MR. JUSTICE GOLDBERG delivered the opinion of the Court.
This appeal presents the question of whether a person who has testified under subpoena before a congressional committee investigating the operation of the Antitrust Acts has testified in a "proceeding, suit, or prosecution under said Acts" thereby acquiring immunity from prosecution
The facts are undisputed. On September 6, 1962, appellee, along with other individuals and corporations, was indicted on charges of conspiring to fix milk prices and to defraud the United States, in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and the Conspiracy Act, 62 Stat. 701, 18 U. S. C. § 371. Appellee moved to dismiss the indictment on the ground, inter alia, that the prosecution was barred under the immunity provision of the Act of February 25, 1903, because he had previously testified before a subcommittee of the House Select Committee on Small Business concerning matters covered by the indictment. The Government opposed the motion to dismiss contending that the immunity provision of the Act of February 25, 1903, extends only to judicial proceedings and not to hearings before congressional committees.
We hold, for the reasons stated below, that the immunity provision of the Act of February 25, 1903, applies only to persons testifying in judicial proceedings, not to persons testifying before committees or subcommittees of Congress.
The immunity provision in question was enacted as part of an appropriations act which declared:
By any common-sense reading of this statute, the words "any proceeding, suit, or prosecution under said Acts" in the proviso plainly refer to the phrase "proceedings, suits, and prosecutions under said Acts in the courts of the United States," in the previous clause. The words "under said Acts" confirm that the immunity provision is limited to judicial proceedings, which are brought "under" specific existing acts, such as the Sherman Act or the Commerce Act. Congressional investigations, although they may relate to specific existing acts, are not
In Hale v. Henkel, 201 U.S. 43, decided only three years after the passage of the Act of February 25, 1903, this Court construed that Act in accordance with the plain meaning of its words as follows:
We conclude, therefore, that as enacted the Act of February 25, 1903, applies only to judicial proceedings.
This argument erroneously assumes that the Armour decision rested on a construction of "proceeding, suit, or prosecution" in the immunity provision of the Act of February 25, 1903. A reading of that decision reveals, however, that it rested primarily on the Commerce and Labor Act, which contained a specific grant of immunity to persons who testified in investigations, admittedly nonjudicial, conducted by the Commissioner of Corporations.
The controversial feature of the Armour decision, and the only one which Congress was interested in remedying, was the holding that unsubpoenaed and unsworn testimony came within "the purposes of Congress in passing the commerce and labor act . . . ." 142 F., at 819. Congress wanted to be certain that persons anticipating indictment could not immunize themselves from prosecution by volunteering to give unsworn testimony.
It is not at all significant, therefore, that Congress, while "remedying" the Armour holding that immunity could be obtained from testimony which was unsworn and voluntary, did not "remedy" the holding that immunity could result from testimony given in nonjudicial investigations conducted by the Commissioner of Corporations.
The limited purpose of the 1906 Act is also apparent from the response made by Senator Knox, the manager of the
Senator Knox responded as follows:
This Court in United States v. Monia, 317 U.S. 424, 429-430, recognized that "the sole purpose" of the 1906 statute was to limit immunity to persons "who, in obedience to a subpoena, testified or produced evidence under oath," so that the decision whether or not to grant immunity would be that of the appropriate "Government officials," rather than of private citizens anticipating indictment.
Our decision today is based solely on the language and legislative history of the relevant congressional enactments. Congress has extended immunity, with careful safeguards, to persons testifying before congressional committees in certain limited situations not here involved.
The District Court erred, therefore, in holding that appellee's testimony before a congressional subcommittee had immunized him from prosecution. The judgment dismissing the indictment is reversed and the case remanded for proceedings in conformity with this opinion.
It is so ordered.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting.
The appellee was indicted for conspiracy
The 1903 Act was amended in 1906 so as to limit its application "only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath." The Court holds that the word "proceeding" in the 1903 Act "applies only to persons testifying in judicial proceedings." This narrow and grudging interpretation of the Act is, in my judgment, not justified by either the language or the history of the legislation.
The Court appears to find much comfort for its holding in the Act's language appropriating funds to the Attorney General for the employment of special counsel and agents of the Department of Justice "to conduct proceedings, suits, and prosecutions under said [Interstate Commerce or Antitrust] Acts in the courts of the United
Judge Humphrey held that both the Commerce and Labor Act and the Antitrust Immunity Act now before us granted complete immunity. His holding as to the latter Act cannot be dismissed, as the Court attempts to do, by calling it "dictum."
The subsequent legislative treatment of the Antitrust Immunity Act of 1903 supports Judge Humphrey's holding that the complete immunity which that Act granted was not limited to testimony given in judicial proceedings only. The part of Judge Humphrey's opinion that caused great concern to the Government was his holding that witnesses obtained complete immunity from prosecution based on their testimony even though they had not been subpoenaed or put under oath. This concern prompted President Theodore Roosevelt to send a message to Congress requesting that the law be amended in this respect. The President's message specifically showed that he did not want to take away the immunity of witnesses who testified or produced documentary evidence, but simply wanted the law to grant immunity only to witnesses who appeared under subpoena and testified under oath—that is, those who were compelled to testify. Showing that this was his only objection to Judge Humphrey's holding, the President in his message told the Congress:
Senator Knox, the manager of the amendment in the Senate, thereupon explained the bill to Senator Daniel in detail, never contradicting what Senator Daniel had said on this point. Neither Congressman Littlefield, Senator Daniel, Senator Knox, nor any other member of Congress suggested altering the Armour holding that the Antitrust Immunity Act of 1903 was not limited to judicial proceedings—none, in fact, ever questioned it—because that holding, it may fairly be inferred, correctly read the intent of an almost identical Congress in passing the Act three years earlier.
From that day until this no one seems ever to have doubted that this reading of the 1903 Antitrust Immunity Act was correct. In fact, in 1942 this Court obviously read the statute the same way in United States v. Monia, 317 U.S. 424. Monia and another claimed complete immunity under that Act as amended in 1906 because they had testified before a federal grand jury inquiring into alleged violations of the federal antitrust laws. The Act
The Antitrust Immunity Act of 1903 was passed at a time when the fear of prosecution was making testimony
I would affirm the judgment.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
I am inclined to construe this Immunity Act more in harmony with its literal language than is the Court;
Congressional investigations as they have evolved, are in practice "proceedings" of a grave nature so far as individual liberties are concerned. Not all committee hearings are "trials" of the witness; not all committee hearings are televised or broadcast; and so far as appears this witness was not subjected to any such ordeal.
Courts cannot enjoin a committee from questioning a witness anymore than they can enjoin passage of a palpably unconstitutional bill. See Nelson v. United States, 93 U. S. App. D. C. 14, 208 F.2d 505. But courts, knowing the manner in which committees often operate, are properly alert either in denying legal effect to what has been done or in taking other steps protective of the rights of the accused.
The present investigation was in my view a "proceeding, suit, or prosecution" under the antitrust laws within
We have repeatedly said that a congressional investigation which exposes for exposure's sake or which is "conducted solely for the personal aggrandizement of the investigators or to `punish' those investigated is indefensible." Watkins v. United States, 354 U. S., at 187. Congress is not a law enforcement agency; that power is entrusted to the Executive. Congress is not a trial agency; that power is entrusted to the Judiciary. Some elements of a "fair" hearing are provided by Committee Rules (Yellin v. United States, 374 U.S. 109); some by constitutional requirements. By reason of the First Amendment Congress, being unable to abridge freedom of speech or freedom of the press, may not probe into what a witness reads (cf. United States v. Rumely, 345 U.S. 41), or why a publisher chose one editorial policy rather than another. Since by reason of the First Amendment Congress may make no law "prohibiting the free exercise" of religion, it may not enter the field through investigation and probe the minds of witnesses as to whether they go to church or to the confessional regularly, why they chose this church rather than that one, etc. By reason of the Self-Incrimination Clause of the Fifth Amendment, witnesses
There are other limitations. "The Senate, for instance, could not compel a witness to testify in a Senate investigation whose sole and avowed purpose was to determine whether a particular federal official should be impeached, since only the House can impeach. The House could not force a witness to testify in a House investigation whose sole and avowed purpose was to decide the guilt of a person already impeached, or to determine whether or not a treaty should be ratified, since the Constitution entrusts these functions to the Senate. Neither House could conduct an investigation for the sole and avowed purpose of determining whether an official of the State of New York should be impeached, since that determination is reserved to the Legislature of that State." Snee, Televising Congressional Hearings, 42 Geo. L. J. 1, 9 (1953).
In these and other related ways, congressional committees are fenced in. Yet in the view of some of us the tendency has been to trench on First Amendment rights. See Braden v. United States, 365 U.S. 431; Wilkinson v. United States, 365 U.S. 399; Barenblatt v. United States, 360 U.S. 109; Gibson v. Florida Legislative Comm., 372 U.S. 539. There was a time when a committee, knowing that a witness would not answer a question by reason of the Fifth Amendment, would not put the question to him. Today, witnesses who invoke the Fifth Amendment at the threshold have been minutely examined, apparently to see how many times they can be forced to invoke it.
A strong case has been made for holding these "spectacles" to be out of bounds:
President Truman condemned "spectacles" of that kind. His specific objection was directed to the televised hearings by the Kefauver Committee in 1951:
Alan Barth reviewed the nature of the "legislative trial":
Barth goes on to say:
Benjamin V. Cohen has shown why the legislative trial has no place in our system:
The legislative "trial" is a phenomenon that Senator Cain once described as a committee "running wild," becoming "victims of a wave of emotion which they created, but over which they had no control."
Some may see wisdom in this modern kind of "trial by committee," so to speak, with committees and prosecutors competing for victims. But the more I see of the awesome power of government to ruin people, to drive them from public life, to brand them forever as undesirable, the deeper I feel that protective measures are needed. I speak now not of constitutional power, but of the manner in which a statute should be read. I therefore incline to construe the Immunity Act freely to hold that he who runs the gantlet of a committee cannot be "tried" again.
"change of arrangement, which placed portions of what was originally a single section in two separated sections cannot be regarded as altering the scope and purpose of the enactment. For it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed." Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 227, quoting Anderson v. Pacific Coast S. S. Co., 225 U.S. 187, 198-199.
Certainly where, as here, the "change of arrangement" was made by a codifier without the approval of Congress, it should be given no weight. "If construction [of a section of the United States Code which has not been enacted into positive law] is necessary, recourse must be had to the original statutes themselves." Murrell v. Western Union Tel. Co., 160 F.2d 787, 788. Accordingly, in order to construe the immunity provision of the Appropriations Act of February 25, 1903, we must read it in the context of the entire Act, rather than in the context of the "arrangement" selected by the codifier.
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That under the immunity provisions in the Act entitled `An Act in relation to testimony before the Interstate Commerce Commission,' and so forth, approved February eleventh, eighteen hundred and ninety-three, in section six of the Act entitled `An Act to establish the Department of Commerce and Labor,' approved February fourteenth, nineteen hundred and three, and in the Act entitled `An Act to further regulate commerce with foreign nations and among the States,' approved February nineteenth, nineteen hundred and three, and in the Act entitled `An Act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes,' approved February twenty-fifth, nineteen hundred and three, immunity shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath." 34 Stat. 798, 15 U. S. C. § 33.
"In order to accomplish the purposes declared in the foregoing part of this section, the said Commissioner shall have and exercise the same power and authority in respect to corporations, joint stock companies and combinations subject to the provisions hereof, as is conferred on the Interstate Commerce Commission in said `Act to regulate commerce' and the amendments thereto in respect to common carriers so far as the same may be applicable, including the right to subpoena and compel the attendance and testimony of witnesses and the production of documentary evidence and to administer oaths. All the requirements, obligations, liabilities, and immunities imposed or conferred by said `Act to regulate commerce' and by `An Act in relation to testimony before the Interstate Commerce Commission,' and so forth, approved February eleventh, eighteen hundred and ninety-three, supplemental to said `Act to regulate commerce,' shall also apply to all persons who may be subpoenaed to testify as witnesses or to produce documentary evidence in pursuance of the authority conferred by this section." 32 Stat. 825, 828.
The Act of February 11, 1893, provides in relevant part:
"That no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission, whether such subpoena be signed or issued by one or more Commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled, `An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying." 27 Stat. 443-444.
It is true that the Monia opinion, with regard to the issue raised in that case, considered the 1903 Act as having the same effect as the Interstate Commerce Act. The issue in that case was whether a witness was required to claim his privilege against self-incrimination as a condition of obtaining immunity. It is undisputed that the 1906 Act standardized the rules relating to the types of testimony which would be privileged under the Interstate Commerce Act, the Commerce and Labor Act, and the Act of February 25, 1903. The 1906 Act did not, however, standardize (or alter) the types of proceedings in which immunity could be obtained.
Congressman Magee said in 97 Cong. Rec. A1145: ". . . there is no more reason for televising crime investigations than there is in televising criminal trials. Of necessity, many of our criminal cases develop lurid and obscene testimony. Some of it is unfit to put in public print. Certainly it is unfit to go out over the air waves. Many witnesses would despair at the thought of testifying when they were being viewed by television. It is bad enough for a timid witness to face a small courtroom of spectators; but it would be far worse if that person knew that he or she was being spied upon by television addicts all over the Nation. Certainly it would not be conducive to clear thought or expression. I cannot feel that the courts will ever force witnesses to subject themselves to this needless procedure. To me the whole idea is inane and repulsive. It would bring the Congress to a new low level in public esteem. The dignity of the courtroom would become only a memory while its sacred portals became a testing ground for the future Faye Emersons and Jimmie Durantes." And see Gossett, Justice and TV, 38 A. B. A. J. 15 (1952); Yesawich, Televising & Broadcasting Trials, 37 Cornell L. Q. 701 (1952); Arnold, Mob Justice and Television, 12 Fed. Com. B. J. 4 (1951); Klots, Trial by Television, Harper's, October 1951, 90; Report of the Special Committee on Televising and Broadcasting, 77 Rep. A. B. A., p. 607 et seq. (1952).
Telecasting and broadcasting of committee hearings are banned by the House. See 98 Cong. Rec. 1334-1335, 1443, 1567-1571, 1689-1691, 1949-1952, 5394-5395, A1152-A1153, A1176, A1180, A1196, A1227; 108 Cong. Rec. 267-269.
"This is not a case of pre-trial publicity of damaging material, tending to indicate the guilt of a defendant, dug up by the initiative and private enterprise of newspapers. Here the United States, through its legislative department, by means of an open committee hearing held shortly before the trial of a pending indictment, caused and stimulated this massive pre-trial publicity, on a nationwide scale. Some of this evidence was indicative of Delaney's guilt of the offenses charged in the indictment. Some of the damaging evidence would not be admissible at the forthcoming trial, because it related to alleged criminal derelictions and official misconduct outside the scope of the charges in the indictment. None of the testimony of witnesses heard at the committee hearing ran the gantlet of defense cross-examination. Nor was the published evidence tempered, challenged, or minimized by evidence offered by the accused." See Nelson v. United States, 93 U. S. App. D. C. 14, 208 F.2d 505.