledge of the default,
where intended witnesses or jurors fail to appear in obedience to process shown by
the officer's return to have been duly served. [Footnote 10] A further illustration is
found in the rulings that grand jurors, acting under the sanction of their oath as
such, may find and return indictments based solely on their own knowledge of the
particular offenses, and that warrants may be issued on such indictments without
further oath or affirmation, [Footnote 11] and still another is found in the practice
which recognizes that, where grand jurors, under their oath as such, report to the
court that a witness brought before them has refused to testify, the

Page 273 U. S. 158

court may act on that report, although otherwise unsworn, and order the witness
brought before it by attachment. [Footnote 12]

We think the legislative practice, fortified as it is by the judicial practice, shows


that the report of the committee -- which was based on the committee's own
knowledge and made under the sanction of the oath of office of its members -- was
sufficiently supported by oath to satisfy the constitutional requirement.

The witness also points to the provision in the warrant, and in the resolution under
which it was issued, requiring that he be "brought before the bar of the Senate, then
and there" to give testimony "pertinent to the subject under inquiry," and contends
that an essential prerequisite to such an attachment was wanting, because he
neither had been subpoenaed to appear and testify before the Senate nor had
refused to do so. The argument in support of the contention proceeds on the
assumption that the warrant of attachment

"is to be treated precisely the same as if no subpoena had been issued by the
committee, and the same as if the witness had not refused to testify before the
committee."

In our opinion, the contention and the assumption are both untenable. The
committee was acting for the Senate and under its authorization, and therefore the
subpoenas which the committee issued and the witness refused to obey are to be
treated as if issued by the Senate. The warrant was issued as an auxiliary process to
compel him to give the testimony sought by the subpoenas, and its nature in this
respect is not affected by the direction that his testimony be given at the bar of the
Senate, instead of before the committee. If the Senate deemed it proper, in view of
his contumacy, to give that direction, it was at liberty to do so.

Page 273 U. S. 159

The witness sets up an interlocutory injunction granted by a state court at


Washington Court House, Ohio, in a suit brought by the Midland National Bank
against two members of the investigating committee, and contends that the
attachment was in violation of that injunction and therefore unlawful. The
contention is plainly ill founded. The injunction was granted the same day the
second subpoena was served, but whether earlier or later in the day does not
appear. All that the record discloses about the injunction is comprised in the
paragraph copied in the margin from the witness' petition for habeas corpus.
[Footnote 13] But it is apparent from what is disclosed that the injunction did not
purport to place any restraint on the witness, nor to restrain the committee from
demanding that he appear and testify personally to what he knew respecting the
subject under investigation, and also that what the injunction did purport to restrain
has no bearing on the power of the Senate to enforce that demand by attachment.

Page 273 U. S. 160

In approaching the principal questions which remain to be considered, two


observations are in order. One is that we are not now concerned with the direction
in the first subpoena that the witness produce various records, books, and papers of
the Midland National Bank. That direction was not repeated in the second
subpoena, and is not sought to be enforced by the attachment. This was recognized
by the court below, 299 F. 623, and is conceded by counsel for the appellant. The
other is that we are not now concerned with the right of the Senate to propound or
the duty of the witness to answer specific questions, for as yet no questions have
been propounded to him. He is asserting, and is standing on his assertion, that the
Senate is without power to interrogate him, even if the questions propounded be
pertinent and otherwise legitimate, which, for present purposes, must be assumed.
The first of the principal questions, the one which the witness particularly presses
on our attention, is, as before shown, whether the Senate -- or the House of
Representatives, both being on the same plane in this regard -- has power, through
its own process, to compel a private individual to appear before it or one of its
committees and give testimony needed to enable it efficiently to exercise a
legislative function belonging to it under the Constitution.

The Constitution provides for a Congress, consisting of a Senate and House of


Representatives, and invests it with "all legislative powers" granted to the United
States, and with power "to make all laws which shall be necessary and proper" for
carrying into execution these powers and "all other powers" vested by the
Constitution in the United States or in any department or officer thereof. Art. I,
secs. 1, 8. Other provisions show that, while bills can become laws only after being
considered and passed by both houses of Congress, each house is to be distinct

Page 273 U. S. 161

from the other, to have its own officers and rules, and to exercise its legislative
function independently. [Footnote 14] Art. I, 2, 3, 5, 7. But there is no provision
expressly investing either house with power to make investigations and exact
testimony to the end that it may exercise its legislative function advisedly and
effectively. So the question arises whether this power is so far incidental to the
legislative function as to be implied.

In actual legislative practice, power to secure needed information by such means


has long been treated as an attribute of the power to legislate. It was so regarded in
the British Parliament and in the colonial legislatures before the American
Revolution, and a like view has prevailed and been carried into effect in both
houses of Congress and in most of the state legislatures. [Footnote 15]

This power was both asserted and exerted by the House of Representatives in
1792, when it appointed a select committee to inquire into the St. Clair expedition
and authorized the committee to send for necessary persons, papers and records.
Mr. Madison, who had taken an important part in framing the Constitution only
five years before, and four of his associates in that work, were members of the
House of Representatives at the time, and all voted for the inquiry. 3 Cong.Ann.
494. Other exertions of the power by the House of Representatives, as also by the
Senate, are shown in the citations already made. Among those by the Senate, the
inquiry ordered in 1859 respecting the raid by John Brown and his adherents on the
armory and arsenal of the United States at Harper's Ferry is of special significance.
The resolution

Page 273 U. S. 162

directing the inquiry authorized the committee to send for persons and papers, to
inquire into the facts pertaining to the raid and the means by which it was
organized and supported, and to report what legislation, if any, was necessary to
preserve the peace of the country and protect the public property. The resolution
was briefly discussed, and adopted without opposition. Cong.Globe, 36th Cong. 1st
Sess. pp. 141, 152. Later on, the committee reported that Thaddeus Hyatt, although
subpoenaed to appear as a witness, had refused to do so, whereupon the Senate
ordered that he be attached and brought before it to answer for his refusal. When he
was brought in, he answered by challenging the power of the Senate to direct the
inquiry and exact testimony to aid it is exercising its legislative function. The
question of power thus presented was thoroughly discussed by several senators --
Mr. Sumner of Massachusetts taking the lead in denying the power, and Mr.
Fessenden of Maine in supporting it. Sectional and party lines were put aside, and
the question was debated and determined with special regard to principle and
precedent. The vote was taken on a resolution pronouncing the witness' answer
insufficient and directing that he be committed until he should signify that he was
ready and willing to testify. The resolution was adopted -- 44 senators voting for it
and 10 against. Cong.Globe, 36th Cong. 1st.Sess. pp. 1100-1109, 3006, 3007. The
arguments advanced in support of the power are fairly reflected by the following
excerpts from the debate:

"Mr. Fessenden of Maine: Where will you stop? Stop, I say, just at that point where
we have gone far enough to accomplish the purposes for which we were created,
and these purposes are defined in the Constitution. What are they? The great
purpose is legislation. There are some other things, but I speak of legislation as the
principal purpose. Now, what do we propose to do here? We

Page 273 U. S. 163


propose to legislate upon a given state of facts, perhaps, or under a given necessity.
Well, sir, proposing to legislate, we want information. We have it not ourselves. It
is not to be presumed that we know everything, and if anybody does presume it, it
is a very great mistake, as we know by experience. We want information on certain
subjects. How are we to get if? The Senator says, ask for it. I am ready to ask for it,
but suppose the person whom we ask will not give it to us. What then? Have we
not power to compel him to come before us? Is this power, which has been
exercised by Parliament and by all legislative bodies down to the present day
without dispute -- the power to inquire into subjects upon which they are disposed
to legislate -- lost to us? Are we not in the possession of it? Are we deprived of it
simply because we hold our power here under a Constitution which defines what
our duties are, and what we are called upon to do?"

"Congress have appointed committees after committees, time after time, to make
inquiries on subjects of legislation. Had we not power to do it? Nobody questioned
our authority to do it. We have given them authority to send for persons and papers
during the recess. Nobody questioned our authority. We appoint committees during
the session, with power to send for persons and papers. Have we not that authority,
if necessary to legislation?"

"* * * *"

"Sir, with regard to myself, all I have to inquire into is: is this a legitimate and
proper object, committed to me under the Constitution, and then, as to the mode of
accomplishing it, I am ready to use judiciously, calmly, moderately, all the power
which I believe is necessary and inherent, in order to do that which I am appointed
to do; and, I take it, I violate no rights, either of the people generally or of the
individual, by that course. "

Page 273 U. S. 164

"Mr. Crittenden of Kentucky: I come now to a question where the cooperation of


the two branches is not necessary. There are some things that the Senate may do.
How? According to a mode of its own. Are we to ask the other branch of the
legislature to concede by law to us the power of making such an inquiry as we are
now making? Has not each branch the right to make what inquiries and
investigation it thinks proper to make for its own action? Undoubtedly. You say we
must have a law for it. Can we have a law? Is it not, from the very nature of the
case, incidental to you as a Senate if you, as a Senate, have the power of instituting
an inquiry and of proceeding with that inquiry? I have endeavored to show that we
have that power. We have a right, in consequence of it, a necessary incidental
power, to summon witnesses if witnesses are necessary. Do we require the
concurrence of the other house to that? It is a power of our own. If you have a right
to do the thing of your own motion, you must have all powers that are necessary to
do it."

"The means of carrying into effect by law all the granted powers is given where
legislation is applicable and necessary, but there are subordinate matters, not
amounting to laws; there are inquiries of the one house or the other house, which
each house has a right to conduct, which each has, from the beginning, exercised
the power to conduct, and each has, from the beginning, summoned witnesses. This
has been the practice of the government from the beginning, and if we have a right
to summon the witness, all the rest follows as a matter of course."

The deliberate solution of the question on that occasion has been accepted and
followed on other occasions by both houses of Congress, and never has been
rejected or questioned by either.

Page 273 U. S. 165

The state courts quite generally have held that the power to legislate carries with it
by necessary implication ample authority to obtain information needed in the
rightful exercise of that power, and to employ compulsory process for the purpose.

In Burnham v. Morrissey, 14 Gray, 226, 239, the Supreme Judicial Court of


Massachusetts, in sustaining an exertion of this power by one branch of the
legislature of that commonwealth, said:

"The House of Representatives has many duties to perform, which necessarily


require it to receive evidence, and examine witnesses. . . . It has often occasion to
acquire a certain knowledge of facts in order to the proper performance of
legislative duties. We therefore think it clear that it has the constitutional right to
take evidence, to summon witnesses, and to compel them to attend and to testify.
This power to summon and examine witnesses it may exercise by means of
committees."

In Wilckens v. Willet, 1 Keyes 521, 525, a case which presented the question
whether the House of Representatives of the United States possesses this power,
the Court of Appeals of New York said:

"That the power exists there admits of no doubt whatever. It is a necessary incident
to the sovereign power of making laws, and its exercise is often indispensable to
the great end of enlightened, judicious, and wholesome legislation."

In People v. Keeler, 99 N.Y. 463, 482, 483, where the validity of a statute of New
York recognizing and giving effect to this power was drawn in question, the Court
of Appeals approvingly quoted what it had said in Wilckens v. Willet, and added:

"It is difficult to conceive any constitutional objection which can be raised to the
provisions authorizing legislative committees to take testimony and to summon

Page 273 U. S. 166

witnesses. In many cases, it may be indispensable to intelligent and effectual


legislation to ascertain the facts which are claimed to give rise to the necessity for
such legislation, and the remedy required, and irrespective of the question whether,
in the absence of a statute to that effect, either house would have the power to
imprison a recusant witness, I cannot yield to the claim that a statute authorizing it
to enforce its process in that manner is in excess of the legislative power. To await
the slow process of indictment and prosecution for a misdemeanor might prove
quite ineffectual, and necessary legislation might be obstructed, and perhaps
defeated, if the legislative body had no other and more summary means of
enforcing its right to obtain the required information. That the power may be
abused is no ground for denying its existence. It is a limited power, and should be
kept within its proper bounds, and when these are exceeded, a jurisdictional
question is presented which is cognizable in the courts. . . . Throughout this Union,
the practice of legislative bodies, and in this state, the statutes existing at the time
the present Constitution was adopted, and whose validity has never before been
questioned by our courts, afford strong arguments in favor of the recognition of the
right of either house to compel the attendance of witnesses for legislative purposes,
as one which has been generally conceded to be an appropriate adjunct to the
power of legislation, and one which, to say the least, the state legislature has
constitutional authority to regulate and enforce by statute."

Other decisions by state courts recognizing and sustaining the legislative practice
are found in Falvey v. Massing, 7 Wis. 630, 635-638; State v. Frear, 138 Wis.
173; Ex parte Parker, 74 S.C. 466, 470; Sullivan v. Hill, 73 W.Va. 49, 53; Lowe v.
Summers, 69 Mo.App. 637, 649, 650. An instructive decision on the question is
also found in Ex parte Dansereau (1875), 19 L.C.Jur. 210, where the

Page 273 U. S. 167

legislative assembly of the Province of Quebec was held to possess this power as a
necessary incident of its power to legislative.

We have referred to the practice of the two houses of Congress, and we now shall
notice some significant congressional enactments. May 3, 1798, 1 Stat. 554, c. 36,
Congress provided that oaths or affirmations might be administered to witnesses by
the President of the Senate, the Speaker of the House of Representatives, the
chairman of a committee of the whole, or the chairman of a select committee, "in
any case under their examination." February 8, 1817, 3 Stat. 345, c. 10, it enlarged
that provision so as to include the chairman of a standing committee. January 24,
1857, 11 Stat. 155, c.19, it passed "An act more effectually to enforce the
attendance of witnesses on the summons of either house of Congress, and to
compel them to discover testimony." This act provided, first, that any person
summoned as a witness to give testimony or produce papers in any matter under
inquiry before either house of Congress, or any committee of either house, who
should willfully make default or, if appearing, should refuse to answer any
question pertinent to the inquiry, should, in addition to the pains and penalties then
existing, [Footnote 16] be deemed guilty of a misdemeanor, and be subject to
indictment as there prescribed; and, secondly, that no person should be excused
from giving evidence in such an inquiry on the ground that it might tend to
incriminate or disgrace him, nor be held to answer criminally, or be subjected to
any penalty or forfeiture, for any fact or act as to which he was required to testify
excepting that he might be subjected to prosecution for perjury committed while so
testifying. January 24, 1862, c. 11, 12 Stat. 333, Congress modified the immunity
provision in particulars not material

Page 273 U. S. 168

here. These enactments are now embodied in 101-104 and 859 of Revised
Statutes. They show very plainly that Congress intended thereby (a) to recognize
the power of either house to institute inquiries and exact evidence touching
subjects within its jurisdiction and on which it was disposed to act; [Footnote 17]
(b) to recognize that such inquiries may be conducted through committees; (c) to
subject defaulting and contumacious witnesses to indictment and punishment in the
courts, and thereby to enable either house to exert the power of inquiry "more
effectually;" [Footnote 18] and (d) to open the way for obtaining evidence in such
an inquiry, which otherwise could not be obtained, by exempting witnesses
required to give evidence therein from criminal and penal prosecutions in respect
of matters disclosed by their evidence.

Four decisions of this Court are cited and more or less relied on, and we now turn
to them.

The first decision was in Anderson v. Dunn, 6 Wheat. 204. The question there was
whether, under the Constitution, the House of Representatives has power to attach
and punish a person other than a member for contempt

Page 273 U. S. 169

of its authority -- in fact, an attempt to bribe one of its members. The Court
regarded the power as essential to the effective exertion of other powers expressly
granted, and therefore as implied. The argument advanced to the contrary was that,
as the Constitution expressly grants to each house power to punish or expel its own
members and says nothing about punishing others, the implication or inference, if
any, is that power to punish one who is not a member is neither given nor intended.
The Court answered this by saying:

Page 225:
"There is not in the whole of that admirable instrument, a grant of powers which
does not draw after it others not expressed but vital to their exercise, not
substantive and independent, indeed, but auxiliary and subordinate."

Page 233:

"This argument proves too much, for its direct application would lead to the
annihilation of almost every power of Congress. To enforce its laws upon any
subject without the sanction of punishments is obviously impossible. Yet there is
an express grant of power to punish in one class of cases, and one only, and all the
punishing power exercised by Congress, in any cases, except those which relate the
piracy and offenses against the laws of nations, is derived from implication. Nor
did the idea ever occur to anyone that the express grant in one class of cases
repelled the assumption of the punishing power in any other. The truth is that the
exercise of the powers given over their own members was of such a delicate nature
that a constitutional provision became necessary to assert or communicate it.
Constituted, as that body is, of the delegates of confederated states, some such
provision was necessary to guard against their mutual jealousy, since every
proceeding against a representative would indirectly affect the honor or interests of
the state which sent him. "

Page 273 U. S. 170

The next decision was in Kilbourn v. Thompson, 103 U. S. 168. The question there
was whether the House of Representatives had exceeded its power in directing one
of its committees to make a particular investigation. The decision was that it had.
The principles announced and applied in the case are that neither house of
Congress possesses a "general power of making inquiry into the private affairs of
the citizen;" that the power actually possessed is limited to inquiries relating to
matters of which the particular house "has jurisdiction" and in respect of which it
rightfully may take other action; that, if the inquiry relates to "a matter wherein
relief or redress could be had only by a judicial proceeding," it is not within the
range of this power, but must be left to the courts, conformably to the
constitutional separation of governmental powers, and that, for the purpose of
determining the essential character of the inquiry, recourse may be had to the
resolution or order under which it is made. The Court examined the resolution
which was the basis of the particular inquiry, and ascertained therefrom that the
inquiry related to a private real estate pool or partnership in the District of
Columbia. Jay Cook & Co. had had an interest in the pool, but had become
bankrupts, and their estate was in course of administration in a federal bankruptcy
court in Pennsylvania. The United States was one of their creditors. The trustee in
the bankruptcy proceeding had effected a settlement of the bankrupts' interest in
the pool, and, of course, his action was subject to examination and approval or
disapproval by the bankruptcy court. Some of the creditors, including the United
States, were dissatisfied with the settlement. In these circumstances, disclosed in
the preamble, the resolution directed the committee

"to inquire into the matter and history of said real estate pool and the character of
said settlement, with the amount of property involved in which Jay Cooke & Co.

Page 273 U. S. 171

were interests, and the amount paid or to be paid in said settlement, with power to
send for persons and papers and report to this house."

The Court pointed out that the resolution contained no suggestion of contemplated
legislation; that the matter was one in respect to which no valid legislation could be
had; that the bankrupts' estate and the trustee's settlement were still pending in the
bankruptcy court, and that the United States and other creditors were free to press
their claims in that proceeding. And, on these grounds, the Court held that, in
undertaking the investigation,

"the House of Representatives not only exceeded the limit of its own authority, but
assumed a power which could only be properly exercised by another branch of the
government, because it was in its nature clearly judicial."

The case has been cited at times, and is cited to us now, as strongly intimating, if
not holding, that neither house of Congress has power to make inquires and exact
evidence in aid of contemplated legislation. There are expressions in the opinion
which, separately considered, might bear such an interpretation; but that this was
not intended is shown by the immediately succeeding statement (p. 103 U. S. 189)
that:
"This latter proposition is one which we do not propose to decide in the present
case, because we are able to decide it without passing upon the existence or
nonexistence of such a power in aid of the legislative function."

Next in order is In re Chapman, 166 U. S. 661. The inquiry there in question was
conducted under a resolution of the Senate and related to charges, published in the
press, that Senators were yielding to corrupt influences in considering a tariff bill
then before the Senate and were speculating in stocks the value of which would be
affected by pending amendments to the bill. Chapman appeared before the
committee in response to a subpoena, but refused to answer questions pertinent to
the inquiry, and

Page 273 U. S. 172

was indicted and convicted under the Act of 1857 for his refusal. The Court
sustained the constitutional validity of the Act of 1857, and, after referring to the
constitutional provision empowering either house to punish its members for
disorderly behavior and by a vote of two-thirds to expel a member, held that the
inquiry related to the integrity and fidelity of Senators in the discharge of their
duties, and therefore to a matter "within the range of the constitutional powers of
the Senate" and in respect to which it could compel witnesses to appear and testify.
In overruling an objection that the inquiry was without any defined or admissible
purpose, in that the preamble and resolution made no reference to any
contemplated expulsion, censure, or other action by the Senate, the Court held that
they adequately disclosed a subject matter of which the Senate had jurisdiction,
that it was not essential that the Senate declare in advance what it meditated doing,
and that the assumption could not be indulged that the Senate was making the
inquiry without a legitimate object.

The case is relied on here as fully sustaining the power of either house to conduct
investigations and exact testimony from witnesses for legislative purposes. In the
course of the opinion (p. 166 U. S. 671), it is said that disclosures by witnesses
may be compelled constitutionally "to enable the respective bodies to discharge
their legitimate functions," and that "it was to effect this that the Act of 1857 was
passed," and also:
"We grant that Congress could not divest itself, or either of its houses, of the
essential and inherent power to punish for contempt in cases to which the power of
either house properly extended; but, because Congress, by the Act of 1857, sought
to aid each of the houses in the discharge of its constitutional functions, it does not
follow that any delegation of the power in each to punish for contempt was
involved."

The terms "legitimate functions" and "constitutional functions"

Page 273 U. S. 173

are broad, and might well be regarded as including the legislative function; but, as
the case in hand did not call for any expression respecting that function, it hardly
can be be said that these terms were purposely used as including it.

The latest case is Marshall v. Gordon, 243 U. S. 521. The question there was
whether the House of Representatives exceeded its power in punishing, as for a
contempt of its authority, a person -- not a member -- who had written, published,
and sent to the chairman of one of its committees an ill tempered and irritating
letter respecting the action and purposes of the committee. Power to make inquiries
and obtain evidence by compulsory process was not involved. The Court
recognized distinctly that the House of Representatives has implied power to
punish a person not a member for contempt, as was ruled in Anderson v. Dunn,
supra, but held that its action in this instance was without constitutional
justification. The decision was put on the ground that the letter, while offensive and
vexatious, was not calculated or likely to affect the House in any of its proceedings
or in the exercise of any of its functions -- in short, that the act which was punished
as a contempt was not of such a character as to bring it within the rule that an
express power draws after it others which are necessary and appropriate to give
effect to it.

While these cases are not decisive of the question we are considering, they
definitely settle two propositions which we recognize as entirely sound and having
a bearing on its solution: one, that the two houses of Congress, in their separate
relations, possess not only such powers as are expressly granted to them by the
Constitution, but such auxiliary powers as are necessary and appropriate to make
the express powers effective, and the other that neither house is invested with
"general" power to inquire into private affairs and compel disclosures,

Page 273 U. S. 174

but only with such limited power of inquiry as is shown to exist when the rule of
constitutional interpretation just stated is rightly applied. The latter proposition has
further support in Harriman v. Interstate Commerce Commission, 211 U. S.
407,211 U. S. 417-419, and Federal Trade Commission v. American Tobacco
Co., 264 U. S. 298, 264 U. S. 305-306.

With this review of the legislative practice, congressional enactments, and court
decisions, we proceed to a statement of our conclusions on the question.

We are of opinion that the power of inquiry -- with process to enforce it -- is an


essential and appropriate auxiliary to the legislative function. It was so regarded
and employed in American legislatures before the Constitution was framed and
ratified. Both houses of Congress took this view of it early in their history -- the
House of Representatives with the approving votes of Mr. Madison and other
members whose service in the convention which framed the Constitution gives
special significance to their action -- and both houses have employed the power
accordingly up to the present time. The Acts of 1798 and 1857, judged by their
comprehensive terms, were intended to recognize the existence of this power in
both houses and to enable them to employ it "more effectually" than before. So,
when their practice in the matter is appraised according to the circumstances in
which it was begun and to those in which it has been continued, it falls nothing
short of a practical construction, long continued, of the constitutional provisions
respecting their powers, and therefore should be taken as fixing the meaning of
those provisions, if otherwise doubtful. [Footnote 19]

Page 273 U. S. 175

We are further of opinion that the provisions are not of doubtful meaning, but, as
was held by this Court in the cases we have reviewed, are intended to be
effectively exercised, and therefore to carry with them such auxiliary powers as are
necessary and appropriate to that end. While the power to exact information in aid
of the legislative function was not involved in those cases, the rule of interpretation
applied there is applicable here. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change, and where the legislative body does not
itself possess the requisite information -- which not infrequently is true -- recourse
must be had to others who do possess it. Experience has taught that mere requests
for such information often are unavailing, and also that information which is
volunteered is not always accurate or complete, so some means of compulsion are
essential to obtain what is needed. All this was true before and when the
Constitution was framed and adopted. In that period, the power of inquiry, with
enforcing process, was regarded and employed as a necessary and appropriate
attribute of the power to legislate -- indeed, was treated as inhering in it. Thus,
there is ample warrant for thinking, as we do, that the constitutional provisions
which commit the legislative function to the two houses are intended to include
this attribute to the end that the function may be effectively exercised.

The contention is earnestly made on behalf of the witness that this power of
inquiry, if sustained, may be abusively and oppressively exerted. If this be so, it
affords no ground for denying the power. The same contention might be directed
against the power to legislate, and, of course, would be unavailing. We must
assume for present purposes that neither houses will be disposed to exert the power
beyond its proper bounds, or without

Page 273 U. S. 176

due regard to the rights of witnesses. But if, contrary to this assumption,
controlling limitations or restrictions are disregarded, the decisions in Kilbourn v.
Thompson and Marshall v. Gordon point to admissible measures of relief. And it is
a necessary deduction from the decisions in Kilbourn v. Thompson and In re
Chapman that a witness rightfully may refuse to answer where the bounds of the
power are exceeded or the questions are not pertinent to the matter under inquiry.

We come now to the question whether it sufficiently appears that the purpose for
which the witness' testimony was sought was to obtain information in aid of the
legislative function. The court below answered the question in the negative and put
its decision largely on this ground, as is shown by the following excerpts from its
opinion (299 F. 638-640):

"It will be noted that, in the second resolution, the Senate has expressly avowed
that the investigation is in aid of other action than legislation. Its purpose is to
'obtain information necessary as a basis for such legislative and other action as the
Senate may deem necessary and proper.' This indicates that the Senate is
contemplating the taking of action other than legislative, as the outcome of the
investigation -- at least the possibility of so doing. The extreme personal cast of the
original resolutions; the spirit of hostility towards the then Attorney General which
they breathe; that it was not avowed that legislative action was had in view until
after the action of the Senate had been challenged, and that the avowal then was
coupled with an avowal that other action was had in view -- are calculated to create
the impression that the idea of legislative action being in contemplation was an
afterthought."

"That the Senate has in contemplation the possibility of taking action other than
legislation as an outcome of the investigation, as thus expressly avowed, would
seem

Page 273 U. S. 177

of itself to invalidate the entire proceeding. But, whether so or not, the Senate's
action is invalid and absolutely void in that, in ordering and conducting the
investigation, it is exercising the judicial function, and power to exercise that
function, in such a case as we have here, has not been conferred upon it expressly
or by fair implication. What it is proposing to do is to determine the guilt of the
Attorney General of the shortcomings and wrongdoings set forth in the resolutions.
It is 'to hear, adjudge, and condemn.' It so doing, it is exercising the judicial
function. . . ."

"What the Senate is engaged in doing is not investigating the Attorney General's
office; it is investigating the former Attorney General. What it has done is to put
him on trial before it. In so doing, it is exercising the judicial function. This it has
no power to do."
We are of opinion that the court's ruling on this question was wrong, and that it
sufficiently appears, when the proceedings are rightly interpreted, that the object of
the investigation and of the effort to secure the witness' testimony was to obtain
information for legislative purposes.

It is quite true that the resolution directing the investigation does not in terms avow
that it is intended to be in aid of legislation; but it does show that the subject to be
investigated was the administration of the Department of Justice -- whether its
functions were being properly discharged or were being neglected or misdirected,
and particularly whether the Attorney General and his assistants were performing
or neglecting their duties in respect of the institution and prosecution of
proceedings to punish crimes and enforce appropriate remedies against the
wrongdoers, specific instances of alleged neglect being recited. Plainly the subject
was one on which legislation could be had and would be materially aided by the
information which the investigation was calculated to elicit.

Page 273 U. S. 178

This becomes manifest when it is reflected that the functions of the Department of
Justice, the powers and duties of the Attorney General, and the duties of his
assistants are all subject to regulation by congressional legislation, and that the
department is maintained and its activities are carried on under such appropriations
as, in the judgment of Congress, are needed from year to year.

The only legitimate object the Senate could have in ordering the investigation was
to aid it in legislating, and we think the subject matter was such that the
presumption should be indulged that this was the real object. An express avowal of
the object would have been better; but, in view of the particular subject matter, was
not indispensable. In the Chapman case, where the resolution contained no avowal,
this Court pointed out that it plainly related to a subject matter of which the Senate
had jurisdiction, and said: "We cannot assume on this record that the action of the
Senate was without a legitimate object," and also that "it was certainly not
necessary that the resolutions should declare in advance what the Senate meditated
doing when the investigation was concluded." 166 U.S. 166 U. S. 669, 166 U. S.
670. In People v. Keeler, 99 N.Y. 463, where the Court of Appeals of New York
sustained an investigation ordered by the House of Representatives of that state
where the resolution contained no avowal, but disclosed that it definitely related to
the administration of a public office the duties of which were subject to legislative
regulation, the court said (pp. 485, 487):

"Where public institutions under the control of the state are ordered to be
investigated, it is generally with the view of some legislative action respecting
them, and the same may be said in respect of public officers."

And again:

"We are bound to presume that the action of the legislative body was with a
legitimate object, if it is capable of being so construed, and we have no right to
assume that the contrary was intended. "

Page 273 U. S. 179

While we rest our conclusion respecting the object of the investigation on the
grounds just stated, it is well to observe that this view of what was intended is not
new, but was shown in the debate on the resolution. [Footnote 20]

Of course, our concern is with the substance of the resolution, and not with any
nice questions of propriety respecting its direct reference to the then Attorney
General by name. The resolution, like the charges which prompted its adoption,
related to the activities of the department while he was its supervising officer, and
the reference to him by name served to designate the period to which the
investigation was directed.

We think the resolution and proceedings give no warrant for thinking the Senate
was attempting or intending to try the Attorney General at its bar or before its
committee for and crime or wrongdoing. Nor do we think

Page 273 U. S. 180

it a valid objection to the investigation that it might possibly disclose crime or


wrongdoing on his part.
The second resolution -- the one directing that the witness be attached -- declares
that his testimony is sought with the purpose of obtaining "information necessary
as a basis for such legislative and other action as the Senate may deem necessary
and proper." This avowal of contemplated legislation is in accord with what we
think is the right interpretation of the earlier resolution directing the investigation.
The suggested possibility of "other action" if deemed "necessary or proper" is, of
course, open to criticism in that there is no other action in the matter which would
be within the power of the Senate. But we do not assent to the view that this
indefinite and untenable suggestion invalidates the entire proceeding. The right
view, in our opinion, is that it takes nothing from the lawful object avowed in the
same resolution and rightly inferable from the earlier one. It is not as if an
inadmissible or unlawful object were affirmatively and definitely avowed.

We conclude that the investigation was ordered for a legitimate object; that the
witness wrongfully refused to appear and testify before the committee and was
lawfully attached; that the Senate is entitled to have him give testimony pertinent
to the inquiry, either at its bar or before the committee, and that the district court
erred in discharging him from custody under the attachment.

Another question has arisen which should be noticed. It is whether the case has
become moot. The investigation was ordered and the committee appointed during
the Sixty-Eighth Congress. That Congress expired March 4, 1925. The resolution
ordering the investigation in terms limited the committee's authority to the period
of the Sixty-Eighth Congress; but this apparently was changed by a later and
amendatory resolution authorizing the committee to sit at such times and places as
it might

Page 273 U. S. 181

deem advisable or necessary. [Footnote 21] It is said in Jefferson's Manual:


[Footnote 22]

"Neither house can continue any portion of itself in any parliamentary function
beyond the end of the session without the consent of the other two branches. When
done, it is by a bill constituting them commissioners for the particular purpose."
But the context shows that the reference is to the two houses of Parliament when
adjourned by prorogration or dissolution by the King. The rule may be the same
with the House of Representatives, whose members are all elected for the period of
a single Congress; but it cannot well be the same with the Senate, which is a
continuing body whose members are elected for a term of six years and so divided
into classes that the seats of one-third only become vacant at the end of each
Congress, two-thirds always continuing into the next Congress, save as vacancies
may occur through death or resignation.

Mr. Hinds, in his collection of precedents, says: "The Senate, as a continuing body,
may continue its committees through the recess following the expiration of a
Congress." [Footnote 23] And, after quoting the above statement from Jefferson's
Manuel, he says: "The Senate, however, being a continuing body, gives authority to
its committees during the recess after the expiration of a Congress." [Footnote 24]
So far as we are advised, the select committee having this investigation in charge
has neither made a final report nor been discharged; nor has it been continued by
an affirmative order. Apparently its activities have been suspended pending the
decision of this case. But, be this as it may, it is certain that the committee may be
continued or revived now by motion to that effect, and, if continued or revived,
will have all its original powers. [Footnote 25]

Page 273 U. S. 182

This being so, and the Senate being a continuing body, the case cannot be said to
have become moot in the ordinary sense. The situation is measurably like that
in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S.
498, 219 U. S. 514-516, where it was held that a suit to enjoin the enforcement of
an order of the Interstate Commerce Commission did not become moot through the
expiration of the order where it was capable of repetition by the commission and
was a matter of public interest. Our judgment may yet be carried into effect, and
the investigation proceeded with from the point at which it apparently was
interrupted by reason of the habeas corpus proceedings. In these circumstances, we
think a judgment should be rendered as was done in the case cited.

What has been said requires that the final order in the district court discharging the
witness from custody be reversed.
Final order reversed.

Sinclair v. United States, 279 U.S. 263 (1929)

Sinclair v. United States

No. 555

Argued February 18, 19, 1929

Decided April 8, 1929

279 U.S. 263

CERTIFICATE FROM THE COURT OF APPEALS

OF THE DISTRICT OF COLUMBIA

1. The chairman and any of the members of the Committee on Public Lands and
Surveys of the Senate are empowered to administer oaths to witnesses before the
committee. Rev.Stats. 101. P. 279 U. S. 291.

2. Rev.Stats. 102, prescribing punishment for refusal to answer before


congressional committees, includes witnesses who voluntarily appear without
being summoned. P. 279 U. S. 291.

3. While the power of inquiry of the respective houses of Congress is an essential


and appropriate auxiliary to the legislative function, it must be exerted with due
regard for the rights of witnesses; a witness may rightfully refuse to answer where
the bounds of the power are exceeded or where the questions asked are not
pertinent to the matter under inquiry. McGrain v. Daugherty, 273 U. S. 135. P. 279
U. S. 291.

4. A naval petroleum reserve, in charge of the Secretary of the Navy under the Act
of June 4, 1920, 41 Stat. 12, was made the subject of an executive order purporting
to give the administration and conservation of all oil and gas lands therein to the
Secretary of the Interior under the supervision of the President. The two
Secretaries, at the procurement of the defendant, leased lands in the reserve to a
company of which he owned all the shares. Questions having arisen as to the
legality and good faith of the lease and an attendant contract, and of others similar,
and also as to the future policy of the government regarding such matters, the
Senate, by resolutions, directed its committee to investigate the entire subject of
such leases, with particular reference to the protection of the rights and equities of
the United States and the preservation of its natural resources, to ascertain what, if
any, other, or additional legislation might be advisable, and to report its findings
and recommendations to the Senate. Congress, also, by joint resolution, reciting
that the lease and contract were illegal and apparently fraudulent, directed the
President to cause suit to be instituted for their cancellation, and to prosecute such
other actions, civil or criminal, as were warranted. After suit had been begun
against

Page 279 U. S. 264

his company pursuant to this resolution, and while criminal action was impending
against himself, the defendant appeared before the committee and was asked a
question which sought the facts within his knowledge concerning a contract
executed by him for his company to pay certain persons for a release of rights in
lands embraced in his company's lease. Defendant refused to answer, not upon the
ground of self-incrimination, but for the reason that the investigation and the
question were unauthorized. He was prosecuted for contumacy, under Rev.Stats.
102, and convicted.

Held:

(1) Neither the investigation authorized by the Senate's resolutions nor the question
put by the committee related merely to the defendant's private affairs. P. 279 U. S.
294.

(2) Under Art. IV, 3 of the Constitution, Congress had plenary powers to dispose
of and make all needful rules and regulations respecting the naval reserves, and the
Senate had power to delegate authority to its committee to investigate and report
what had been and was being done by executive departments under the leasing Act,
the Naval Oil Reserve Act, and the President's order in respect of the reserves, and
to make any other inquiry concerning the public domain. P. 279 U. S. 294.
(3) The validity of the lease and the means by which it had been obtained under
existing law were subjects that properly might be investigated in order to
determine what, if any, legislation was necessary or desirable in order to recover
the leased lands or to safeguard other parts of the domain. P. 279 U. S. 294.

(4) Neither the joint resolution directing legal proceedings nor the action taken
under it operated to divest the Senate or the committee of further power to
investigate the actual administration of the land laws; the authority of Congress,
directly or through its committees, to require pertinent disclosures in aid of its own
constitutional power is not abridged because the information sought to be elicited
may also be of use in such suits. P. 279 U. S. 295.

(5) A refusal of the committee to pass a motion that the examination of defendant
should not relate to controversies pending in court, and the statement of one of the
members that there was nothing else to examine him about, were not enough to
show that the committee intended to depart from the purpose to ascertain whether
additional legislation might be advisable. Investigation of the matters involved in
suits brought, or to be brought, under the joint resolution might directly aid
legislative action. P. 279 U. S. 295.

(6) A resolution of the Senate, the purpose of which, as plainly shown by the
context and circumstances, was to keep in force

Page 279 U. S. 265

through the next session of Congress an earlier resolution empowering the


committee to summon and swear witnesses, should not be denied that effect
because of mistakes in its reference to the date and number of the earlier
resolution. P.279 U. S. 295.

(7) The question propounded by the committee was pertinent to matters it was
authorized to investigate, relating (a) to the right and equities of the United States
as owner of the land leased to the defendant, and (b) to the effect of existing laws
concerning oil and other mineral lands and the need for further legislation. P. 279
U. S. 297.
5. In a prosecution for the offence of refusing to answer a question put to the
accused as a witness before a committee of the Senate (R.S. 102), the burden is
upon the United States to show that the question was pertinent to a matter under
investigation; any presumption of regularity in that regard is overcome by the
presumption of innocence attending the accused at the trial. P. 279 U. S. 296.

6. In a prosecution for refusal to answer a question before a committee of the


Senate, it is the province of the court, and not of the jury, to decide whether the
question was pertinent to the subjects covered by the Senate resolutions
authorizing the committee's investigation. P. 279 U. S. 298.

7. In such a prosecution, the fact that the accused acted in good faith on the advice
of competent counsel in refusing to answer a question put by the committee is not a
defense. P. 279 U. S. 299.

8. A judgment imposing a single sentence on several counts of an indictment may


be affirmed under one count without considering the others if the conviction as to
that count be sustained and if the maximum punishment authorized for the offense
charged in that count be not exceeded by the sentence. P. 279 U. S. 299.

Affirmed.

Review of a judgment of the Supreme Court of the District of Columbia sentencing


the defendant, under Rev.Stats. 102, for refusing to answer questions before a
committee of the Senate. The case was appealed from the trial court to the Court of
Appeals of the District. That court certified certain questions for instruction, and
this Court, by order, brought up the entire record.

Page 279 U. S. 284

MR. JUSTICE BUTLER delivered the opinion of the Court.

Appellant was found guilty of violating R.S. 102, U.S.C. Tit. 2, 192. He was
sentenced to jail for three months and to pay a fine of $500. The case was taken to
the Court of Appeals of the District of Columbia; that court certified to this Court
certain questions of law upon which it desired instruction for the proper decision of
the case. We directed the entire record to be sent up. Judicial Code, 239, U.S.C.
Tit. 28, 346.

Section 102 follows:

"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 either house, or any

Page 279 U. S. 285

committee of either house of Congress, willfully makes default, or who, having


appeared, refuses to answer any question pertinent to the question under inquiry,
shall be deemed guilty of a misdemeanor, punishable by a fine of not more than
$1,000 nor less than $100, and imprisonment in a common jail for not less than one
month nor more than twelve months."

By way of inducement, the indictment set forth the circumstances leading up to the
offense which in brief substance are as follows:

For many years, there had been progressive diminution of petroleum necessary for
the operation of naval vessels; consequently, the government was interested to
conserve the supply and especially that in the public domain.

Pursuant to the Act of June 25, 1910, 36 Stat. 847, the President, by executive
orders dated September 2, 1912, December 13, 1912, and April 30, 1915, ordered
that certain oil and gas-bearing lands in California and Wyoming be held for the
exclusive use of the Navy. These areas were designated Naval Petroleum Reserves
1, 2, and 3, respectively.

The Act of February 25, 1920, 41 Stat. 437, provided for the leasing of public lands
containing oil and other minerals. And the Act of June 4, 1920, 41 Stat. 812, 813,
directed the Secretary of the Navy of take possession of all properties in the naval
reserves "on which there are no pending claims or applications for permits or
leases under the" Leasing Act of February 25, 1920 "or pending applications for
United States patent under any law," to conserve, develop, use, and operate the
same by contract, lease, or otherwise, and to use, store, exchange or sell the oil and
gas products thereof for the benefit of the United States. And it was declared that
the rights of any claimants under the Leasing Act were not thereby adversely
affected.

Page 279 U. S. 286

May 31, 1921, the President promulgated an executive order purporting to give the
administration and conservation of all oil and gas bearing lands in the naval
reserves to the Secretary of the Interior subject to supervision by the President.

April 7, 1922, the Secretary of the Navy and the Secretary of the Interior made a
lease of lands in Reserve No. 3 to the Mammoth Oil Company. This was done by
the procurement of the appellant action as the president of the company. The lease
purported to grant to the company the right to take oil and gas and contained a
provision selling royalty oils to the company. And February 9, 1923, a
supplemental contract was made by which the company agreed to furnish storage
facilities for the Navy. Mammoth Oil Co. v. United States, 275 U. S. 13.

April 25, 1922, the same Secretaries made a contract with the Pan-American
Petroleum & Transport Company for the sale to it of royalty oils from Reserves 1
and 2. December 11, 1922, another contract was made by them. The purpose of
these agreements was to arrange that the company furnish storage facilities for the
Navy in exchange for royalty oils to be received by the United States under leases
then in force and thereafter to be made. December 11, 1922, the same Secretaries
made a lease to the Pan American Petroleum Company purporting to grant to it the
right to take oil and gas from Reserve No. 1. Pan American Co. v. United
States, 273 U. S. 456.

The lease to the Mammoth Company and the contract with the Transport Company
came to the attention of the Senate, and it was charged that there had been fraud
and bad faith in the making of them. Questions arose as to their legality, the future
policy of the government as to them, and similar leases and contracts, and as to the
necessity and desirability of legislation upon the subject.

Page 279 U. S. 287


April 29, 1922, the Senate adopted Resolution 282, calling upon the Secretary of
the Interior for information and containing the following:

"That the committee on public lands and surveys be authorized to investigate this
entire subject of leases upon naval oil reserves with particular reference to the
protection of the rights and equities of the government of the United States and the
preservation of its natural resources, and to report its findings and
recommendations to the Senate."

June 5, 1922, Resolution 282 was amended by Resolution 294 by adding a


provision that the committee

"is hereby authorized . . . to require the attendance of witnesses by subpoenas or


otherwise; to require the production of books, papers and documents. . . . The
chairman of the committee, or any member thereof, may administer oaths to
witnesses and sign subpoenas for witnesses."

February 5, 1923, the Senate passed Resolution 434, which continued in force and
effect until the end of the Sixty-Eighth Congress and until otherwise ordered,
"Senate Resolution 282 agreed to April 21 [29], 1922, and Senate Resolution 292,
agreed to May 15, 1922." (The government suggests that, instead of the resolution
last mentioned, there was meant Resolution 294 adopted June 5, 1922.)

February 7, 1924, the Senate passed Resolution 147, directing in substance the
same as it had theretofore done by the two resolutions first above mentioned and
also that the committee "ascertain what, if any, other or additional legislation may
be advisable and to report its findings and recommendations to the Senate."

The committee proceeded to exercise the authority conferred upon it, and, for that
purpose, held hearings at which witnesses were examined and documents
produced. Appellant was summoned, appeared and was sworn December 4, 1923.

Page 279 U. S. 288

And the indictment charges that, on March 22, 1924, the matters referred to in
these resolutions being under inquiry, and appellant having been summoned to give
testimony and having been sworn as aforesaid, did appear before the committee as
a witness. The first count alleges that Senator Walsh, a member of the committee,
propounded to him a question which appellant knew was pertinent to the matters
under inquiry:

"Mr. Sinclair, I desire to interrogate you about a matter concerning which the
committee had no knowledge or reliable information at any time when you had
heretofore appeared before the committee, and with respect to which you must then
have had knowledge. I refer to the testimony given by Mr. Bonfils concerning a
contract that you made with him touching the Teapot Dome. I wish you would tell
us about that."

And, to explain that question, the indictment states:

"Said Hon. Thomas J. Walsh thereby meaning and intending, as said Harry F.
Sinclair then and there well knew and understood, to elicit from him the said Harry
F. Sinclair, facts, which then were within his knowledge, touching the execution
and delivery of a certain contract bearing date September 25, 1922, made and
executed by the between said Mammoth Oil Company, one F. G. Bonfils, and one
John Leo Stack, which was executed on behalf of said Mammoth Oil Company by
said Harry F. Sinclair as President of said Mammoth Oil Company, and which,
among other things, provided for the payment, by said Mammoth Oil Company,
unto said F. G. Bonfils and said John Leo Stack, of the sum of $250,000, on or
before October 15, 1922, in consideration of the release, by said F. G. Bonfils and
said John Leo Stack, of rights to lands described in said Executive Order of April
30, 1915, and embraced in the aforesaid lease of April 7, 1922."

And that count concluded: "And that said Harry

Page 279 U. S. 289

F. Sinclair then and there unlawfully did refuse to answer said question. . . ."

Senate Joint Resolution 54 was approved February 8, 1924. 43 Stat. 5. It recited


that the leases and contracts above mentioned were executed under circumstances
indicating fraud and corruption, that they were without authority, contrary to law,
and in defiance of the settled policy of the government, and the resolution declared
that the lands embraced therein should be recovered and held for the purposes to
which they were dedicated. It directed the President to cause suit to be instituted
for the cancellation of the leases and contracts, to prosecute such other actions or
proceedings, civil and criminal, as were warranted by the facts, and authorized the
appointment of special counsel to have charge of the matter.

Prior to March 22, 1924, appellant, at the request of the committee, appeared five
times before it, and was sworn as alleged. March 19, 1924, a United States marshal
at New York served upon him a telegram, which was in form a subpoena signed by
the chairman of the committee, requiring him to appear as a witness, and he did
appear on March 22. Before any questions were put, he submitted a statement.

He disclaimed any purpose to invoke protection against self-incrimination, and


asserted there was nothing in the transaction which could incriminate him. He
emphasized his earlier appearances, testimony, production of papers, and discharge
from further attendance. He called attention to Joint Resolution 54, discussed its
provisions, and stated that a suit charging conspiracy and fraud had been
commenced against the Mammoth Company and others and that the government's
motion for injunction and receivers had been granted, and that application had been
made for a special grand jury to investigate the making

Page 279 U. S. 290

of the lease. He asserted that the committee could not then investigate the matters
covered by the authorization because the Senate, by the adoption of the joint
resolution, had exhausted its power, and Congress and the President had made the
whole matter a judicial question which was determinable only in the courts. The
statement concluded:

"I shall reserve any evidence I may be able to give for those courts to which you
and your colleagues have deliberately referred all questions of which you had any
jurisdiction and shall respectfully decline to answer any questions propounded by
your committee."
After appellant's statement, his counsel asked the privilege of presenting to the
committee reasons why it did not have authority further to take testimony of
appellant. In the course of his remarks, he said:

"Mr. Sinclair is already under oath before the committee. . . . He is on the stand
now in every sense of the word, and the objection really is to any further
examination of him on the subjects involved in this resolution."

Discussion followed, and a motion was made:

"That, in the examination, the inquiry shall not relate to pending controversies
before any of the federal courts in which Mr. Sinclair is a defendant, and which
questions would involve his defense."

During a colloquy that followed, one of the members said: "Of course, we will vote
it [the motion] down. . . . If we do not examine Mr. Sinclair about those matters,
there is not anything else to examine him about." The motion was voted down.
Then the appellant was asked the question set forth in the first count, and he said:
"I decline to answer on the advice of counsel on the same ground."

Appellant contends that his demurrer to the several counts of the indictment should
have been sustained, and that a verdict of not guilty should have been directed. To
support that contention, he argues that the questions related to his private affairs
and to matters cognizable only in the courts wherein they were pending, and that

Page 279 U. S. 291

the committee avowedly had departed from any inquiry in aid of legislation.

He maintains that there was no proof of any authorized inquiry by the committee,
or that he was legally summoned or sworn, or that the questions propounded were
pertinent to any inquiry it was authorized to make, and that, because of such
failure, he was entitled to have a verdict directed in his favor.

He insists that the court erred in holding that the question of pertinency was one of
law for the court and in not submitting it to the jury, and also erred in excluding
evidence offered to sustain his refusal to answer.
1. The committee on public lands and surveys is one of the standing committees of
the Senate. No question is raised as to the validity of its organization and existence.
Under 101 of the Revised Statutes, U.S.C. Tit. 2, 191, its chairman and any of
its members are empowered to administer oaths to witnesses before it. Section 102
plainly extends to a case where a person voluntarily appears as a witness without
being summoned, as well as to the case of one required to attend.

By our opinion in McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 173, decided


since the indictment now before us was found, two propositions are definitely laid
down:

"One, that the two houses of Congress, in their separate relations, possess not only
such powers as are expressly granted to them by the Constitution, but such
auxiliary powers as are necessary and appropriate to make the express powers
effective; and, the other, that neither house is invested with 'general' power to
inquire into private affairs and compel disclosures, but only with such limited
power of inquiry as is shown to exist when the rule of constitutional interpretation
just stated is rightly applied."

And that case shows that, while the power of inquiry is an essential and appropriate
auxiliary to the legislative function, it must be exerted with due regard

Page 279 U. S. 292

for the rights of witnesses, and that a witness rightfully may refuse to answer
where the bounds of the power are exceeded or where the questions asked are not
pertinent to the matter under inquiry.

It has always been recognized in this country, and it is well to remember, that few
if any of the rights of the people guarded by fundamental law are of greater
importance to their happiness and safety than the right to be exempt from all
unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their
personal and private affairs. In order to illustrate the purpose of the courts well to
uphold the right of privacy, we quote from some of their decisions.
In Kilbourn v. Thompson, 103 U. S. 168, this Court, speaking through Mr. Justice
Miller, said (p. 103 U. S. 190):

". . . We are sure that no person can be punished for contumacy as a witness before
either house unless his testimony is required in a matter into which that house has
jurisdiction to inquire, and we feel equally sure that neither of these bodies
possesses the general power of making inquiry into the private affairs of the
citizen."

And, referring to the failure of the authorizing resolution there under consideration
to state the purpose of the inquiry (p.103 U. S. 195):

"Was it to be simply a fruitless investigation into the personal affairs of


individuals? If so, the House of Representatives had no power or authority in the
matter more than any other equal number of gentlemen interested for the
government of their country. By 'fruitless,' we mean that it could result in no valid
legislation on the subject to which the inquiry referred."

In Re Pacific Railway Commission (Circuit Court, N.D., California), 32 F. 241, Mr.


Justice Field, announcing the opinion of the court, said (p. 250):

"Of all the rights of the citizen, few are of greater importance or more essential to
his peace and happiness than the right of personal security, and that involves not
merely protection

Page 279 U. S. 293

of his person from assault, but exemption of his private affairs, books, and papers
from the inspection and scrutiny of others. Without the enjoyment of this right, all
other rights would lose half their value."

And the learned Justice, referring to Kilbourn v. Thompson, supra, said (p. 253):

"This case will stand for all time as a bulwark against the invasion of the right of
the citizen to protection in his private affairs against the unlimited scrutiny of
investigation by a congressional committee."
And see concurring opinions of Circuit Judge Sawyer, p. 259 at 263, and of District
Judge Sabin, p. 268 at p. 269.

In Interstate Commerce Commission v. Brimson, 154 U. S. 447, Mr. Justice Harlan,


speaking for the Court said (p. 154 U. S. 478):

"We do not overlook these constitutional limitations which, for the protection of
personal rights, must necessarily attend all investigations conducted under the
authority of Congress. Neither branch of the legislative department, still less any
merely administrative body established by Congress, possesses or can be invested
with a general power of making inquiry into the private affairs of the citizen. . . .
We said in Boyd v. United States, 116 U. S. 616, 116 U. S. 630 -- and it cannot be
too often repeated -- that the principles that embody the essence of constitutional
liberty and security forbid all invasions on the part of the government and its
employees of the sanctity of a man's home and the privacies of his life."

Harriman v. Interstate Commerce Commission, 211 U. S. 407, illustrates the


unwillingness of this Court to construe an Act of Congress to authorize any
examination of witnesses in respect of their personal affairs. And see United States
v. Louisville & Nashville R. Co., 236 U. S. 318, 236 U. S. 335.

In Federal Trade Commission v. American Tobacco Co., 264 U. S. 298, this Court
said (pp. 264 U. S. 305-306):

"Any one who respects the spirit as well as the letter of the Fourth

Page 279 U. S. 294

Amendment would be loath to believe that Congress intended to authorize one of


its subordinate agencies to sweep all our traditions into the fire (Interstate
Commerce Commission v. Brimson, 154 U. S. 447, 154 U. S. 479), and to direct
fishing expeditions into private papers on the possibility that they may disclose
evidence of crime. We do not discuss the question whether it could do so if it tried,
as nothing short of the most explicit language would induce us to attribute to
Congress that intent. . . . It is contrary to the first principles of justice to allow a
search through all the respondents' records, relevant or irrelevant, in the hope that
something will turn up."

2. But it is clear that neither the investigation authorized by the Senate resolutions
above mentioned nor the question under consideration related merely to appellant's
private or personal affairs. Under the Constitution (Art. IV, 3), Congress has
plenary power to dispose of and to make all needful rules and regulations
respecting the naval oil reserves, other public lands, and property of the United
States. And undoubtedly the Senate had power to delegate authority to its
committee to investigate and report what had been and was being done by
executive departments under the Leasing Act, the Naval Oil Reserve Act, and the
President's order in respect of the reserves and to make any other inquiry
concerning the public domain.

While appellant caused the Mammoth Oil Company to be organized and owned all
its shares, the transaction purporting to lease to it the lands within the reserve
cannot be said to be merely or principally the personal or private affair of
appellant. It was a matter of concern to the United States. The title to valuable
government lands was involved. The validity of the lease and the means by which
it had been obtained under existing law were subjects that properly might be
investigated in order

Page 279 U. S. 295

to determine what if any legislation was necessary or desirable in order to recover


the leased lands or to safeguard other parts of the public domain.

Neither Senate Joint Resolution 54 nor the action taken under it operated to divest
the Senate or the committee of power further to investigate the actual
administration of the land laws. It may be conceded that Congress is without
authority to compel disclosures for the purpose of aiding the prosecution of
pending suits; but the authority of that body, directly or through its committees, to
require pertinent disclosures in aid of its own constitutional power is not abridged
because the information sought to be elicited may also be of use in such suits.
The record does not sustain appellant's contention that the investigation was
avowedly not in aid of legislation. He relies on the refusal of the committee to pass
the motion directing that the inquiry should not relate to controversies pending in
court and the statement of one of the members that there was nothing else to
examine appellant about. But these are not enough to show that the committee
intended to depart from the purpose to ascertain whether additional legislation
might be advisable. It is plain that investigation of the matters involved in suits
brought or to be commenced under Senate Joint Resolution 54 might directly aid in
respect of legislative action.

3. There is no merit in appellant's contention that a verdict should have been


directed for him because the evidence failed to show that the committee was
authorized to make the inquiry, summon witnesses, and administer oaths.
Resolutions 282 and 294 were sufficient until the expiration of the Sixty-Seventh
Congress during which they were adopted, but it is argued that Resolution 434 was
not effective to extend the power of the committee. As set out in the indictment and
shown by the record,

Page 279 U. S. 296

Resolution 434 does not mention 294 or refer to the date of its adoption. The
former, so far as material, follows:

"Resolved, that Senate Resolution 282, agreed to April 21, 1922, and Senate
Resolution 292, agreed to May 15, 1922, authorizing and directing the committee
on public lands and surveys to investigate the entire subject of leases upon naval
oil reserves, with particular reference to the protection of the rights and equities of
the government of the United States and the preservation of its natural resources,
and to report its findings and recommendations to the Senate . . . be . . . continued
in full force and effect until the end of the Sixty-Eighth Congress. The
committee . . . is authorized to sit . . . after the expiration of the present Congress
until the assembling of the Sixty-Eighth Congress and until otherwise ordered by
the Senate."

There is enough in that resolution to show that, where "292" appears, 294 was
meant. The subject of the investigation is specifically mentioned. That is the only
matter dealt with. The sole purpose was to authorize the committee to carry on the
inquiry. It would be quite unreasonable, if not indeed absurd, for the Senate to
direct investigation by the committee and to allow its power to summon and swear
witnesses to lapse. The context and circumstances show that Resolution 294 was
intended to be kept in force. See School District No. 11 v. Chapman, 152 F. 887,
893, 894.

4. Appellant earnestly maintains that the question was not shown to be pertinent to
any inquiry the committee was authorized to make. The United States suggests that
the presumption of regularity is sufficient without proof. But, without determining
whether that presumption is applicable to such a matter, it is enough to say that the
stronger presumption of innocence attended the accused at the trial. It was
therefore incumbent upon the United States to plead and show that the question

Page 279 U. S. 297

pertained to some matter under investigation. Appellant makes no claim that the
evidence was not sufficient to establish the innuendo alleged in respect of the
question; the record discloses that the proof on that point was ample.

Congress, in addition to its general legislative power over the public domain, had
all the powers of a proprietor, and was authorized to deal with it as a private
individual may deal with lands owned by him. United States v. Midwest Oil
Co., 236 U. S. 459, 236 U. S. 474. The committee's authority to investigate
extended to matters affecting the interest of the United States as owner as well as
to those having relation to the legislative function.

Before the hearing at which appellant refused to answer, the committee had
discovered and reported facts tending to warrant the passage of Senate Joint
Resolution 54 and the institution of suits for the cancellation of the naval oil
reserve leases. Undoubtedly it had authority further to investigate concerning the
validity of such leases, and to discover whether persons, other than those who had
been made defendants in the suit against the Mammoth Oil Company, had or might
assert a right or claim in respect of the lands covered by the lease to that company.
The contract and release made and given by Bonfils and Stack related directly to
the title to the lands covered by the lease which had been reported by the
committee as unauthorized and fraudulent. The United States proposed to recover
and hold such lands as a source of supply of oil for the Navy. S.J.Res. 54. It is clear
that the question so propounded to appellant was pertinent to the committee's
investigation touching the rights and equities of the United States as owner.

Moreover, it was pertinent for the Senate to ascertain the practical effect of recent
changes that had been made

Page 279 U. S. 298

in the laws relating to oil and other mineral lands in the public domain. The leases
and contracts charged to have been unauthorized and fraudulent were made soon
after the executive order of May 31, 1921. The title to the lands in the reserves
could not be cleared without ascertaining whether there were outstanding any
claims or applications for permits, leases, or patents under the Leasing Act or other
laws. It was necessary for the government to take into account the rights, if any
there were, of such claimants. The reference in the testimony of Bonfils to the
contract referred to in the question propounded was sufficient to put the committee
on inquiry concerning outstanding claims possibly adverse and superior to the
Mammoth Oil Company's lease. The question propounded was within the
authorization of the committee and the legitimate scope of investigation to enable
the Senate to determine whether the powers granted to or assumed by the Secretary
of the Interior and the Secretary of the Navy should be withdrawn, limited, or
allowed to remain unchanged.

5. The question of pertinency under 102 was rightly decided by the court as one
of law. It did not depend upon the probative value of evidence. That question may
be likened to those concerning relevancy at the trial of issues in court, and it is not
essentially different from the question as to materiality of false testimony charged
as perjury in prosecutions for that crime. Upon reasons so well known that their
repetition is unnecessary, it is uniformly held that relevancy is a question of law.
Greenleaf on Evidence (13th ed.) 49; Wigmore on Evidence, 2549, 2550. And
the materiality of what is falsely sworn, when an element in the crime of perjury, is
one for the court. Carroll v. United States, 16 F.2d 951; United States v.
Singleton, 54 F. 488; Cothran v. State, 39 Miss. 541, 547.

Page 279 U. S. 299

The reasons for holding relevancy and materiality to be questions of law in cases
such as those above referred to apply with equal force to the determination of
pertinency arising under 102. The matter for determination in this case was
whether the facts called for by the question were so related to the subjects covered
by the Senate's resolutions that such facts reasonably could be said to be "pertinent
to the question under inquiry." It would be incongruous and contrary to well
established principles to leave the determination of such a matter to a
jury. Interstate Commerce Commission v. Brimson, supra, p. 154 U. S.
489; Horning v. District of Columbia, 254 U. S. 135.

6. There is no merit in appellant's contention that he is entitled to a new trial


because the court excluded evidence that, in refusing to answer, he acted in good
faith on the advice of competent counsel. The gist of the offense is refusal to
answer pertinent questions. No moral turpitude is involved. Intentional violation is
sufficient to constitute guilt. There was no misapprehension as to what was called
for. The refusal to answer was deliberate. The facts sought were pertinent as a
matter of law, and 102 made it appellant's duty to answer. He was bound rightly
to construe the statute. His mistaken view of the law is no defense. Armour
Packing Co. v. United States, 209 U. S. 56, 209 U. S. 85; Standard Sanitary Mfg.
Co. v. United States, 226 U. S. 20, 226 U. S. 49.

7. The conviction on the first count must be affirmed. There were ten counts,
demurrer was sustained as to four, nolle prosequi was entered in respect of two,
and conviction was had on the first, fourth, fifth and ninth counts. As the sentence
does not exceed the maximum authorized as punishment for the offense charged in
the first count, we need not consider any other count. Abrams v. United States, 250
U. S. 616, 250 U. S. 619.

Judgment affirmed.
United States Court of Appeals,Eighth Circuit.

Dwight A. THOMAS, MovantAppellant v. UNITED STATES of America,


RespondentAppellee.

No. 121853.

Decided: December 16, 2013

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.C. Douglas Shull,


argued, Columbia, MO, for Appellant. Philip M. Koppe, AUSA, argued, Kansas
City, MO, for Appellee.

Dwight A. Thomas appeals the denial of his motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. 2255. Thomas alleges his trial counsel was
ineffective in failing to move to dismiss his indictment for violation of his Sixth
Amendment right to a speedy trial. The district court1 denied his motion without a
hearing. He then filed a Federal Rule of Civil Procedure 60(b) motion for relief
from the judgment, and the district court denied the motion. We affirm.

I.

A federal grand jury returned a two-count indictment against Thomas on October


5, 2004, charging him with Count 1, distributing between three and four grams of
cocaine base in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C), and Count 2,
possession with intent to distribute at least 50 grams, but not more than 150 grams
of cocaine base, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii). An arrest
warrant was promptly issued but erroneously listed Thomas's birth date. Due to this
error, Thomas was not apprehended on the indictment until February 2008, when
he was taken into custody for a separate drug incident, approximately three years
and four months after the indictment was entered.

After his arrest, the court appointed counsel to represent him. Thomas was
arraigned on February 26, 2008, and he pled not guilty to the 2004 charges. The
Government then filed an information under 21 U.S.C. 851 alleging that Thomas
had two felony drug convictions prior to the 2004 incident. The effect of the
information was to provide for a mandatory sentence of life imprisonment if
Thomas were convicted on Count 2. 21 U.S.C. 841(b)(1)(A). After trial, the jury
convicted him on both counts. The court sentenced Thomas to 240 months
imprisonment on Count 1 and life on Count 2, to run concurrently. We affirmed the
convictions and sentences. United States v. Thomas, 593 F.3d 752 (8th Cir.2010).

Thomas then moved, under 28 U.S.C. 2255, to vacate, set aside, or correct his
sentence based on a violation of his Sixth Amendment right to the effective
assistance of counsel. He alleged that counsel never discussed with him the
possibility of moving to dismiss the case based on a speedy trial violation, and the
failure to file such a motion to dismiss prejudiced him. In response, trial counsel
filed an affidavit that asserted he had discussed the option of moving to dismiss on
speedy trial grounds with Thomas, and Thomas agreed with his attorney's decision
that it was better to go to trial on the 2004 indictment than to defend against a 2008
incident for which he was arrested but had not been indicted. The attorney
reasoned that: (1) in 2004, Thomas was outside of the drug house but in 2008 he
was inside the house in which the drugs were found, (2) the informant from the
2004 case was no longer available, (3) fewer witnesses were available in the 2004
case, (4) a jury might view an older case as less important, (5) the 2004 case would
be more difficult for the government to prove, and (6) if the court dismissed the
2004 case, Thomas would be charged with the 2008 drug sale, and would have
more difficulty working out a reasonable plea agreement.

The district court denied the motion and found a hearing unnecessary because the
record conclusively showed that counsel's performance was reasonable. The court
specifically found that Thomas's claims were contradicted by the record because,
based on counsel's affidavit, Thomas agreed with the decision not to file a motion
to dismiss on speedy trial grounds. Because counsel's performance was reasonable,
the court did not consider whether the alleged ineffectiveness prejudiced Thomas.
Thomas then filed a Rule 60(b) motion for relief from the judgment, which the
district court summarily denied, and Thomas appealed. This court granted a
certificate of appealability as to Thomas's speedy-trial claim and on his Rule
60(b) claim.2

II.
Thomas argues (1) he should have been afforded an evidentiary hearing because
the files and records of the case do not conclusively establish that he is not entitled
to 28 U.S.C. 2255 relief, and (2) the district court abused its discretion in denying
his motion for relief from the judgment under Rule 60(b). We address each claim in
turn.

A.

Our review of a district court's ruling in a 28 U.S.C. 2255 proceeding is de novo


both on matters of law and on mixed questions of law and fact. United States v.
Duke, 50 F.3d 571, 576 (8th Cir.1995). We review a district court's decision to
deny an evidentiary hearing for abuse of discretion; however, we are obligated to
look behind that discretionary decision to the court's rejection of the claim on its
merits, which is a legal conclusion that we review de novo. Noe v. United States,
601 F.3d 784, 792 (8th Cir.2010) (quoting Saunders v. United States, 236 F.3d 950,
952 (8th Cir.2001)).

Evidentiary hearings on 28 U.S.C. 2255 motions are preferred, and the general
rule is that a hearing is necessary prior to the motion's disposition if a factual
dispute exists. See Grady v. United States, 269 F.3d 913, 919 (8th Cir.2001);
United States v.. Peltier, 731 F.2d 550, 554 (8th Cir.1984). The district court is not
permitted to make a credibility determination on the affidavits alone; thus if the
decision turns on credibility, the district court must conduct a hearing. Kingsberry
v. United States, 202 F.3d 1030, 103233 & n. 6 (8th Cir.2000). An evidentiary
hearing may be denied, however, if the motion, files, and records of the case
conclusively show that the movant is not entitled to relief. 28 U.S .C. 2255(b).
The court may find this conclusive showing if either (1) the [petitioner's]
allegations, accepted as true, would not entitle the [petitioner] to relief, or (2) the
allegations cannot be accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements of fact . Buster v.
United States, 447 F.3d 1130, 1132 (8th Cir.2006) (quoting Sanders v. United
States, 341 F.3d 720, 722 (8th Cir.2003)) (internal quotation marks omitted).

Thomas first argues that the district court erroneously included trial counsel's
affidavit in the files and records of the case. In 1978, this court proscribed the use
of affidavits as part of the files and records of the case when making credibility
determinations. Lindhorst v. United States, 585 F.2d 361, 365 (8th Cir.1978).
However, the subsequent Rules Governing 28 U.S.C. 2255 superceded Lindhorst
and now permit the use of affidavits. Specifically, Rule 7 provides that [a]ffidavits
also may be submitted and considered as part of the record. 28 U.S.C. 2255,
Rule 7. In addition, Rule 8 provides that the judge must review [the record] and
any materials submitted under Rule 7 to determine whether an evidentiary hearing
is warranted. 28 U.S.C. 2255, Rule 8. Under these rules, trial courts now may
consider affidavits as part of the files and records of the case. See Kingsberry, 202
F.3d at 1031 & n. 2.

Thomas next argues a hearing is warranted because he demonstrated that his


counsel was ineffective, thus, the files and records of the case do not conclusively
establish that he is not entitled to relief. Generally, to be successful on a claim of
ineffective assistance of counsel, a defendant must show both deficient
performance by counsel and prejudice to the defense caused by that performance.
Barger v. United States, 204 F.3d 1180, 1181 (8th Cir.2000) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Deficiency means that counsel's
performance fell below an objective standard of reasonableness, and prejudice
means that, but for counsel's errors, a reasonable probability exists that the result
would have been different. DeltoroAguilera v. United States, 625 F.3d 434, 437
(8th Cir.2010) (citing Strickland, 466 U.S. at 688, 694).

The defendant bears the burden to overcome the strong presumption that counsel's
performance was reasonable. Middleton v. Roper, 455 F.3d 838, 846 (8th
Cir.2006). However, strategic choices made due to a lack of preparation or
investigation are not protected by the same presumption. Strickland, 466 U.S. at
69091; Armstrong v. Kemna, 534 F.3d 857, 86465 (8th Cir.2008). An attorney is
not incompetent in exercising reasonable professional judgment even when, in
hindsight, the decision may have been a mistake. Brown v. United States, 656 F.2d
361, 363 (8th Cir.1981). But, an attorney must conduct more than a cursory
investigation. See Wiggins v. Smith, 539 U.S. 510, 527 (2003) (citing Strickland,
466 U.S. at 691); see also Nelson v. Hargett, 989 F.2d 847, 85051 (5th Cir.1993)
(finding that, on the particular facts, the failure to file a speedy trial motion was not
a reasonable trial strategy but instead appeared to be the result of ineffective
investigation).
The accused has the ultimate authority to make certain fundamental decisions
regarding the case. Jones v. Barnes, 463 U.S. 745, 751 (1983). The attorney, on
the other hand, has the responsibility of making tactical decisions of trial strategy.
Strickland, 466 U.S. at 689; Sanders v. Trickey, 875 F.2d 205, 207 (8th Cir.1989)
(noting that, when determining whether counsel's representation was deficient, a
court must avoid second-guessing trial strategy). The Supreme Court has
recognized only four fundamental choices that a defendant always has the right to
make. See Jones, 463 U.S. at 751; see also United States v.. Boyd, 86 F.3d 719,
723 (7th Cir.1996) (reasoning that, aside from the four fundamental decisions
enumerated by the Supreme Court in Jones, all other trial decisions are strategic
decisions reserved for counsel). Those fundamental choices remaining with the
defendant are the decision whether to plead guilty, waive a jury, testify in his or
her own behalf, or take an appeal. Jones, 463 U.S. at 751.

The Supreme Court has not enumerated the decision to move to dismiss for a Sixth
Amendment speedy trial violation as a fundamental choice reserved for the
defendant, Jones, 463 U.S. at 751, and such a decision does not have
characteristics similar to those in the Court's enumerated list. A defendant is
protected when trial tactics are reserved for trained counselors. See Boyd, 86 F.3d
at 723 (People charged with crime are by and large better off accepting the
decisions of experienced trial lawyers than they would be making their own
decisions; an amateur who receives professional advice is still an amateur.).

The right to a speedy trial is distinct from other rights enshrined in the Constitution
to protect the accused. Barker v. Wingo, 407 U.S. 514, 51920 (1972). The choices
enumerated in Jones are guaranteed because their deprivation prejudices the
defendant's right to defend himself. They naturally reside with the defendant
because they implicate the two most basic tenets of our legal systemthe
opportunity to have a day in court and the opportunity to have a jury of peers.
United States v. Washington, 198 F.3d 721, 724 (8th Cir.1999). Conversely, the
denial of a speedy trial, not implicating these basic tenants, does not per se
prejudice the defendant's ability to defend himself. Barker, 407 U.S. at 51920.
Whether or not a motion is made to dismiss based upon Sixth Amendment speedy
trial grounds, the defendant is guaranteed his day in court before a jury of peers. In
fact, a delay in trial sometimes may work to the defendant's advantage, as
witnesses become unavailable or memories fade, weakening the prosecution's case.

Moreover, this decision is unlike the fundamental decisions that the accused has
the right to make because it does not involve choices easily comprehensible to a
lay person. See Washington, 198 F.3d at 72324; see also Boyd, 86 F.3d at 72324
(reasoning that the decision to make a preemptory challenge is not as easily
comprehensible to a lay person and thus is reserved for the attorney). The
fundamental choices enumerated in Jones involve easily understood alternatives,
such as whether to admit guilt or assert innocence, while the decision to move to
dismiss for a speedy trial violation can involve the complicated weighing of factors
and predicting of possible outcomes. Because of the possibility of the defendant's
strategic advantage, courts apply a balancing test, instead of automatically
dismissing the indictment, when a motion is made to dismiss for speedy trial
violations. Barker, 407 U.S. at 520. Whether a violation has occurred can be
determined only after consideration of all the relevant circumstances of the case at
hand, including any prejudice to the accused and the prosecution. See generally
United States v. Lewis, 9007 F.2d 773, 774 (8th Cir.1990). In the instant case, trial
counsel's decision not to move to dismiss the indictment involved gauging the
effect of a possible dismissal on plea negotiations with respect to another incident,
comparing the possibility of success at trial on the current charges to possible
future charges, and predicting the ability of the government to effectively present a
case. This decision involves matters of strategy better reserved for the application
of a trained attorney's expertise, see Bowman v. Gammon, 85 F.3d 1339, 1345 (8th
Cir.1996) (indicating that the attorney can appropriately decide as a tactical trial
decision in the interests of his client to not move to dismiss on Speedy Trial Act
grounds). Accordingly, the decision whether to move to dismiss for a speedy trial
violation is a tactical decision of trial strategy.

In this case, trial counsel presented an affidavit identifying reasons for not moving
to dismiss the case on speedy trial grounds. Though Thomas disputes that there
was ever a meeting concerning the decision as to whether to file a motion, he does
not contest the logic of his attorney's reasoning or the depth of his investigation.
Rather, he asserts only that counsel erred in not conferring with him and that there
is no evidence that indicate[s] the failure to file a motion to dismiss was due to
any strategy. We find that the trial counsel's decision was within the wide range of
defense counsel competence demanded by the Sixth Amendment.

In conclusion, we agree with the district court that an evidentiary hearing was not
required. Even if, as Thomas claims, counsel did not confer with him as to the
decision not to move for dismissal of the indictment on speedy trial grounds, this
was a tactical decision which counsel could properly make without his client's
input. See Wainwright v. Sykes, 433 U.S. 72, 93 (1977) (Burger, C.J., concurring).
Thus, Thomas's claim fails on the first, deficiency prong under Strickland and we
do not address whether the failure to file the motion was prejudicial.

B.

Thomas also argues that the district court erred in denying his 60(b) motion for
relief from the judgment because the district court erred in including trial counsel's
affidavit in the files and records of the case. We review the denial of a Rule 60(b)
motion for abuse of discretion, which is found only when there are clearly
erroneous findings of fact or conclusions of law. Noah v. Bond Cold Storage, 408
F.3d 1043, 1045 (8th Cir.2005) (per curiam). Because, under the Rules Governing
28 U.S.C. 2255, the court properly took into account the affidavit, the district
court did not err in denying the Rule 60(b) motion.

III.

We conclude that because the decision whether to move to dismiss was a tactical
decision made within his counsel's discretion, Thomas is not entitled to relief.
Thus, an evidentiary hearing was not warranted. We also find that the district court
did not err in denying the Rule 60(b) motion.

Affirmed.

ROMERO v ESTRADA

At issue once again is Section 21, Article VI of the 1987 Constitution which
provides:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.

The Case

This is a petition for prohibition with application for temporary restraining


order (TRO) and preliminary injunction under Rule 65, assailing the
constitutionality of the invitations and other compulsory processes issued by the
Senate Committee on Labor, Employment, and Human Resources Development
(Committee) in connection with its investigation on the investment of Overseas
Workers Welfare Administration (OWWA) funds in the Smokey Mountain project.

The Facts

On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc.,
received from the Committee an invitation, [1] signed by the Legislative Committee
Secretary, which pertinently reads as follows:

Dear Mr. Romero:

Pursuant to P.S. Resolution No. 537, entitled: RESOLUTION


DIRECTING THE LABOR COMMITTEE TO INVESTIGATE, IN AID
OF LEGISLATION, THE LIABILITY FOR PLUNDER OF THE
FORMER PRESIDENT RAMOS AND OTHERS, FOR THE ILLEGAL
INVESTMENT OF OWWA FUNDS IN THE SMOKEY MOUNTAIN
PROJECT, CAUSING A LOSS TO OWWA OF P550.86
MILLION and P.S. Resolution No. 543, entitled: RESOLUTION
DIRECTING THE COMMITTEE ON LABOR AND EMPLOYMENT,
IN ITS ONGOING INQUIRY IN AID OF LEGISLATION, ON THE
ALLEGED OWWA LOSS OF P480 MILLION TO FOCUS ON THE
CULPABILITY OF THEN PRESIDENT FIDEL RAMOS, THEN
OWWA ADMINISTRATOR WILHELM SORIANO, AND R-II
BUILDERS OWNER REGHIS ROMERO II, x x x the Committee on
Labor, Employment and Human Resources Development chaired by
Sen. Jinggoy Ejercito Estrada will conduct a public hearing at 1:00
p.m. on the 23rd day of August 2006 at the Sen. G.T. Pecson Room,
2nd floor, Senate of the Philippines, Pasay City.
The inquiry/investigation is specifically intended to aid the Senate in
the review and possible amendments to the pertinent provisions
of R.A. 8042, the Migrant Workers Act and to craft a much needed
legislation relative to the stated subject matter and purpose of the
aforementioned Resolutions.

By virtue of the power vested in Congress by Section 21, Article VI


of 1987 Constitution regarding inquiries in aid of legislation, may
we have the privilege of inviting you to the said hearing to shed light
on any matter, within your knowledge and competence, covered by
the subject matter and purpose of the inquiry. Rest assured that your
rights, when properly invoked and not unfounded, will be duly
respected. (Emphasis in the original.)

In his letter-reply[2] dated August 18, 2006, petitioner Romero II requested to be


excused from appearing and testifying before the Committee at its scheduled
hearings of the subject matter and purpose of Philippine Senate (PS) Resolution
Nos. 537 and 543. He predicated his request on grounds he would later
substantially reiterate in this petition for prohibition.

On August 28, 2006, the Committee sent petitioner Romero II a letter


informing him that his request, being unmeritorious, was denied. [3] On the same
date, invitations were sent to each of the other six petitioners, then members of the
Board of Directors of R-II Builders, Inc., requesting them to attend the September
4, 2006 Committee hearing. The following day, Senator Jinggoy Estrada, as
Chairperson of the Committee, caused the service of a subpoena ad
testificandum[4] on petitioner Romero II directing him to appear and testify before
the Committee at its hearing on September 4, 2006 relative to the aforesaid Senate
resolutions. The Committer later issued separate subpoenas[5] to other petitioners,
albeit for a different hearing date.

On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No.
174105, seeking to bar the Committee from continuing with its inquiry and to
enjoin it from compelling petitioners to appear before it pursuant to the invitations
thus issued.

Failing to secure the desired TRO sought in the petition, petitioner Romero II
appeared at the September 4, 2006 Committee investigation.
Two days after, petitioner Romero II filed a Manifestation with Urgent Plea
for a TRO[6] alleging, among others, that: (1) he answered questions concerning the
investments of OWWA funds in the Smokey Mountain project and how much of
OWWAs original investment had already been paid; (2) when Senator Estrada
called on Atty. Francisco I. Chavez, as resource person, the latter spoke of the facts
and issues he raised with the Court in Chavez v. National Housing Authority,
[7]
none of which were related to the subject of the inquiry; and (3) when Senator
Estrada adjourned the investigation, he asked petitioners Romero II and Canlas to
return at the resumption of the investigation.

The manifestation was followed by the filing on September 19, 2006 of


another urgent motion for a TRO in which petitioners imputed to the Committee
the intention to harass them as, except for petitioner Romero II, none of them had
even been mentioned in relation to the subject of the investigation.

Meanwhile, respondents, in compliance with our September 5, 2006


Resolution that ordered them to submit a comment on the original plea for a TRO,
interposed an opposition,[8] observing that the Senates motives in calling for an
investigation in aid of legislation were a political question. They also averred that
the pendency of Chavez is not sufficient ground to divest the respondents of their
jurisdiction to conduct an inquiry into the matters alleged in the petition.

In this petition, petitioners in gist claim that: (1) the subject matter of the
investigation is sub judice owing to the pendency of the Chavez petition; (2) since
the investigation has been intended to ascertain petitioners criminal liability for
plunder, it is not in aid of legislation; (3) the inquiry compelled them to appear and
testify in violation of their rights against self-incrimination; and (4) unless the
Court immediately issues a TRO, some or all of petitioners would be in danger of
being arrested, detained, and forced to give testimony against their will, before the
Court could resolve the issues raised in G.R. No. 164527.

In their Comment dated October 17, 2006,[9] respondents made a distinction


between the issues raised in Chavez and the subject matter of the Senate
resolutions, nixing the notion of sub judice that petitioners raised at every possible
turn. Respondents averred that the subject matter of the investigation focused on
the alleged dissipation of OWWA funds and the purpose of the probe was to aid the
Senate determine the propriety of amending Republic Act No. 8042 or The
Migrant Workers Act of 1995 and enacting laws to protect OWWA funds in the
future. They likewise raised the following main arguments: (1) the proposed
resolutions were a proper subject of legislative inquiry; and (2) petitioners right
against self-incrimination was well-protected and could be invoked when
incriminating questions were propounded.

On December 28, 2006, petitioners filed their Reply[10] reiterating the


arguments stated in their petition, first and foremost of which is: Whether or not
the subject matter of the Committees inquiry is sub judice.

The Courts Ruling

The Court resolves to dismiss the instant petition.

The Subject Matter of the Senate Inquiry Is no Longer Sub Judice

Petitioners contend that the subject matter of the legislative inquiry is sub judice in
view of the Chavez petition.

The sub judice rule restricts comments and disclosures pertaining to judicial
proceedings to avoid prejudging the issue, influencing the court, or obstructing the
administration of justice. A violation of the sub judice rule may render one liable
for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court. [11] The
rationale for the rule adverted to is set out in Nestle Philippines v. Sanchez:
[I]t is a traditional conviction of civilized society everywhere that
courts and juries, in the decision of issues of fact and law should be
immune from every extraneous influence; that facts should be decided
upon evidence produced in court; and that the determination of such
facts should be uninfluenced by bias, prejudice or sympathies.[12]

Chavez, assuming for argument that it involves issues subject of the respondent
Committees assailed investigation, is no longer sub judice or before a court or
judge for consideration.[13] For by an en banc Resolution dated July 1, 2008, the
Court, in G.R. No. 164527, denied with finality the motion of Chavez, as the
petitioner in Chavez, for reconsideration of the Decision of the Court dated August
15, 2007. In fine, it will not avail petitioners any to invoke the sub judice effect
of Chavez and resist, on that ground, the assailed congressional invitations and
subpoenas. The sub judice issue has been rendered moot and academic by the
supervening issuance of the en banc Resolution of July 1, 2008 in G.R. No.
164527. An issue or a case becomes moot and academic when it ceases to present a
justiciable controversy, so that a determination of the issue would be without
practical use and value. In such cases, there is no actual substantial relief to which
the petitioner would be entitled and which would be negated by the dismissal of
the petition.[14] Courts decline jurisdiction over such cases or dismiss them on the
ground of mootness, save in certain exceptional instances, [15] none of which,
however, obtains under the premises.

Thus, there is no more legal obstacleon the ground of sub judice, assuming it is
invocableto the continuation of the Committees investigation challenged in this
proceeding.

At any rate, even assuming hypothetically that Chavez is still pending final
adjudication by the Court, still, such circumstance would not bar the continuance
of the committee investigation. What we said in Sabio v. Gordon suggests as much:

The same directors and officers contend that the Senate is barred
from inquiring into the same issues being litigated before the Court of
Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules
of Procedure Governing Inquiries in Aid of Legislation provide that the
filing or pendency of any prosecution or administrative action should
not stop or abate any inquiry to carry out a legislative purpose.[16]

A legislative investigation in aid of legislation and court proceedings has


different purposes. On one hand, courts conduct hearings or like adjudicative
procedures to settle, through the application of a law, actual controversies arising
between adverse litigants and involving demandable rights. On the other hand,
inquiries in aid of legislation are, inter alia, undertaken as tools to enable the
legislative body to gather information and, thus, legislate wisely and effectively;
[17]
and to determine whether there is a need to improve existing laws or enact new
or remedial legislation,[18] albeit the inquiry need not result in any potential
legislation. On-going judicial proceedings do not preclude congressional hearings
in aid of legislation. Standard Chartered Bank (Philippine Branch) v. Senate
Committee on Banks, Financial Institutions and Currencies (Standard Chartered
Bank) provides the following reason:

[T]he mere filing of a criminal or an administrative complaint


before a court or quasi-judicial body should not automatically bar the
conduct of legislative investigation. Otherwise, it would be extremely
easy to subvert any intended inquiry by Congress through the
convenient ploy of instituting a criminal or an administrative
complaint. Surely, the exercise of sovereign legislative authority, of
which the power of legislative inquiry is an essential component,
cannot be made subordinate to a criminal or administrative
investigation.

As succinctly stated in x x x Arnault v. Nazareno

[T]he power of inquirywith process to enforce itis an


essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the
legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite
informationwhich is not infrequently truerecourse must be had
to others who possess it.[19]

While Sabio and Standard Chartered Bank advert only to pending criminal
and administrative cases before lower courts as not posing a bar to the continuation
of a legislative inquiry, there is no rhyme or reason that these cases doctrinal
pronouncement and their rationale cannot be extended to appealed cases and
special civil actions awaiting final disposition before this Court.

The foregoing consideration is not all. The denial of the instant recourse is
still indicated for another compelling reason. As may be noted, PS Resolution Nos.
537 and 543 were passed in 2006 and the letter-invitations and subpoenas directing
the petitioners to appear and testify in connection with the twin resolutions were
sent out in the month of August 2006 or in the past Congress. On the postulate that
the Senate of each Congress acts separately and independently of the Senate before
and after it, the aforesaid invitations and subpoenas are considered functos
oficio and the related legislative inquiry conducted is, for all intents and purposes,
terminated. In this regard, the Court draws attention to its pronouncements
embodied in its Resolution of September 4, 2008 in G.R. No. 180643 entitled Neri
v. Senate Committee on Accountability of Public Officers and Investigations:

Certainly, x x x the Senate as an institution is continuing, as it is


not dissolved as an entity with each national election or change in the
composition of its members. However, in the conduct of its day-to-
day business, the Senate of each Congress acts separately and
independently of the Senate before it. The Rules of the Senate itself
confirms this when it states:

xxxx

SEC. 123. Unfinished business at the end of the session shall be


taken up at the next session in the same status.

All pending matters and proceedings shall terminate upon the


expiration of one (1) Congress, but may be taken by the
succeeding Congress as if present[ed] for the first time.

Undeniably from the foregoing, all pending matters and


proceedings, i.e., unpassed bills and even legislative investigations,
of the Senate of a particular Congress are considered
terminated upon the expiration of that Congress and it is
merely optional on the Senate of the succeeding Congress to take
up such unfinished matters, not in the same status, but as if
presented for the first time. The logic and practicality of such rule is
readily apparent considering that the Senate of the succeeding
Congress (which will typically have a different composition as that of
the previous Congress) should not be bound by the acts and
deliberations of the Senate of which they had no part. x x x (Emphasis
added.)

Following the lessons of Neri, as reiterated in Garcillano v. The House of


Representatives Committees on Public Information, Public Order and Safety, et al.,
[20]
it can very well be stated that the termination of the assailed investigations has
veritably mooted the instant petition. This disposition becomes all the more
impeccable, considering that the Senate of the present Congress has not, per
available records, opted to take up anew, as an unfinished matter, its inquiry into
the investment of OWWA funds in the Smokey Mountain project.

With the foregoing disquisition, the Court need not belabor the other issues
raised in this recourse. Suffice it to state that when the Committee issued
invitations and subpoenas to petitioners to appear before it in connection with its
investigation of the aforementioned investments, it did so pursuant to its authority
to conduct inquiries in aid of legislation. This is clearly provided in Art. VI, Sec.
21 of the Constitution, which was quoted at the outset. And the Court has no
authority to prohibit a Senate committee from requiring persons to appear and
testify before it in connection with an inquiry in aid of legislation in accordance
with its duly published rules of procedure.[21] Sabio emphasizes the importance of
the duty of those subpoenaed to appear before the legislature, even if incidentally
incriminating questions are expected to be asked:

Anent the right against self-incrimination, it must be


emphasized that [this right may be] invoked by the said directors and
officers of Philcomsat x x x only when the incriminating question is
being asked, since they have no way of knowing in advance the
nature or effect of the questions to be asked of them. That this
right may possibly be violated or abused is no ground for denying
respondent Senate Committees their power of inquiry. The
consolation is that when this power is abused, such issue may be
presented before the courts.

xxxx

Let it be stressed at this point that so long as the constitutional


rights of witnesses x x x will be respected by respondent Senate
Committees, it [is] their duty to cooperate with them in their efforts to
obtain the facts needed for intelligent legislative action. The
unremitting obligation of every citizen is to respond to subpoenae,
to respect the dignity of the Congress and its Committees, and to
testify fully with respect to matters within the realm of proper
investigation.[22] (Emphasis supplied.)

As a matter of long and sound practice, the Court refrains from touching on the
issue of constitutionality except when it is unavoidable and is the very lis
mota[23] of the controversy. So it must be here. Indeed, the matter of the
constitutionality of the assailed Committee invitations and subpoenas issued vis--
vis the investigation conducted pursuant to PS Resolution Nos. 537 and 543 has
ceased to be a justiciable controversy, having been rendered moot and academic by
supervening events heretofore indicated. In short, there is no more investigation to
be continued by virtue of said resolutions; there is no more investigation the
constitutionality of which is subject to a challenge.

WHEREFORE, the petition is DENIED.

No pronouncement as to costs.
.R. No. L-6749 July 30, 1955

JEAN L. ARNAULT, petitioner-appellee,


vs.
EUSTAQUIO BALAGTAS, as Director of Prisons, respondent-appellant.

Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General


Guillermo E. Torres and Solicitor Jaime De Los Angeles for appellant.
Estanislao A. Fernandez and Roman B. Antonio for appellee.

LABRADOR, J.:

This an appeal from judgment of the Court of First Instance of Rizal, Pasay City
Branch, Honorable Jose F. Flores presiding, in habeas corpus proceeding,
declaring that the continued detention and confinement of Jean L. Arnault in the
new Bilibid Prison, in pursuance of Senate Resolution No. 114, dated November 8,
1952, is illegal, for the reason that the Senate of the Philippines committed a clear
abuse of discretion in considering his answer naming one Jess D. Santos as the
person to whom delivery of the sum of P440,000 was made in the sale of the
Buenavista and Tambobong Estate, as a refusal to answer the question directed by
the Senate committee to him, and on the further ground that said Jean L. Arnault,
by his answer has purged himself of contempt and is consequently entitled to be
released and discharged.

Petitioner-appellee was an attorney in-fact or Ernest H. Burt in the negotiations for


the purchase of the Buenavista and Tambobong Estates by the Government of the
Philippines. The purchase was effected on October 21, 1949 and the price paid for
both estates was P5,000,000. On February 27, 1950, the Senate of the Philippines
adopted Resolution No. 8, whereby it created a Special Committee to determine
"whether the said purchase was honest, valid and proper, and whether the price
involved in the deal was fair and just, the parties responsible therefor, any other
facts the Committee may deem proper in the premises." In the investigation
conducted by the Committee in pursuance of said Resolution, petitioner-appellee
was asked to whom a part of the purchase price, or P440,000, was delivered.
Petitioner-appellee refused to answer this question, whereupon the Committee
resolved on May 15, 1950, to order his commitment to the custody of the Sergeant
at-arms of the Philippines Senate and imprisoned in the new Bilibid Prison in Rizal
until such time when he shall reveal to the Senate or to the Special Committee the
name of the person who received the P440,000 and to answer questions pertinent
thereto. In G.R. No. L-3820, petitioner-appellee herein questioned the validity of
the confinement so ordered, by a petition for certiorari filed in this Court. He
contended that the Senate of the Philippines has no power to punish him for
contempt for refusing to reveal the name of the person to whom he delivered
P440,000., that the Legislature lacks authority to punish him for contempt beyond
the term of the legislative session, and that the question of the Senate which he
refused to answer is an incriminating question which the appellee is not bound to
answer. All the abovementioned contentions were adversely passed upon by the
decision of this Court, so his petition for release was denied.

In the month of December, 1951, while still in confinement in Bilibid, petitioner-


appellee executed an affidavit, Exhibit A, wherein he gives in detail the history of
his life, the events surrounding acquisition of the Buenavista and Tambobong
Estates by Gen. Burt, the supposed circumstances under which he met one by the
name of Jess D. Santos. Upon the presentation of the said affidavit to the said
Senate Special Committee, the latter subjected petitioner to questioning regarding
the identity of Jess D. Santos, and after said investigation and questioning the
Committee adopted Resolution No. 114 on November 8, 1952. This Resolution
reads as follows:

RESOLUTION APPROVING THE REPORT OF THE SPECIAL


COMMITTEE TO INVESTIGATE THE BUENAVISTA AND
TAMBOBONG ESTATES DEAL, AND ORDERING THE DIRECTOR OF
PRISON TO CONTINUE HOLDING JEAN L. ARNAULT IN HIS
CUSTODY, AND IN CONFINEMENT AND DETENTION AT THE NEW
BILIBID PRISON AT MUNTINLUPA, RIZAL, UNTIL THE SAID
ARNAULT SHALL HAVE PURGED HIMSELF OF CONTEMPT OF THE
SENATE.

WHEREAS, on the 15th May 1950 the Senate of the Philippines,


transcending divisions of party and faction in the national interest, adopted a
Resolution ordering the detention and confinement of Jean L. Arnault at the
New Bilibid Prison in Muntinlupa, Rizal, until he should have purged
himself of contempt of the Senate by revealing the person to whom he gave
the sum of P440,000 in connection with the Buenavista and Tambobong
Estates deal, and by answering other pertinent questions in connection
therewith;

WHEREAS, after considering the lengthy testimony offered by the said Jean
L. Arnault, and the report thereon rendered by the Senate Special Committee
on the said deal, the Senate holds and finds that, despite numerous and
generous opportunities offered to him at his own instance and solicitation,
the said Jean L. Arnault has failed and refused, and continues to fail and
refuse, to reveal the person to whom he gave the said amount of P440,000,
and to answer other pertinent questions in connection with the Buenavista
and Tambobong estates deal;

WHEREAS, the Senate holds and finds that the situation of the said Jean L.
Arnault has not materially changed since he was committed to prison for
contempt of the Senate, and since the Supreme Court of the Philippines, in a
judgment long since become final, upheld the power and authority of the
Senate to hold the said Jean L. Arnault in custody, detention, and
confinement, said power and authority having been held to be coercive
rather than punitive, and fully justified until the said Jean L. Arnault should
have given the information which he had withheld and continues
contumaciously to withhold;

WHEREAS, the insolent and manifest untruthful statements made by the


said Jean L. Arnault on the occasions above referred to constitute a
continuing contempt of the Senate, and an added affront to its dignity and
authority, such that , were they to be condoned or overlooked, the power and
authority of the Senate to conduct investigations would become futile and
ineffectual because they could be defied by any person of sufficient
stubbornness and malice;

WHEREAS, the Senate holds and finds that the identity of the person to
whom the said Jean L. Arnault gave the amount of P440,000 in connection
with the Buenavista and Tambobong estates deal, and the further information
which the Senate requires and which the said Jean L. Arnault arrogantly and
contumaciously withholds, is required for the discharge of its legislative
functions, particularly so that adequate measures can be taken to prevent the
repetition of similar frauds upon the Government and the People of the
Philippines and to recover said amount; and

WHEREAS, while not insensible to the appeal of understanding and mercy,


the Senate holds and finds that the said Jean L. Arnault, by his insolent and
contumacious defiance of the legitimate authority of the Senate, is trifling
with its proceedings, renders himself unworthy of mercy, and, in the
language of the Supreme Court, is his own jailer, because he could open the
doors of his prison at any time by revealing the truth; now therefore, be it

Resolved by the Senate of the Philippines, That the Senate hold and find, as
it hereby holds and finds, that Juan L. Arnault has not purged himself of
contempt of the Senate, and has in no way altered his situation since he has
committed to coercive not punitive, imprisonment for such contempt on the
15th day of May, 1950; and that Senate order, as it hereby orders, the
Director of Prisons to hold the said Jean L. Arnault, in his custody, and in
confinement and detention at the New Bilibid Prison in Muntinlupa, Rizal,
in coercive imprisonment, until he should have purged himself of the
aforesaid contempt to the satisfaction, and until order to that effect, of the
Senate of the Philippines or of its Special Committee to investigate the
Buenavista and Tambobong Estates deal.

Adopted, November 8, 1952 . (Exhibit 0)

In his petition for the writ of habeas corpus in the Court of First Instance,
petitioner-appellee alleges: (1) That the acquisition by the Government, through
the Rural Progress Administration, of the Buenavista and Tambobong Estates was
not illegal nor irregular nor scandalous nor malodorous, but was in fact beneficial
to the Government; (2) that the decision of this Court in G. R. No. L-3820 declared
that the Senate did not imprison Arnault "beyond proper limitations", i.e., beyond
the period longer than arresto mayor, as this is the maximum penalty that can be
imposed under the provisions of Article 150 of the Revised Penal Code; (3) that
petitioner-appellee purged himself of the contempt charges when he disclosed the
fact that the one to whom he gave the P440,000 was Jess D. Santos, and submitted
evidence in corroboration thereof; (4) that the Senate is not justified in finding that
the petitioner-appellee did tell the truth when he mentioned Jess D. Santos as the
person to whom he gave the P440,000, specially on the basis of the evidence
submitted to it; (5) that the legislative purpose or intention, for which the Senate
ordered the confinement may be considered as having been accomplished, and,
therefore, there is no reason for petitioner-appellee's continued confinement.

The claim that the purchase of the Buenavista and Tambobong Estates is beneficial
to the government and is neither illegal nor irregular is beside the point. To our
minds, two questions are decisive of this case. The first is: Did the Senate Special
Committee believe the statement of the petitioner-appellee that the person to whom
he gave the P440,000 is one by the name of Jess D. Santos and if it did not, may
the court review said finding? And the second is: If the Senate did not believe the
statement, is the continued confinement and detention of the petitioner-appellee, as
ordered in Senate Resolution of November 8, 1952, valid?

On the first question, the Senate found as a fact that petitioner "has failed and
refused, and continues to fail and refuse, to reveal the person to whom he gave the
amount of P440,000" and that the situation of petitioner "has not materially
charged since he was committed to prison." In the first resolution of the Senate
Special Committee of May 15, 1950, it found that petitioner "refused to reveal the
name of the persons to whom he gave the P440,000, as well as to answer other
pertinent questions related to said amount." It is clear and evident that the Senate
Committee did not believe petitioner's statement that the person to whom he
delivered the abovementioned amount is one by the name of Jess D. Santos. The
court a quo, however, arrogating unto itself the power to review such finding, held
that the "petitioner has satisfactorily shown that the person of Jess D. Santos
actually and physically existed in the human flesh," that the opinion or conclusion
of the Senate Committee is not borne to out by the evidence produced at the
investigation, that the Senate abused its discretion in making its conclusion and
that under these circumstances the only thing that could in justice be done to
petitioner is to order his release and have his case endorsed to the prosecution
branch of the judicial department for investigation and prosecution as the
circumstances warrant.
There is an inherent fundamental error in the course of action that the lower court
followed. It assumed that courts have the right to review the findings of legislative
bodies in the exercise of the prerogative of legislation, or interfere with their
proceedings or their discretion in what is known as the legislative process.

The courts avoid encroachment upon the legislature in its exercise of


departmental discretion in the means used to accomplish legitimate
legislative ends. Since the legislature is given a large discretion in reference
to the means it may employ to promote the general welfare, and alone may
judge what means are necessary and appropriate to accomplish an end which
the Constitution makes legitimate, the courts cannot undertake to decide
whether the means adopted by the legislature are the only means or even the
best means possible to attain the end sought, for such course would best the
exercise of the police power of the state in the judicial department. It has
been said that the methods, regulations, and restrictions to be imposed to
attain results consistent with the public welfare are purely of legislative
cognizance, and the determination of the legislature is final, except when so
arbitrary as to be violative of the constitutional rights of the citizen.
Furthermore, in the absence of a clear violation of a constitutional inhibition,
the courts should assume that legislative discretion has been properly
exercised. (11 Am. Jur., pp. 901-902).

These the judicial department of the government has no right or power or authority
to do, much in the same manner that the legislative department may not invade the
judicial realm in the ascertainment of truth and in the application and interpretation
of the law, in what is known as the judicial process, because that would be in direct
conflict with the fundamental principle of separation of powers established by the
Constitution. The only instances when judicial intervention may lawfully be invoke
are when there has been a violation of a constitutional inhibition, or when there has
been an arbitrary exercise of the legislative discretion.

Under our constitutional system, the powers of government are distributed


among three coordinate and substantially independent organs: the legislative,
the executive and the judicial. Each of these departments of the government
derives its authority from the Constitution which, in turn, is the highest
expression of the popular will. Each has exclusive cognizance of the matters
within its jurisdiction, and is supreme within its own sphere. (People of the
Philippine Islands, et al. vs. Vera, et al 65 Phil., 56; See also Angara vs.
Electoral Commission, 63 Phil., 139)

All that the courts may do, in relation to the proceedings taken against petitioner
prior to his incarceration, is to determine if the constitutional guarantee of due
process has been accorded him before his incarceration by legislative order, and
this because of the mandate of the Supreme Law of the land that no man shall be
deprived life, liberty or property without due process of law. In the case at bar such
right has fully been extended the petitioner, he having been given the opportunity
to be heard personally and by counsel in all the proceedings prior to the approval
of the Resolution ordering his continued confinement.

The second question involves in turn the following propositions: Does the
Philippine Senate have the power and authority to pass its resolution ordering the
continued confinement of the petitioner? In the supposition that such power and
authority exist, was such power legitimately exercised after the petitioner had
given the name Jess D. Santos? A study of the text of the resolution readily shows
that the Senate found that the petitioner-appellee did not disclose, by the mere
giving of the name Jess D. Santos, the identity of the person to whom the sum of
P440, 000 was delivered, and, in addition thereto that petitioner withheld said
identity arrogantly and contumaciously in continued affront of the Senate's
authority and dignity. Although the resolution studiously avoids saying that the
confinement is a punishment, but merely seeks to coerce the petitioner into telling
the truth, the intention is evident that the continuation of the imprisonment ordered
is in fact partly unitive. This may be inferred from the confining made in the
resolution that petitioner-appellee's acts were arrogant and contumacious and
constituted an affront to the Senate's dignity and authority. In a way, therefore, the
petitioner's assumption that the imprisonment is punitive is justified by the
language of the resolution, wherefore the issue now before Us in whether the
Senate has the power to punish the contempt committed against it under the
circumstances of the case. This question is thus squarely presented before Us for
determination.
In the previous case of this same petitioner decided by this Court, G. R. No. L-
38201, Arnault vs. Nazareno, et al. (46 Off. Gaz., No. 7, 3100), it was admitted and
we had ruled that the Senate has the authority to commit a witness if he refuses to
answer a question pertinent to a legislative inquiry, to compel him to give the
information, i.e., by reason of its coercive power, not its punitive power. It is now
contended by petitioner that if he committed an offense of contempt or perjury
against the legislative body, because he refused to reveal the identity of the person
in accordance with the demands of the Senate Committee, the legislature may not
punish him, for the punishment for his refusal should be sought through the
ordinary processes of the law, i. e., by the institution of a criminal action in a court
of justice.

American legislative bodies, after which our own is patterned, have the power to
punish for contempt if the contempt has had the effect of obstructing the exercise
by the legislature of, or deterring or preventing it from exercising, its legitimate
functions (Annotation to Jurney vs. MacCraken, 79 L. ed. 814). While the power of
the United States Senate to punish for contempt was not clearly recognized in its
earlier decision (See Marshal vs. Gordon, 61 L. ed. 881), the Supreme Court of the
United States two decades ago held that such power and authority exist. In the case
of Jurney vs. MacCraken (294 U. S. 123, 79 L. ed. 802), the question before it was
whether or not the Senate could order the confinement of a private citizen because
of the destruction and removal by him of certain papers required to be produced.
The court said:

First, The main contention of MacCracken is that the so-called power to


punish for contempt may never be exerted, in the case of a private citizen,
solely qua punishment. The argument is that the power may be used by the
legislative body merely as a means of removing an existing obstruction to
the performance of its duties; that the power to punish ceases as soon as the
obstruction has been removed, or its removal has become impossible; and
hence that there is no power to punish a witness who, having been requested
to produce papers, destroys them after service of the subpoena. The
contention rests upon a misconception of the limitations upon the power of
the Houses of Congress to punish for contempt. It is true that the scope of
the power is narrow. No act is so punishable unless it is of a nature to
obstruct the performance of the duties of the legislature. This may be lack of
power, because, as in Kilbourn vs. Thompson, 103 U. S. 168, 26 L. ed. 377,
there was no legislative duty to be performed; or because, as in Marshall vs.
Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F, 279,
Ann. Cas. 1918B, 371, the act complained of is deemed not to be of a
character to obstruct the legislative process. But, where the offending act
was of a nature to obstruct the legislative process, the fact that the
obstruction has since been removed, or that its removal has become
impossible is without legal significance.

The power to punish a private citizen for a past and completed act was
exerted by Congress as early as 1795; and since then it has been exercised
on several occasions. It was asserted, before the Revolution, by the colonial
assemblies, in intimation of the British House of Commons; and afterwards
by the Continental Congress and by state legislative bodies. In
Anderson vs. Dunn, 6 Wheat, 204, 5 L. ed. 242, decided in 1821, it was held
that the House had power to punish a private citizen for an attempt to bribe a
member. No case has been found in which an exertion of the power to
punish for contempt has been successfully challenged on the ground that,
before punishment, the offending act had been consummated or that the
obstruction suffered was irremediable. The statement in the opinion in
Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A.
1917F. 279 Ann. Cas. 1918B, 371, supra, upon which MacCracken relies,
must be read in the light of the particular facts. It was there recognized that
the only jurisdictional test to be applied by the court is the character of the
offense; and that the continuance of the obstruction, or the likelihood of its
repetition, are considerations for the discretion of the legislators in meting
out the punishment.

Here, we are concerned not with an extention of congressional privilege, but


with vindication of the established and essential privilege of requiring the
production of evidence. For this purpose, the power to punish for a past
contempt is an appropriate means. Compare Ex parte Nugent (C. C.) 1
Brunner, Col. Cas. 296, Fed. Cas No. 10375; Steward vs. Bleine, 1 MacArth.
453. The apprehensions expressed from time to time in congressional
debates, in opposition to particular exercise of the contempt power
concerned, not the power to punish, as such, but the broad, undefined
privileges which it was believed might find sanction in that power. The
ground for such fears has since been effectively removed by the decisions of
this Court which hold that assertions of congressional privilege are subject
to judicial review. Melbourn vs. Thompson, 103 U. S. 168, 26 L. ed.
377, supra; and that the power to punish for contempt may not be extended
to slanderous attacks which presents no immediate obstruction to legislative
processes. Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448,
L.R. A. 1917F, Ann. Cas. 1918B, 731 supra.

The principle that Congress or any of its bodies has the power to punish
recalcitrant witnesses is founded upon reason and policy. Said power must be
considered implied or incidental to the exercise of legislative power, or necessary
to effectuate said power. How could a legislative body obtain the knowledge and
information on which to base intended legislation if it cannot require and compel
the disclosure of such knowledge and information, if it is impotent to punish a
defiance of its power and authority? When the framers of the Constitution adopted
the principle of separation of powers, making each branch supreme within the
realm of its respective authority, it must have intended each department's authority
to be full and complete, independently of the other's authority and power. And how
could the authority and power become complete if for every act of refusal, every
act of defiance, every act of contumacy against it, the legislative body must resort
to the judicial department for the appropriate remedy, because it is impotent by
itself to punish or deal therewith, with the affronts committed against its authority
or dignity. The process by which a contumacious witness is dealt with by the
legislature in order to enable it to exercise its legislative power or authority must
be distinguished from the judicial process by which offenders are brought to the
courts of justice for the meting of the punishment which the criminal law imposes
upon them. The former falls exclusively within the legislative authority, the latter
within the domain of the courts; because the former is a necessary concommitant
of the legislative power or process, while the latter has to do with the enforcement
and application of the criminal law.
We must also and that provided the contempt is related to the exercise of the
legislative power and is committed in the course of the legislative process, the
legislature's authority to deal with the defiant and contumacious witness should be
supreme, and unless there is a manifest and absolute disregard of discretion and a
mere exertion of arbitrary power coming within the reach of constitutional
limitations, the exercise of the authority is not subject to judicial interference.
(Marshall vs. Gordon, supra).

The next question concerns the claim that the petitioner has purged himself of
contempt, because he says he has already answered the original question which he
had previously been required to answer. In order that the petitioner may be
considered as having purged himself of the contempt, it is necessary that he should
have testified truthfully, disclosing the real identity of the person subject of the
inquiry. No person guilty of contempt may purge himself by another lie or
falsehood; this would be repetition of the offense. It is true that he gave a name,
Jess D. Santos, as that of the person to whom delivery of the sum of P440,000 was
made. The Senate Committee refused to believe, and justly, that is the real name of
the person whose identity is being the subject of the inquiry. The Senate, therefore,
held that the act of the petitioner continued the original contempt, or reiterated it.
Furthermore, the act further interpreted as an affront to its dignity. It may well be
taken as insult to the intelligence of the honorable members of the body that
conducted the investigation. The act of defiance and contempt could not have been
clearer and more evident. Certainly, the Senate resolution declaring the petitioner
in contempt may not be claimed as an exertion of an arbitrary power.

One last contention of petitioner remains to be considered. It is the claim that as


the period of imprisonment has lasted for a period which exceeded that provided
by law punishment for contempt, i. e., 6 months of arresto mayor, the petitioner is
now entitled to be released. This claim is not justified by the record. Petitioner was
originally confined by Resolution No. 17 on May 15, 1950. On December 13,
1951, he executed his affidavit and thereafter he was called to testify again before
the Senate Committee. The latter passed its Resolution No. 114 on November 6,
1952, and he presented the petition for habeas corpus in this case on March 3,
1953, i. e., five months after the last resolution when the Senate found that the
petitioner committed another contempt. It is not true, therefore, that the petitioner's
punishment is beyond the full period prescribed in the criminal law.

Besides, the last resolution of November 8, 1952 is also of a coersive nature, in the
sense that the Senate Committee still demands and requires the disclosure of the
fact which the petitioner had obstinately refused to divulge. While the Philippine
Senate has not given up hope that the petitioner may ultimately disclose the record,
it is improper for the courts to declare that the continued confinement is an abuse
of the legislative power and thereby interfere in the exercise of the legislative
discretion.

The judgment appealed from should be, as it hereby is, reversed, and the petition
for the issuance of the writ of habeas corpus denied. The order of the court
allowing the petitioner to give bail is declared null and void and the petitioner is
hereby ordered to be recommitted to the custody of the respondent. With cost
against the petitioner-appellee.