MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Petitioner was convicted of contempt of Congress under 2 U. S. C. § 192 in the District Court for the District of Columbia. Section 192 provides for the punishment of any witness before a congressional committee "who . . . refuses to answer any question pertinent to the question under inquiry . . . ."
Pursuant to subpoena, petitioner appeared on August 10, 1949, before a subcommittee of the Committee on Un-American Activities of the House of Representatives. Petitioner was then a member and field representative of the United Electrical, Radio and Machine Workers of America. Also subpoenaed to appear on that day were Thomas J. Fitzpatrick and Frank Panzino, two officers of the same union. At the outset of the hearings, counsel for the committee announced that the purpose of the investigation was to inquire into "the question of Communist affiliation or association of certain members" of the union and "the advisability of tightening present security requirements in industrial plants working on certain Government contracts."
Fitzpatrick was the first to be called to testify. He based his refusal to answer on "the first and fifth amendments" as well as "the first amendment to the
It is from that decision that this Court granted certiorari.
There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation. This power, deeply rooted in American and English institutions, is indeed co-extensive with the power to legislate. Without the power to investigate—including of course the
But the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose.
The privilege against self-incrimination is a right that was hard-earned by our forefathers. The reasons for its inclusion in the Constitution—and the necessities for its preservation—are to be found in the lessons of history.
In the instant case petitioner was convicted for refusing to answer the committee's question as to his alleged membership in the Communist Party. Clearly an answer to the question might have tended to incriminate him.
It is agreed by all that a claim of the privilege does not require any special combination of words.
Here petitioner, by adopting the grounds relied upon by Fitzpatrick, based his refusal to answer on "the first and fifth amendments" and "the first amendment to the Constitution, supplemented by the fifth amendment." The Government concedes—as we think it must—that a witness may invoke the privilege by stating "I refuse to testify on the ground of the Fifth Amendment." Surely, in popular parlance and even in legal literature, the term "Fifth Amendment" in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination. The Government argues, however, that the references to the Fifth Amendment in the instant case were inadequate to invoke the privilege because Fitzpatrick's statements are more reasonably understood as invoking rights under the First Amendment. We find the Government's argument untenable. The mere fact that Fitzpatrick and petitioner also relied on the First Amendment does not preclude their reliance on the Fifth Amendment as well.
The Government, moreover, apparently concedes that petitioner intended to invoke the privilege. In its brief the Government points out "the probability that petitioner's ambiguous references to the Fifth Amendment
This ruling by no means leaves a congressional committee defenseless at the hands of a scheming witness intent on deception. When a witness declines to answer a question because of constitutional objections and the language used is not free from doubt, the way is always open for the committee to inquire into the nature of the claim before making a ruling. If the witness unequivocally and intelligently waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection
There is yet a second ground for our decision.
Section 192, like the ordinary federal criminal statute, requires a criminal intent—in this instance, a deliberate, intentional refusal to answer.
Clearly not every refusal to answer a question propounded by a congressional committee subjects a witness to prosecution under § 192. Thus if he raises an objection to a certain question—for example, lack of pertinency or the privilege against self-incrimination—the committee may sustain the objection and abandon the question, even though the objection might actually be without merit. In such an instance, the witness' refusal to answer is not contumacious, for there is lacking the requisite criminal intent. Or the committee may disallow the objection and thus give the witness the choice of answering or not. Given such a choice, the witness may recede from his position and answer the question. And if he does not then answer, it may fairly be said that the foundation has been laid for a finding of criminal
Was petitioner so apprised here? At no time did the committee specifically overrule his objection based on the Fifth Amendment; nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt. At best he was left to guess whether or not the committee had accepted his objection.
This ambiguity in the committee's position is apparent from the transcript of the hearing.
Our view that a clear disposition of the witness' objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations.
Giving a witness a fair apprisal of the committee's ruling on an objection recognizes the legitimate interests of both the witness and the committee. Just as the witness need not use any particular form of words to present his objection, so also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee's ruling, he has no cause to complain. And adherence to this traditional practice can neither inflict hardship upon the committee nor abridge the proper scope of legislative investigation.
Petitioner also attacks his conviction on grounds involving novel constitutional issues. He contends that the House Resolution authorizing the committee's operations is invalid under the First Amendment. In addition, petitioner contends that the trial court erred in denying a hearing on the alleged bias of the indicting grand jury. Our disposition of the case makes it unnecessary to pass on these issues.
The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal.
I agree with the result reached by the Court in this case. But I must dissent from the holding made in part II of the majority opinion. The reasons for my position are stated in part II of my dissenting opinion in the Emspak case, decided herewith, post, p. 203, at p. 213. I consider those reasons equally applicable to what is shown by the record in this case.
MR. JUSTICE REED, dissenting.
The Court in these two cases refuses to punish petitioners, witnesses before the Committee on Un-American Activities of the House of Representatives, for refusal to answer certain pertinent questions. Such refusal is declared to be a misdemeanor by 2 U. S. C. § 192.
The separate opinions are based on the conclusion that the petitioners each properly claimed for himself the privilege against self-incrimination guaranteed by the Fifth Amendment. The Court holds that questions concerning association with known communists or membership in the Party asked witnesses holding prominent positions in a local union, under investigation for communist infiltration directed at national security, might reasonably be feared as incriminatory by the witnesses.
These sweeping decisions affect the conduct of all congressional inquiries and all courts, for from the opinions there emerges a legally enforceable rule for handling hearings or prosecutions when questions raise for the witness a problem of self-incrimination. The Court, Quinn opinion, p. 164, requires the interrogator, once the witness' claim though "vague . . . is sufficiently definite to apprise the committee of his intention" to claim his privilege, "either to accept the claim or to ask petitioner whether he was in fact invoking the privilege." Although this phrasing, particularly the last clause, carries for me probabilities of uncertainties in future applications that former decisions
The purpose of having witnesses is to furnish to proper interrogators, subject to objections for materiality or the use of coercion, the actual facts they seek. Legislation can best be drafted and cases tried most fairly only when all pertinent facts are made available to those charged with legislation or maintenance of the peace. However, the Congress in the first series of Amendments to the Constitution wrote an exception to this duty in the instance where an answer would compel a person to be a witness against himself in a criminal case. In that situation, on a valid claim of privilege against self-incrimination, the witness may be excused from answering.
I. CLAIM OF PRIVILEGE.
The Court finds from the record before the Committee an apprisal by petitioners which the Committee should have understood as a claim of privilege against self-incrimination. In examining the record for this purpose, all the pertinent testimony must be considered and evaluated in the light of the purpose and abilities of the petitioners.
During an active period of national rearmament this Committee was investigating subversive and security situations in the sensitive electronic industry with a view to possible legislation.
It will be observed from their testimony, however, that in avoiding direct answers to specific questions each one engaged in exercises in dialectics that always fell short of advising the Committee of any intention to claim his privilege. In view of the ease with which a claim can be made by any layman, the availability of personal lawyers for these witnesses and the careful avoidance of any such statement as, "I decline to answer on the ground of possible self-incrimination," I cannot hold that these
While the trial and appellate courts each had only a printed record of the testimony, one group, the subcommittees themselves, had the best opportunity to appraise disinterestedly the fact of whether Messrs. Quinn and Emspak claimed the privilege. The questions and answers were both asked by the counsel and answered by the witnesses in the hearing of the Committee. In citations of Quinn and Emspak to the House for contempt, the Committee certified that the refusal of each "to answer the aforesaid questions deprived your committee of necessary and pertinent testimony . . . ."
In view of the basis of the Court's decision made on its own examination and appraisal of the record, I must necessarily set out for discussion much of the testimony to determine whether the witnesses claimed the privilege.
After testifying at some length, the petitioner was asked: "Mr. Emspak, are you acquainted with Joseph
In answer to subsequent questions, the petitioner simply referred to his prior answer. Later on, the following statements were made:
No more of the record is printed, as the excerpt shows the exchange between the Committee and petitioner upon which Count I of the indictment and the constitutional issues arising thereunder are based. This related to his acquaintanceship with Joseph Persily, a man who had been listed, according to a stipulation, as a person named as an official "of the UERMWA with Communist or Communist Front Affiliations." Nothing more favorable to petitioner's position appears on the questions examined or any other question.
As the Emspak case offers for me a clear example of failure to claim his privilege, I think it better not to encumber this opinion unnecessarily with quotations from the Quinn case.
In the Quinn case, the witness adopted in its entirety the testimony of a former witness, Mr. Thomas J. Fitzpatrick, chief steward of Local No. 601, United Electrical, Radio and Machine Workers of America. Mr. Quinn's testimony establishing his reliance on Mr. Fitzpatrick's evidence will be found in this Court's opinion in the Quinn case, n. 8, ante, p. 158. The hearing opened with a declaration by Mr. Fitzpatrick of minority rights to secrecy as follows:
This certainly indicated no claim of the privilege against self-incrimination. Mr. Fitzpatrick was then asked: "Are you now or have you ever been a member of the Communist Party?" After fencing with the Committee about prying into his mind, he said:
Later on he was asked whether he had asked a Mr. Cope-land to sign an application for membership in a Communist organization. In answer to that question this occurred:
The two references to the First and Fifth Amendments are the only phrases in the whole examination that could be thought to refer to a claim of immunity against self-incrimination.
From these vague statements of Messrs. Quinn and Emspak the Court draws the conclusion that they were sufficient to apprise the Committee of the witnesses' intention to claim the privilege against self-incrimination. The Court finds support for its theory of "intention" to claim privilege from a statement in the Government's brief in the Quinn case set out below.
What the records show to me is a calculated effort by Messrs. Quinn, Emspak and Fitzpatrick to hinder and delay a congressional committee in its effort to bring out facts in order to determine whether or not to undertake legislation. Such quibbling evades the basis for an understanding of the attitude of the witness as to privilege. It does not apprise the Committee of the claim of privilege and should not be held permissible. Factual testimony is the means for the ascertainment of truth in legally organized inquiries. Silence brings the proceedings to a dead end. The burden is on the witness to advise his interrogators of a claim to privilege in understandable terms.
The Court suggests that this should not be construed as a waiver of the claim and cites Smith v. United States, 337 U.S. 137, 151. I do not think the Smith case apposite. In that case there had been a clear claim of privilege for immunity. We held that required a definite, unambiguous waiver. Here there was, in my view, no claim of privilege.
The opinion of the trial court, printed only in the record, pp. 224-227, holds "The defendant failed to assert [the privilege]." Six of the nine members of the Court of Appeals held that Emspak had not claimed. Three did not reach that issue.
I concur with the Court in its assertions of the value of the self-incrimination clause—that it may be used as a shield by guilty and innocent alike—and that it should be construed liberally as it has been to cover more than the literal reading of the phrase "No person . . . shall be compelled in any criminal case to be a witness against himself" would suggest.
II. DIRECTION TO ANSWER.
The Court advances a second ground in the Quinn and Emspak cases for its direction that the District Court enter a judgment of acquittal. This is that a deliberate intent to refuse to answer the Committee's questions is required for the judgment of contempt. The Court explains, Quinn case, p. 166, that intent may be implied only when the witness is "clearly apprised that the committee demands his answer notwithstanding his objections," and, Emspak case, p. 202, "without such apprisal there is lacking the element of deliberateness necessary for a conviction under § 192 for a refusal to answer." The Court concludes that the witness was not "specifically" directed to answer, or otherwise informed as to the disposition of his objections.
The Court must admit, as it does, Quinn opinion, p. 162, that no particular form of words is required. On the other hand, I must admit that a witness must be clearly apprised that his claim of the freedom from an obligation to answer is not accepted by the interrogator.
United States v. Murdock, 284 U.S. 141, involved a statute very similar to the one here involved. In that case, Murdock had been called to testify before an Internal Revenue Agent and refused to answer certain questions on the ground that he might be incriminated under state law. We said in that case:
There was no direction to answer in either case. While the point was not raised, their holding as to what establishes the offense does not include a specific direction to answer as one of the elements.
While the Court held in Sinclair that deliberate refusal was all that was required to consummate the offense under 2 U. S. C. § 192, at the same time we were at pains to point out "There was no misapprehension" on the part of the witness "as to what was called for." P. 299. It is because the refusal must be intentional, that the witness
The Court suggests, n. 36, Quinn case, that congressional committees follow the practice of other legislative bodies and determine first the validity of the witness' reason for failure to answer and then direct him to answer. The defect in that analogy is that the Court seems to assume in its note a formal vote and a specific direction to answer. I think such a specific direction is inconsistent with its page 170 admission that no ritualistic formula is required. No provision of the statute, nor of any rule of Congress is cited by the Court to support a requirement of specific direction. The Court of Appeals held direction to answer unnecessary so long as the witness knew that the Committee had not acceded to his refusal.
The Court holds that the witnesses did plead the privilege and were not advised that the Committee refused to accept their pleas. I disagree. After Mr. Quinn had adopted Mr. Fitzpatrick's words as his own method of
This, I think, advised Mr. Quinn that the Committee refused to accept his reply as a satisfactory excuse and required him to proceed.
I think, too, that Mr. Emspak was advised his answer was not accepted and that he was required to proceed. When he was asked repeatedly as to whether he was acquainted with Joseph Persily, he said again:
On continued questioning as to Mr. Persily, he continued, "I will give the same answer." I cannot but conclude, as did the lower courts, that the witness Emspak was adequately
The Court directs acquittal of both petitioners on the grounds of claim of privilege and failure to specifically overrule their objections or direct them to answer. I disagree with both grounds. Confining expression of my views to those issues, I dissent.
MR. JUSTICE MINTON joins in so much of this opinion as applies to Emspak v. United States, post, p. 190.
"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."
"Mr. QUINN. I would like to make a statement along the lines that Mr. Fitzpatrick made yesterday in regard to a question of that nature. I feel that the political beliefs, opinions, and associations of the American people can be held secret if they so desire.
"Mr. WOOD. And for those reasons do you decline to answer that question?
"Mr. QUINN. I didn't say I was declining to answer the question. Before I do answer the question I should like to say that I support the position taken by Brother Fitzpatrick yesterday.
"Mr. WOOD. Did you hear his statement yesterday?
"Mr. QUINN. Yes; I did.
"Mr. WOOD. Do you support it in its entirety?
"Mr. QUINN. In its entirety.
"Mr. WOOD. Is there anything else you want to add to it?
"Mr. QUINN. No; I don't.
"Mr. WOOD. Will you accept it as the expression of your views, then?
"Mr. QUINN. You may. I may add I feel I have no other choice in this matter, because the defense of the Constitution, I hold sacred. I don't feel I am hiding behind the Constitution, but in this case I am standing before it, defending it, as small as I am.
"Mr. WOOD. Having made that statement and subscribed to the sentiments expressed by the witness yesterday to whom you referred, will you now answer the question whether you are now or have ever been a member of the Communist Party?
"Mr. QUINN. I hold that the Constitution holds sacred the rights of people_____
"Mr. WOOD. You have stated your position. Having enunciated your sentiments and your position, will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer?
"Mr. QUINN. I decline to discuss with the committee questions of that nature.
"Mr. WOOD. Proceed, Mr. Tavenner.
"Mr. TAVENNER. I believe in the light of that answer it is not necessary to ask you any further questions relating to those matters, so I will ask you this: Do you know Mr. James J. Matles?
"Mr. QUINN. Yes."
On similar grounds, an acquittal was directed in United States v. Browder, unreported, Criminal No. 1784-50 (D. D. C.).
For examples relating to recalcitrant witnesses before state legislative committees, see Ex parte McCarthy, 29 Cal. 395, 398; People v. Keeler, 99 N.Y. 463, 471, 2 N. E. 615, 617; Lowe v. Summers, 69 Mo. App. 637, 645.
Recalcitrant witnesses before investigating committees of the British House of Commons have traditionally been apprised of the disposition of their objections and given subsequent opportunity to respond before being subjected to the contempt power of the legislature. The practice has been as follows: The committee reports the failure to answer to the House. The witness is questioned about the cause of the refusal to answer before the Bar of the House. The House then votes on the validity of the objection. If the claim is rejected, the witness is specifically directed to answer. Only after a subsequent refusal is punishment imposed. See 88 Journals of the House of Commons 212, 218 (Case of Elizabeth Robinson before Select Committee on Liverpool Bribery, 1833); 90 Journals of the House of Commons 501, 504, and 29 Hans. Deb., 3d Ser., 1249, 1279-1288 (Case of William Prentice before Select Committee on Great Yarmouth Bribery, 1835); 90 Journals of the House of Commons, 564, 571, 575 (Case of Lieutenant Colonel Fairman before Select Committee on the Orange Lodges, 1835); 152 Journals of the House of Commons 361, 365 (Case of John Kirkwood before Select Committee on Money Lending, 1897).
For Canadian practice, see the case of W. T. R. Preston before the Committee on Public Accounts, the Committee on Agriculture and Colonization, and the House of Commons. 41 Journals of the House of Commons, Canada, 298, 316, 323; 41 id., Appendix No. 2, 324-327; 41 id., Appendix No. 3, 250-251; 76 Debates, House of Commons, Canada, Session 1906, Vol. III, 4451-4535.
"The committee were impressed with the materiality of the testimony withheld by the witness, as it embraced the letter and spirit of the inquiry directed by the House to be made, but were anxious to avoid any controversy with the witness. They consequently waived the interrogatory that day, to give the witness time for reflection on the consequences of his refusal, and to afford him an opportunity to look into the law and the practice of the House in such cases, notifying him that he would, on some subsequent day, be recalled. This was the 15th of January instant. On Tuesday, the 20th instant, the said J. W. Simonton was recalled, and the identical question first referred to was again propounded, after due notice to him that if he declined the committee would feel constrained to report his declination to the House, and ask that body to enforce all its powers in the premises to compel a full and complete response." Id., at 403. See also id., 31st Cong., 1st Sess. 1716 (1850).
"Moreover, we feel bound to point out the probability that petitioner's ambiguous references to the Fifth Amendment (and those of the petitioner Emspak in No. 9), which he now contends constituted a claim of privilege, were phrased deliberately in such vague terms so as to enable petitioner (and Emspak) to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise. This suggestion is not based merely upon the obvious fact that it would have been extremely easy for petitioner to have informed the Committee that answers to its questions might incriminate or endanger him. It is also based upon facts of record, and matters appropriate for judicial notice, which reveal that petitioner (and Fitzpatrick and Emspak) had compelling and immediate reasons to refrain from making any public statements from which it might be inferred, properly or not, that they were Communists or Communist sympathizers." Govt. br., 33-34.