CONGRESSIONAL INVESTIGATING POWER
Judicial Interpretations Of the Scope Of Inquiry
by
C. ALLEN HARPiNE*
I-Introduction
Newspapers, television, and other mediums of information
have brought the drama of congressional investigations to the
attention of the public. The results, direct and indirect, of many
of these investigations have been far-reaching. Shocking revelations of misconduct and negligence in high places have been made
public. The reputations of many persons have been adversely
affected, prison being the lot of some of those investigated. Important pieces of legislation have been formulated as -the result of
inquiries by committees of the Senate and House of Representatives. Not the least of the results of these activities has been the
emergence of investigators to fame--or notoriety-depending
upon one's point of view. One congressional investigator became
president in recent years, one is now vice president, and at the
time this is written a third has his coonskin cap definitely in the
ring.
Alongside the sensational aspects that we read in our newspapers and see on our television, many serious legal and constitutional issues are presented by the prevalent practice of investigation by committees of Congress. The purpose of this paper is to
point up a few of these issues and to explore one of them in some
detail. The question with which this paper is most concerned is
this: just what have the courts held, in the cases that have come
before them, as to the power of Congress to make inquiry and
compel testimony from unwilling witnesses. This article is not
intended to develop the procedural limitations the courts have
imposed upon Congress, nor is it intended to be an extended discussion of the effect of personal Constitutional safeguards in relation to congressional investigations; these subjects will be mentioned only where necessary to give a rounded picture of the
judicially permissible scope of congressional inquiry.
Il-The Historical Basis of Congressional Inquiry
If one scans the legal digests on the subject of investigations,
he finds that the courts have given the matter great consideration
jn the last decade but that there are very few cases in earlier years.
Nonetheless, the power of inquiry by the legislature and its necessary complement-the power to compel testimony-are deeply
rooted in the Anglo-American tradition.
It is generally assumed that Congress and also the state gov-
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prning bodies are direct descendants of the English Parliament; I
and regardless of whatever learned arguments might be raised for
or against this proposition, it is the starting point for an understanding of most congressional powers, privileges, and functions.
The exercise by Parliament of the power of compelling witnesses to come before it can be traced as far back as the early part
of the seventeenth century.
Along with the power of investigation, Parliament early exercised the power to punish for contempt. Some students have felt
-that this power was derived from Parliament's historical judicial
aspects and so not applicable to our Congress. However, it would
seem that the power to punish for contempt can be justified
as a
2
legislative necessity whatever its historical origin may be.
The representative assemblies of the thirteen colonies adopted
most of the rights, powers, and functions of Parliament. Among
these were the power to punish for contempt and the right to
make inquiries into the conduct of the other branches of the government. This no doubt was a natural thing for our early legislators to do. Imbued as they were with the traditions of Englishmen, it would not require conscious thought to assimilate the
nature of Parliament into their New World legislatures. However
that may be, the power of inquiry was fully established and
extensively used throughout the Colonial period and up to the
present time. Furthermore, the exercise of the investigative power
in the Colonial and early National periods of our history was
fully upheld by the courts on the few occasions when the issue
came before them. 3
Though no direct grant of inquisitorial power was given in the
Constitution, Congress has never doubted that it had power both
to investigate and to compel others to aid its investigations. The
first congressional inquiry was voted in 1792, a time when many
men connected with the framing and adoption of the Constitution were in the halls of Congress. This inquiry, one concerning
the ill-fated St. Clair expedition against the Indians in the Old
Northwest, was justified on the right and duty of Congress to4
appropriate and to superintend the expenditure of public funds..
In 1821 the United States Supreme Court confirmed the idea
that Congress had the power to punish a non-member for contempt in the decision of Anderson V. Dunn.5 This case involved
* Senior student, Washington College of Law, American University.
1 Comment, Congressional Investigations, 45 I1. L. Rev. 688 (1950).
- Kilbourn. V. Thompson, 103 U.S. 168 (1881) ; Landis. Constitutional Limitations on
thC Congressional Power of Investigation, 40 Harv. L. Rev. 158 (1926); and Potts,
Power of Legislative Bodies to Punish for Gontempt, 74 U. Pa. L. Rev, 691, 780 (1026)
contain discussions of early history and theory.
I Landis. supra note 2 at 167.
'See
Eberling, CoxonwsSIOxA.
INVESTATIOAnS, .18-99 (1928); Landis and Potts,
supra. note 2. for details of some of the early inquiries.
6 Wheat. 204 (U.S. 1821).
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got an investigation but an attempt to bribe a member of Congress. Nonetheless it is considered as affirming congressional power
.to punish for contempt, a power that extended beyond the immediate issues and facts of the case to embrace the power to punish
any conduct contemptuous of Congress. 6
Despite the extensive use of the power of inquiry by congressional investigating committees, it was not until 1881 that the
Supreme Court of the United States handed down a decision in
respect to this power. This case, Kilbourne V. Thompson 7 has
been the subject of controversy ever since. When one considers the
broad and almost uninhibited exercise of the power of inquiry by
Congress, before as well as since this case, it is perhaps somewhat
surprising to discover that this pioneer decision was very unfavorable to congressional investigations.
The controversy arose as a result of the bankruptcy of the
great business house of Jay Cooke Z4 Company, the estate of
which was in the course of administration in a federal court. The
Secretary of the Navy had, according to the House resolution
authorizing the investigation, made "improvident deposits" with
Jay Cooke &I Company and that the trustee of the estate had
made a settlement of the interests of the estate of Jay Cooke &
Company with the firm's associates, which settlement was to the
"disadvantage and loss, as it is alleged, of the numerous creditors
of said estate, including the government of the United States; and
whereas, the courts are now powerless, by reason of said settlement, to afford adequate redress to said creditors." As authorized
by the resolution a committee was appointed to inquire into the
affair, including the nature and history of a real estate pool in
the District of Columbia which was believed to be involved in
the matter.
One Hallet Kilbourn was called before the committee and
ordered to answer questions and produce decuments in regard to
the pool. Upon his refusal to comply with the committee's demands the witness was committed by the House of Representatives to the District of Columbia jail for contempt. Thereupon
Kilbourn brought an action against the Speaker of the House and
others for false imprisonment.
The punishment of Kilbourn by the House, acting under its
presumed power to punish for contempt, was bitterly condemned
by Mr. Justice Miller in his historic opinion. The Justice forthrightly attacked the House for usurping what he considered to be
a strictly judicial power. Landis 8 and Potts 9 and other scholars
have thoroughly analyzed this aspect of the decision so I shall
0Landis.
Contiutiuonal Tmitations on the Congressional Power of investigation, 40
Harv. L. Rev. 153 at 213.
7103 U.S. 168 (1881).
s Supra. note 6.
. Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. (1926).
[661
pass up all discussion on this except to say that Mr. Justice
Miller's views on the subject have not prevailed and that it is
generally considered that the power to punish for contempt is a
legislative power insofar as it is necessary to accomplish legislative
purposes.
The Kilbourn case is the only Supreme Court decision to date
that restricts the power of congressional inquiry as to scope of
subject matter. The opinion squarely held that the particular
investigation was beyond the jurisdiction of Congress because of
the fact that the matter was already in the hands of the judiciary.
Mr. Justice Miller felt very strongly that congressional action on
the subject was therefore blocked by the constitutional separation
of powers. The court noting that no hint of any legislative purpose could be found in the House resolution authorizing the
investigation, jumped automatically to the conclusion that no
legislative purpose could then exist and that therefore the investigation could only be concerned with private affairs. The court
most emphatically stated that Congress possessed no general power
of inquiry into the private affairs of citizens. Mr. Justice Miller
in his opinion expressly avoided the problem as to congressional
power to elicit testimony in aid of legislation.
However one may feel about this decision policy-wise, it is
hard to look upon it as anything except an aberration in the
otherwise steady development of legislative inquiry. Its views as
to the historical and theoretical power of the legislative branch
to punish for contempt have been vigorously assailed, and no
more than lukewarmly and apologetically defended even by its
adherents.' 0 Though on its facts the case has some merit, it is
altogether unlikely that it will ever receive more than lip service
in these days of greatly expanded governmental power. It would
seem, also, that the court was overly squeamish about protecting
the prerogatives of the judiciary. Granting that the House resolution implied a distrust of the courts and expressed a desire to
find other remedies, it would be easy to imagine that Congress
might very well have an interest in Jay Cooke & Company's
affairs that would not interfere with the operations of a bankruptcy court. At least three possible legislative objects are apparent
and plausible: First, it should seem quite apparent that Congress'
power of the purse would support the proposition that deposits
of public funds are legitimate objects of legislative scrutiny; or,
to make the question even less debatable, it could quite reasonably
be assumed that Congress might want to obtain information for
the purposes of legislating on the handling of public funds. Secondly, it is by no means inconceivable that impeachment proceedings against the Secretary of the Navy or other public officials
10 See Gose, The Limit8 of CongresionaZ Investigating Power, 10 Wash. L.
at 69 (1935).
[67]
Roy. 61
might have been indicated by the outcome of the investigation;
surely this quasi-judicial power of the legislature could have been
invoked in justification of the inquiry. Thirdly, Congress has the
complete legislative power and responsibility for the District of
Columbia, so the operation of a real estate pool in the District
could certainly be an object of direct concern to Congress in its
capacity as the governing body of that political subdivision. It
would seem that failure to recognize that legitimate congressional
consequences could result from the investigation is a weak link in
rationale of the case. l
In conclusion, the only explanation for the decision is that the
members of the court took a very narrow view of Congress'
power of investigation. However, despite the theoretical errors
in its reasoning and despite its failure to even slow the onward
rush of Congressional investigations, the case is a landmark decision in that it established the power of the courts to hold Congressional inquiries within legal and constitutional limits.
Sixteen years after the decision in the Kilbourn case the investigative powers of Congress again came before the Supreme Court.
The investigation involved in the case of In re Chapman12 grew
out of charges of corruption in connection with the enactment
of a tariff bill. Elberton R. Chapman, a member of a firm of
stockbrokers, was called before a Senate committee and asked if
his firm had bought or sold any sugar stocks during a certain
period for the account of any senator. Upon his refusal to answer
he was tried and convicted under Sections 102 and 104 of the
Revised Statutes, which provided for indictment in the courts for
recusant witnesses.
The Supreme Court unhesitatingly upheld the power of Congress to make this investigation and to require the witness to give
the testimony required on the not unreasonable theory that the
Senate had jurisdiction to investigate charges reflecting on the
integrity of its members. The court upheld the power, then somewhat in doubt because of the sweeping dicta of Kilbourn V.
Thompson, of Congress to enact statutes compelling evidence
relevant to the inquiry at hand. Few people would, of course,
argue that Congress should not have the power to investigate
concerning corrupt influences on legislation before it. However,
just as in Anderson V. Dunn and Kilbourn V. Thompson, the
Supreme Court indulged in superfluous dicta concerning the
powers of Congress. The general effect of this dicta was to indicate a line of reasoning contrary to that in the Kitbourn case.
Though perhaps the Kilbourn and Chapman cases are not really
contradictory on their specific facts, they do, in their dicta and
outlook, differ materially. There is really no way to reconcile
%'Potts.
supra. note 9.
12 166 U.S. 661 (1897); see 5 U.S. App. D.C. 122 (1895),
court.
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report of case in lower
their conflicting conceptions of the power of the legislative and
judicial branches under our system of government where each part
of the system must work in a fine balance. The only satisfactory
explanation for the great difference in the viewpoint of the two
cases is in the fact that there was a considerable change of personnel in the Supreme Court in the period between the two cases. 13
Looking back, we can see that the Chapman case marked out the
trend that was to follow.
Some additional confirmation of the inquisitorial power can
be found in the decision of the federal District Court for the
Southern District of New York in Henry V. Henkel. This decision upheld the power of a House committee to ask questions
concerning the activities of officers of national banks. The court
states that national banks are creatures of Congress and the conduct of their officers is regulated by statute
and so Congress may
4
therefore investigate concerning them.'
Three key decisions handed down by the Supreme Court in the
19th Century set the pattern for later events; these were:
1. Anderson V. Dunn, which confirmed the power of Congress to punish outsiders for contempt
2. Kilbourn V. Thompson, which brought Congressional investigations under rules of law and required a public purpose for the exercise of contempt powers
3. In re Chapman, which reconfirmed much of the punitive
power of Congress and, specifically, held that Congress
could look into matters concerning itself.'8
III-Congressional Investigating Power Confirmed
McGrain v. Daugherty 16 was the case that clearly established
the investigative power of tihe United States Congress. The case
arose out of the scandals of the Harding Administration. A Senate
committee was appointed to investigate charges made on the Senate
floor that Harry M. Daugherty, the Attorney General in President
Harding's cabinet, had failed to prosecute certain violations of
federal law. The committee was also empowered to investigate
his conduct in general. The committee served a subpoena upon
Mally S. Daugherty, the brother of the man under investigation,
commanding him to appear before it and give testimony as well
as to bring vast piles of records of a bank of which he was an
officer. Upon his failure to comply the committee issued a second
summons; this second summons did not mention any records but
12 Gose, The Limits of Congressional Investigating Power, 10 Wash. L. Rov. 61 at
68; Landis, Contitutional Limitatins on the Congressional Power of investigation, 40
Harv. L. Rev. 153 at 215 (1926).
14 207 Fed. 805 (1913).
'r See Gose. supra, note 10.
18 273 US. 135 (1927).
[69]
commanded only his personal appearance. Ignoring this second
subpoena, Daugherty was taken into custody under a warrant
issued by the Senate.
Mally S. Daugherty then applied to the United States District
Court sitting at Cincinnati, Ohio, for a writ of habeas corpus.
This lower federal court granted the writ and gave a long opinion
denying to the Senate the power to arrest Daugherty for what
District Judge 7Andrew Cochran deemed would be a judicial trial
of Daugherty.'
This decision was reversed by the Supreme Court in an opinion
that was as friendly to the powers of Congress as the one in the
Kilbourn case had been unfriendly. Several technical procedural
matters were decided against Daugherty without a quibble and
the power of Congress to compel testimony that could conceivably
be used for legislative purposes was unhesitatingly approved. Mr.
Justice Van Devanter's opinion gave a scholarly and realistic
analysis of the developments in the field of legislative inquiry and
concluded that "the power of inquiry-with process to enforce
it-is an essential and appropriate auxiliary to the legislative
function."
The court based its reasoning on the very real need of legislators to obtain information as the basis for effective lawmaking.
True the resolution authorizing the investigating committee contained no hint that the Senate had any legislative motives in
mind, but Mr. Justice Van Devanter excused this omission by
pointing out that the administration of the Department of Justice
was a subject of great concern to Congress and one on which it
could certainly legislate. The court, perhaps in ignorance, intentional or otherwise, of the facts of (political) life said. "The
only legitimate object the Senate could have in ordering the investigation was to aid it in legislating ... "
McGrain V. Daugherty then stands for the proposition that
Congress can investigate on any subject on which it can legislate
and, presumably, that it cannot investigate into any subject on
which it wou!d have no power to legislate. Undoubtedly when
considered on its facts the decision was a correct one, yet it may
be regretted that the theory of the decision is a bit shaky. Of
course, much investigating is done for the purpose of deciding
legislative problems, but it can scarcely be denied that the sensational investigations, the ones that are more likely to get into
court, are usually judicial in their purpose-and this is so whether
or not a legislative intent could possibly be imagined; and it is
still so even if legislation does actually result.
So now we see the battle lines clearly drawn. Is congressional
action to uncover real or supposed misdeeds a legislative or a
judicial function? Looking at the thing from the viewpoint of
17ExF"arte Daugherty, 299 Fed. 620 (1924).
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pure logic, we can see, I think, that the judges in Kilbourn v.
Thompson and ex parte Daugherty have a legitimate point of
view in attempting to restrain Congress from "trying" individuals
before the bar of public opinion. Yet the proponents of the legislative power of inquiry are realistic in seeing, even if they don't
always admit it, that Congress has i powers and responsibilities
that go beyond mere statute drafting1
The cases in the two decades following Mr. Justice Van
Devanter's historic opinion did little to change the law as stated
to broaden the scope
in the Chapman and Daugherty cases except
of inquiry somewhat. Sinclair V. U.S.,1' which also arose out of
investigations into the misdeeds of the Harding Administration,
upheld the power of Congress to enforce answers in regard to the
leasing of government oil reserves. This Supreme Court, unlike
the one that decided Kilbourn V. Thompson, did not consider
that Congress was precluded from its investigation simply because
the matter was also before the courts. Thus the Kilbourn case has
lost most of its authority, though never specifically overruled.
Other cases of the period upheld the power of the houses of
Congress to look into the election of their members. 20 McCracken
right of
V. Jurney, a case very involved in its facts, upheld the
Congress to inquire into air and ocean mail contracts. 21
Three cases of some significance were decided in the late 1930's
by lower federal courts. In two almost identical decisions different
district courts upheld the right of Congress to investigate violations of the right of labor to organize and bargain collectively
and also infringements of rights of free speech and assembly in
connection therewith. The rationale of these cases apparently
22 rested
on the fact that Congress had legislated on this subject.
The third case of the trio, Townsend V. U.S.28 handed down
in 1938, arose out of the questioning by a House committee of
Francis E. Townsend of old-age pension fame. The resolution
authorized the committee to inquire into old-age pension plans
and their proponents. The court upheld the power to investigate
on this subject on the grounds not only that Congress could legislate concerning old-age pension plans but also on the grounds
that the resolution specifically stated that information was needed
for remedial legislation in this field.
A brief recapitulation of developments through the end of the
1930's might be helpful. Congress and other legislatures had
Is See Carr, THz HousE Co miE oN UN-AnEICAN ACTIVITIES, 271-819 (1952);
see also the dissenting opinion in Barsky v. U.S. 167 F. 2d 241 (1948), and tho.majority and dissenting opinions in Watkifs v. U.S. (citation not available, see notes 85 and
36 infra.).
"279 U.S. 263 (1929).
20 Reed v. County Com'rs of Delaware County, Pa.. 277 U.S. 876 (1928); Barry V.
Cunningham, 279 U.S. 597 (1929); U.S. V. Norris, 300 U.S. 564 (1987).
294 U.L. 125.
2 U.S. v. Groves, 18 F. Supp. 3 (1937); U.S. v. Creech, 21 F. Supp. 439 (1938).
95 F. 2d 352 (1938).
[71]
exercised the power of inquiry in countless matters touching, somehow or other, on the administration of government and the conduct of affairs of concern to the public. The courts had upheld
the power of Congress to investigate any matter on which it
might legitimately legislate and had, in addition, confirmed the
jurisdiction of Congress to investigate all matters concerning its
own administratoin. Though the court had given the legislative
branch what amounted to almost a blank check as to scope of
investigative activity, the Supreme Court did bring congressional
committees under judicial review for the protection of the constitutional rights of the individuals involved in the inquisitions.
IV-1948-1955-Gangsters, Lobbyists, and Reds, the
Supremacy of the Congressional Investigator
Up until the middle part of this century, practically all congressional investigations had as their subject matter some phase
of the administration of government.2 4 Most congressional inquiries prior to the end of World War II were checkups on the
morality and efficiency of officials in the executive branch; others
were on matters directly relating to Congress as a body. However,
in the last decade congressional committees have ranged far afield
of their prior investigations. Today, it would be hard to say
positively that any particular matter could not be investigated
by Congress. That this is so should occasion no great surprise.
The interest and powers of the general government have been
extended into innumerable aspects of our lives and activities that
in earlier days would have been immune to federal intervention.
With the great expansion of federal influence it is only natural
that congressional inquisitors should also broaden their curiosity.
The Townsend case, already discussed, can now be seen to be
a forerunner of things to come. It appears that the reasoning of
that decision runs thusly: Congress can legislate in the field of
old-age pensions, therefore Congress can investigate old-age pensions, therefore Congress can investigate Dr. Townsend because
Townsend has a connection with the subject of old-age pensions.
All as neat as a geometric theorem. But does this logic do violence
to our Constitutional system providing for the protection of individual rights-a system which, after all, is not based on logic?
Can Congress validly put some one on the inquisitorial griddle
simply because he has some connection or other with one of the
myriad subjects on which Congress may, directly or indirectly,
act under its greatly expanded role in American life? Has Congress assumed powers that are inimical to our valued traditions
of liberty? This article does not have a dogmatic or certain answer
n' Eberling,
CONGRESSIONAL IXV~sTJTGATIONs,
many of the earlier inquiries.
[72]
(1928)
contains detailed accounts of
to these questions or to many of the other problems raised by
congressional probes. However, it is well to think about these
issues and see if some workable solution to the dilemma can be
found.
The period from the end of World War II until the present
has been an exceedingly busy one for congressional committees.
As in previous eras, however, only a small percentage of the
inquiries resulted in court action. It should always be borne in
mind that much of the most valuable work of investigating
committees never receives judicial review. Also, of course, as in
other fields it is the sensational case or incident that receives the
lion's share of attention by the public as well as in scholarly and
legal circles. It is also unfortunately true that much of the most
truly valuable work by congressional committees does not receive
any publicity or notice. Be that as it may, the cases that have made
the law in the past ten years have been concerned with the investigation of gangsters, lobbyists, and Communists; and it is not by
chance that I say gangsters, lobbyists, and Communists rather
than gangsterism, lobbying, and Communism-the personal element being so important in these investigations.
The Kefauver investigations of crime in the United States
represent a new congressional activity, previous investigations of
criminal activity being pretty much limited to corruption in the
federal government. That the Senate of the United States should
concern itself with dramatic disclosures of widespread gangsterism
might cause a constitutional lawyer of the old school to raise his
eyebrows a trifle. However, the judicial branch has not hesitated
to uphold this incursion by Congress into what had been usually
regarded as a matter of state and local concern in earlier years,
the rationale being that much of our present day crime is interstate in character. 25 The cases concerning the probes of gangsters,
however, add little else to the law. The rules on the Fifth Amendment received a good workout in the cases concerning criminal
activities, but the intricacies of the law on the subject are beyond
the purview of this discussion.
The right to investigate lobbying certainly presents no real
problem at this point in the development of our constitutional
law. No one can doubt that 26Congress can inquire into direct
influences on its own processes.
The investigation of Communism and of Communists presents
more difficult constitutional, ethical, and political questions, however. It is the writer's opinion that direct and undisguised efforts
to attack our nation and its government, whether externally or
internally, are and should be within the express and implied
powers of Congress, but what to do about this hydra-beaded
1U.S. v. Di Carlo, 102
Supp. 597 [.(N.D. Ohio 1952).
U.S. v. Rtvmeli,. 345 U.S. 41 (1953).
2See
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monster that assumes so many forms and works through so many
legitimate guises? Even more puzzling, how can we cope with
the Communist conspiracy's amazing ability to utilize seemingly
or actually - respectable people and organizations for its
subversion?
Congressional committees have been investigating Communism
in the United States for almost twenty years. These committees
have uncovered a great deal of information on the subject and
have done much to fight Communism. On the other hand, they
have been subjected to a tremendous amount of criticism. An
evaluation of the work of2 7 these committees is, however, beyond
the purview of this paper.
Two leading decisions have been handed down by intermediate
federal courts on the matter of the investigation of Communism
and Communists by congressional committees. Both of these
cases sweepingly upheld Congress' right to grill alleged Communists; both cases contained vigorous dissents. We will now
proceed to consider each of them in some detail.
The first, US. V. Josephson,28 arose on these facts. The House
Un-American Activities Committee, then investigating Gerhart
Eisler, alleged representative of the Communist International in
the United States, had evidence that one Leon Josephson had
helped procure a fraudulent passport for Eisler and also that
Josephson was an important Communist himself. Josephson
appeared before the committee but refused to be sworn or to give
testimony. He was cited for contempt and convicted in the United
States District Court.
In 1947, the Court of Appeals for the Second Circuit affirmed
the conviction by a two-to-one vote. Judges Swan and Chase
emphatically upheld the power of Congress to investigate potential danger from totalitarian movements. They maintained that
Congress could legislate to protect the national safety and that the
courts should not assume in advance that this legislation would
violate the first amendment.
Justice Clark dissented on the basis that the Committee's
authorizing resolution which empowered it to investigate "unAmerican propaganda" was of such great broadness and of such
vagueness that inquiries could well be carried beyond the point
of any possible valid legislation.
Judge Clark's point as to the unnecessarily and dangerously
broad scope of activity authorized by the Committee is well taken.
Nonetheless, on its particular facts, the Josephson case seems to
have been correctly decided by the majority. Congress can certainly legislate to protect the country from subversion by illegal
:1 Ogden, THE DIns CoumiTnEE (2d ed. 1945), and Carr, THE HOUSE CoMt5TrEE
ON UN-A rICAN ACTMrIES (1952) contain excellent and detailed discussions of the
most important of these committees.
28 U.S. V. Josephson, 165 F. 2d 82 (24 Cir. 1947).
[74]
or violent means; therefore, there is no reason to restrict it from
investigating possible illegal activities inimical to the safety of the
country. The first amendment would not seem to be an appropriate defense from any point of view. Congress was investigating
activity rather than thought or speech. The gathering of information about the possible existence of a conspiracy to overthrow the
government and the asking of questions concerning criminal activity in furtherance of such aims should not be considered as an
infringement of liberty from even the most liberal point of view.
It may be, however, that some statements in the opinion can be
interpreted as giving committees too free a rein on political
subjects.
Barshy v. U.S.,29 decided a short time later by the Court of
Appeals for the District of Columbia, also gave strong support to
congressional probers. Dr. Edward K. Barsky, along with other
officials of an organization known as the Joint Anti-Fascist Refugee Committee, were subpoenaed by the House Un-American
Activities Committee and ordered to bring with them certain
financial and other records of their organization. Upon their
refusal to produce the required documents, these persons were
cited by the House for contempt and convicted in a federal court.
Barsky appealed his conviction to the intermediate court. The
House Committee contended that it had information that the
Joint Anti-Fascist Refugee Committee was spending, for propaganda purposes, funds that it had collected in this country for
relief abroad. The defense argued vigorously that the resolution
creating the Committee violated the first amendment in that it
authorized inquiry into opinion and expression. The majority,
consisting of Justices Prettyman and Bennett Champ Clark,
rather obliquely answered this argument by stating that the
Committee had asked for an accounting of funds, not for a statement of political beliefs. The opinion did not stop here, however,
but went on to uphold unequivocally the right of Congress to
inquire into threats of unconstitutional changes in the government.
The decision made the further point that congressional committees have the power to require the identification of individuals
as Communists. The court stated that the personnel of Communism is a legitimate object of Congressional curiosity in its attempts
to learn the scope of subversive activity. The majority also believed that knowledge of a person's attitudes and beliefs was
necessary to enable the committee to properly evaluate his testimony. The court, further, held emphatically that an individual's
right of privacy as to his political opinion is subordinate to the
safety of the nation.
In this case, as in the Josephson case, there was a thoughtprovoking dissent. Justice Edgerton strongly argued that the
29 167 F. 2d 241, cert. denied 333 US. 838 (D.O. Cir. 1948).
[75]
House Committee's actions violated the first amendment, saying,
"The investigation restricts the freedom of speech by uncovering
and stigmatizing expressions of unpopular views." Justice Edgerton reasoned that freedom to speak includes the freedom not to
speak. He felt, also, that investigations of things "un-American"
was too broad and expressed disapproval of attempts to enforce
political orthodoxy.
In fairness to the dissenting judge, it cannot be denied that the
scope of inquiry authorized the Committee is objectionably broad
and vague. The Legislative Reorganization Act of 1946 empowers
it ".
. 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."
In conclusion, there can be no doubt that the majority opinions
in these two cases permit congressional committees to exercise an
extremely wide scope of inquiry. The writer believes that the
decisions are correct ones from the practical standpoint; no sensible person can doubt that Communism is a terrible menace to
the safety of our country and to our cherished freedoms. Certainly
a court should think twice before tying the hands of those trying
to expose its machinations. The experience of three centuries has
shown that legislative inquiry is a powerful force for the uprooting of evil. From a legal viewpoint, as exemplified by doctrine
expressed in McGrain V. Daugherty, Congress has the power to
investigate Communism because it can and does legislate concerning this problem.
Later Court of Appeals' decisions confirmed the law of these
two cases. In Lawson V. U.S. 3° Justice Bennett Champ Clark of
the Court of Appeals for the District of Columbia said "We expressly hold herein that the House Committee on Un-American
Activities has the power to inquire whether a witness subpoenaed
by it is or is not a member of the Communist party or a believer
in Communism and that this power carries with it necessarily the
power to effect criminal punishment for failure or refusal to
answer that question under 2 U.S.C.A. 192. This is especially
true of the inquiry whether appellants were members of the Screen
Writer's Guild, a question which only Trumbo refused to answer.
To hold otherwise would indeed be holding that the power to
inquire is indeed a 'powerless power'."
This opinion also clearly held that the importance of the
'1 176 P. 2d 49 (D.C. Cir. 1949).
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motion picture industry in the struggle for men's minds for and
against Communism made it a proper subject for Congressional
inquiry.
Other cases of this period likewise went all out in giving investigators of Communism a free hand. 31 Some cases went in favor
of recalcitrant witnesses, but these were decided on procedural2
points or on grounds of the invocation of the fifth amendment a
Since the Sinclair case in 1929 the Supreme Court has been content to let the lower federal courts carry the burden on the question of the permissible scope of congressional inquiry. In U.S. V.
Rumely 33 the Supreme Court had the question before it but sidestepped this issue by deciding the case on a narrower point.
Rumely was the secretary of an organization that sold books
and otherwise propagandized on political and social subjects. The
organization, incidentally, was not Communist but, rather, held
views of a conservative nature. Rumely was indicted for refusing
to give to a House committee investigating lobbying activities the
names of bulk purchasers of his organization's books. The opinion by Justice Frankfurter recognized that this was really an
attempt to investigate influences on public opinion rather than
lobbying in the sense of direct representations to Congress, but
the court deliberately refused to set the boundaries of Congressional inquiry and decided the case on the point that the committee had exceeded the power granted to it by its authorizing
resolution.
In November of 1955 a District Court upheld the right of an
admitted ex-Communist to refuse to reveal the names of fellow
workers at Harvard University whom he knew to be Communists.
However, the court left open for later decision the refusal of the
defendant to name individuals known by him to be members of
the Communist Party who were working in defense plants and
whether he knew if a certain individual had contacts with people
handling secret material. The rationale of the decision, insofar as
it went in favor of the defendant, was based upon lack of specific
power by the34 committee rather than any lack of general power
by Congress.
V-1956-Narrowing the Powers of Congressional Committees
A clear-cut decision of great potential importance was made by
a three-man court of the United States Court of Appeals for the
District of Columbia on January 26, 1956 in the case of Watkins
31 Morfard v. 'US., 176 F. 2d 54 (D.C. Oir. 1949); Marshall v. 'U.S., 176 F. 2d 473
(D.C. Cir. 1949); Eisler v. U.S., 170 F. 2d 273 (D.C. Cir. 1948).
os Driver, Constitutional Limitations on the Power of Congress to Punish Contempts
o Its Inretsigating Committees, 38 Va. L. Rev. 887 at 1011 (1952).
a'345 U.S. 41 (1953).
4"U.S. V. Kamin, 135 F. Supp. 382 (S.D. M1ass. 1955).
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V. U.S. a5 The majority, composed
of Justices Edgerton and
Bazelon, upheld the refusal of a labor union official to name
union members whom he knew to be Communists during a period
in the 1940's. The witness, though consenting to cooperate with
the committee otherwise, refused to reveal the names of persons
whom he believed to have ceased being Communists at the time
of the hearing (April 1954). The majority held that such questions were not pertinent to an inquiry of un-American propaganda where it was not shown that these persons had engaged
in or might engage in propaganda activities and were asked, not
for a valid legislative purpose, but purely for exposure. Judge
Bastian dissented in favor of the power of the committee (a subcommittee of the Committee on Un-American Activities) to compel the identification of persons who were Communist union
members between 1942 and 1947. Though this decision for a
time held promise of setting new law narrowing the scope of
inquiry of Congressional committees, its reversal on rehearing
leaves it with no standing at present except that the former majority have incorporated their reasoning into the dissent of the later
decision.
The majority opinion in the final case,8 6 as written by Judge
Bastian, held the questions asked to be pertinent to a valid legislative purpose. He showed that the series of hearings from which
this case arose did have a bearing on the subsequent enactment of
the Communist Control Act of 1954 37 which dealt in part with
the problem of Communist infiltration of labor unions. Relying
on the arguments in the Barsky case, the court upheld the right
of the committee to require the identification of individual persons
who believed in Communism. Judge Bastian's opinion goes a long
way in assuming that the questions of congressional committees
are asked for legislative rather than for judicial purposes; that is,
for information to aid in lawmaking rather than for the exposure
of individuals as wrongdoers.
"Points four and five of appellant's statement of errors
can be combined for our purposes here. He says the Committee asserted an independent power of exposure. Congress
has power of exposure if the exposure is incident to the
exercise of a legislative function. Congress certainly has the
power of inquiry or of investigation when the inquiry or
investigation is upon a subject concerning which Congress
may legislate. The fact that such an inquiry or investigation
may reveal something or 'expose' something is incidental and
without effect upon the validity of the inquiry."
3r Opinion not published because superseded by new opinion on reversal by full court
April 23, 1956. The dissenting opinion in the later decision is substantially the same as
the earlier majority opinion.
a1 Decision dated April 23. 1956, citation not yet available.
s7 50 U.S.C. § 841 (Supp. 1955).
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"Appellant would have us judge the present controversy
upon the basis of speeches made by members of Congress and
others, and upon newspaper articles, etc. We cannot do so.
Such material is not evidence. The question is an individual
one, whether the inquiry is indeed pertinent to a valid legislative purpose. It cannot be solved by generalities culled from
speeches-many'of them no doubt partially extemporaneous
-- or from partisan assailants, critics, friends or defenders of
some project or cause. Moreover, even if the unbridled power
of exposure were claimed by some members of Congress, the
claim would not establish its use in any particular inquiry.
We must judge each inquiry in its own setting and upon its
own facts."
The dissenting, and former majority, opinion by Chief Judge
Edgerton argued that there could be no valid legislative purpose
in a list of names and went on to state that the committee seemed
to have no other interests in questioning the witness. The dissent
splits squarely with the majority on the issue of exposure. Judge
Edgerton states that "It is very questionable whether exposure
of individuals to public contempt or hostility is a 'valid legislative purpose'," and goes on to say "If we were obliged to decide
what the Committee's purpose was in asking the questions
Watkins would not answer, we might be forced to conclude that
the Committee asked them for the sole purpose of exposure."
The month of April 1956, the month in which this article was
written, saw the handing down of still another decision which
contains pronouncements of law of significance in the field which
we are now considering. On April 14 the United States District
Court for the District of Columbia acquitted Aldo Icardi of perjury charges. It had been alleged in both official and unofficial
circles that Icardi had taken part in the murder of an American
Army officer behind enemy lines during World War II. Icardi
had been called before a subcommittee of the House Armed Services Committee for the specific purpose, as it appeared, of laying
the foundation for a later indictment for perjury. District Judge
Keech directed a verdict of acquittal on the grounds that the power
of Congress to investigate "cannot be extended to sanction a legislative trial and conviction of the individual toward whom the
evidence points the finger of suspicion." 38
VI-Conclusions and. Recommendations
In summary, then, how does the law stand at present as to the
scope of congressional investigating power?
It is now taken for granted that Congress may investigate to
obtain any information needed for its internal administration,
' U.S. v. Icardi, 24 U.S.L. Week 2483 (D.D.C.,
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Apr. 14, 1956).
such as elections and qualifications of members, control of lobbying, etc. It is stated in the cases that committees may investigate
to obtain information needed for legislative needs; and this no
one disputes when an investigation is made for an actual statutemaking purpose. Congress has also assumed the right to investigate the operation of the executive branch. No doubt this is as it
should be-under our Constitutional form of government no
part can be a law unto itself. The many connections of the legislative branch with the other parts of the government-financing,
for example, provide ample theoretical justification for congressional committees to keep a watchful eye on the other parts of the
governmental machinery.
The live issue today is how far may committees go in exposing
Reds, criminals, and other wrong-doers? In other words, just how
far can Congress go in being a grand jury? No Supreme Court
decision has ever said that Congress has a valid power to expose
wrong-doers, though the issue has certainly been present in most
of the cases involving congressional investigations. The question
was present in McGrain V. Daugherty, though the Supreme Court
then pretended not to see it. The Josephson and Barsky cases, as
well as others decided in the lower and intermediate federal courts,
go a long way in permitting congressional committees to exercise
what amounts to at least a semi-judicial role in exposing and
punishing actual or supposed criminals and subversives.
The actions of congressional committees have now far outrun
the legal doctrines now extant on the scope of investigatory
power. Developments of the last ten years have rendered obsolete
the conception that the investigatory power of Congress is simply
an auxiliary to its power to pass laws. Numerous investigations
have had no actual purpose except the production of information
and the exposure of wrong-doers. This practice, though deplored
by many, is here to stay and undoubtedly has considerable public
support.
It is submitted that it is, or should be, a legitimate function
of Congress to act as a national "grand jury." It is a well-established historical fact that legislatures have been just that for at
least three to four hundred years. It is also wet-known that the
legislative branch can often operate effectively to protect the nation
from evils of various sorts on occasions when the other two
branches cannot or will not do so. Also, it is true that no part of
our government is so sensitive to the public's wishes and so subject to public control as Congress; therefore, there should be a
minimum of concern that the recognition of Congress's traditional
power of exposure would lead to tyranny. However, there does
exist a very real need for a safeguarding by the courts of the rights
of individuals and groups subjected to the investigatory process.
The Supreme Court has, in recent years, seen fit to duck
most of the questions concerning the scope of congressional probes,
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being content to leave this important subject in the hands of the
lower courts. It is suggested that the Supreme Court should, in
conformance with its historic traditions, take hold of this problem as suitable cases come up for review and reshape the law on
the permissible extent of congressional inquiry to our present-day
needs. The writer will not presume to tell the Supreme Court
just what the boundaries of congressional investigation should be.
However, it is submitted that the Supreme Court and other courts
should recognize the legitimacy of the semi-judicial or quasijudicial power of congressional committees to expose wrongdoing,
and at the same time set up standards of both substantive and
procedural due process for the protection of those subjected to
this power of inquisition.
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