John T. Watkins v. United States

233 F.2d 681

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 22, 1956
• Docket: 12797
• Status: Published

Opinions

BASTIAN, Circuit Judge.

On May 11, 1954, the House of Representatives voted a contempt citation against appellant and on November 22, 1954, he was indicted under 2 U.S.C.A. § 192 on seven counts for refusal to answer questions of a subcommittee of the Committee on Un-American Activities as to whether some twenty-nine or thirty named persons had been members of the Communist Party. Having waived his right to trial by jury, appellant was found guilty in the District Court on all counts. He was fined five hundred dollars; execution of a one-year jail term was suspended and appellant was placed on probation. This appeal followed.

Appellant had been named as a member of the Communist Party for the period 1943-1946 by one Donald 0. Spencer, who testified before the Committee in a hearing in Chicago in September 1952. Appellant was identified again as a member of the Communist Party in the early 1940’s by one Walter Rumsey, who appeared before the Committee in March 1954.

In his appearance before the Committee, appellant answered questions concerning himself. He admitted cooperating with the Communist Party from 1942 to 1946 and answered concerning the extent of this cooperation. He denied past or present membership in the Communist Party and reiterated these denials specifically with respect to the details of, both Spencer’s and Rumsey’s testimony about him. In the course of this questioning, the following occurred:

[Joint Appendix, at 84, 85]

“Mr. Kunzig: Now, I have here a list of names of people, all of whom were identified as Communist Party members by Mr. Rumsey during his recent testimony in Chicago. I am asking you first whether you know these people. My first question: Warner Betterson?”

Watkins said he did not know the first three persons named. Then he was asked about a Harold Fisher whom he knew, and the following ensued [id. at 85, 86]:

“Mr. Watkins: Mr. Chairman, in regard to that question, I would like to make a very brief statement I

prepared in anticipation of this answer.

“Mr. Velde: You may proceed.

“Mr. Watkins: Thank you. I would like to get one thing perfectly clear, Mr. Chairman. I am not going to plead the fifth amendment, but I refuse to answer certain questions that I believe are outside the proper scope of your committee’s activities. I will answer any questions which this committee puts to me about myself. I will also answer questions about those persons whom I knew to be members of the Communist Party and whom I believe still are. I will not, however, answer any questions with respect to others with whom I associated in the past. I do not believe that any law in this country requires me to testify about persons who may in the past have been Communist Party members or otherwise engaged in Communist Party activity but who to my best knowledge and belief have long since removed themselves from the Communist movement.

“I do not believe that such questions are relevant to the work of this committee nor do I believe that this committee has the right to undertake the public exposure of persons because of their past activities. I may be wrong, and the committee may have this power, but until and unless a court of law so holds and directs me to answer, I most firmly refuse to discuss the political activities of my past associates.

“Mr. Kunzig: And I want to get this clear for the record. You are not in any way raising the fifth amendment?

“Mr. Watkins: I am not.

“Mr. Kunzig: But you are refusing to answer the question I have just asked you?

“Mr. Watkins: Based upon the statement just read, yes.

“Mr. Kunzig: And you, of course, have advice of counsel. He is sitting right next to you at this moment and you just conferred with him, is that correct?

“Mx*. Watkins: That is correct-

“Mr. Scherer: Mr. Chairman, I ask that you direct the witness to answer.

“Mr. Velde: Yes. This committee is set up by the House of Representatives to investigate subversion and subversive propaganda and to report to the House of Representatives for the purpose of remedial legislation.

“The House of Representatives has by a very clear majority, a very large majority, directed us to engage in that type of work, and so we do, as a committee of the House of Representatives, have the authority, the jurisdiction, to ask you concerning your activities in the Communist Party, concerning your knowledge of any other persons who are members of the Communist Party or who have been members of the Communist Party, and so, Mr. Watkins, you are directed to answer the question propounded to you by counsel.

“Now, do you remember the question that was propounded to you ?

“Mr. Watkins: I remember the question, Mr. Chairman, and I have read my answer which, among other things, states that your committee-may have this power, and I stand on my statement.” [Emphasis supplied.]

Similar refusals and directions to answer followed and, like those previously described in appellant’s testimony with regard to Fisher, they became the subject of the various counts of the indictment. In all, appellant refused to answer, although directed to do so, with respect to approximately thirty persons.

Appellant argues that the trial court erred in failing to grant his motion to dismiss the indictment or for acquittal. He says the Committee was exceeding its constitutional powers as a congressional investigating committee; that 2 , read together with the Committee's authorizing resolution, was so vague and indefinite as to deprive appellant of due process of law; and that the First Amendment protected appellant against being forced to answer the particular questions asked him.

We must delimit the question before us. A majority of the court is of opinion that Congress has power to investigate the history of the Communist Party and to ask the questions Watkins refused to answer. It would be quite in order for Congress to authorize a committee to investigate the rate of growth or decline of the Communist Party, and so its numerical strength at various times, as part of' an inquiry into the extent of the menace it poses and the legislative means that may be appropriate for dealing with that menace. Inquiry whether thirty persons were Communists between 1942 and 1947 would be pertinent to such an investigation. The questions asked Watkins could be asked for a valid legislative purpose.

The precise question upon which the decision must rest is a narrow one. It is whether the Act authorized the Committee to ask the questions asked Watkins, in the particular context in which the Committee propounded them, and whether the Committee’s purpose in asking the questions was a valid legislative purpose. A majority of the court is of opinion that the questions were pertinent to a valid legislative purpose and were authorized by the Act.

According to the Legislative Reorganization Act of 1946, 60 Stat. 812, at pages 822, 823,¹ the Committee on UnAmerican Activities is one of several standing committees elected by the House of Representatives. The act sets forth in no uncertain terms the subject and scope of inquiry intrusted to this Committee. It provides, 60 Stat. at page 828:

“ ‘(A) Un-American activities.

“‘(2) The Committee on UnAmerican Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (i) the extent, character, and objects of un-American propaganda activities in the United States/ (ii) the diffusion within the United States of subversive and unAmerican 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 (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.’ ”

In March 1954, the Committee conducted hearings in Chicago. At their commencement the chairman expressed the purpose of the hearings. It was to investigate, for a definite legislative purpose, communist infiltration into labor unions. The chairman stated [Joint Appendix, at 43, 44]:

“Mr. Velde: The committee will be in order. I should like to make an opening statement regarding our work here in the city of Chicago. The Congress of the United States, realizing that there are individuals and elements in this country whose aim it is to subvert our constitutional form of government, has established the House Committee on UnAmerican Activities. In establishing this committee, the Congress has directed that we must investigate and hold hearings, either by the full committee or by a subcommittee, to ascertain the extent and success of subversive activities directed against these United States.

“On the basis of these investigations and hearings, the Committee on Un-American Activities reports its findings to the Congress and makes recommendations from these investigations and hearings for new legislation. As a result of this committee’s investigations and hearings, the Internal Security Act of 1950 was enacted.

“Over the past fifteen years this committee has been in existence, both as a special and permanent committee, it has made forty-seven recommendations to the Congress to insure proper security against subversion. I am proud to be able to state that of these forty-seven recommendations, all but eight have been acted upon in one way or another. Among these recommendations which the Congress has not acted upon are those which provide that witnesses appearing before congressional committees be granted immunity from prosecution on the information they furnish.

“The committee has also recommended that evidence secured from confidential devices be admissible in cases involving the national security. The executive branch of Government has now also asked the Congress for such legislation. A study is now being made of various bills dealing with this matter.

“The Congress has also referred to the House Committee on Un-American Activities a bill which would amend the National Security Act of 1950. This bill, if enacted into law, would provide that the Subversive Activities Control’Board should, after suitable hearings and procedures, be empowered to find if certain labor organizations are in fact Communist-controlled action groups. Following this action, such labor groups would not have available the use of the National Labor Relations Board as they now have under the provisions of the Labor-Management Relations Act of 1947.

“During the first session of this 83rd Congress, the House Un-American Activities Committee has held hearings in Los Angeles and San Francisco, California; Albany and New York City, New York; Philadelphia, Pennsylvania, and Columbus, Ohio. We are here in Chicago, Illinois, realizing that this is the center of the great mid-western area of the United States.

“It cannot be said that subversive infiltration has had a greater nor a lesser success in infiltrating this important area. The hearings today are the culmination of an investigation that has been conducted by the committee’s competent staff and is a part of the committee’s intention for holding hearings in various parts of the country.

“The committee has found that by conducting its investigations and holding hearings in various parts of the country, it has been able to secure a fuller and more comprehensive picture of subversive efforts throughout our nation. Every witness who has been subpoenaed to appear before the committee here in Chicago, as in all hearings conducted by this committee, are known to possess information which will assist the committee in performing its directed function to the Congress of the United States.” [Emphasis supplied.]

Later, in April of the same year, at a continuation of the March hearings, the chairman, upon calling the committee to order, announced, just prior to the swearing of appellant [id. at 70]:

“Mr. Yelde: The Committee will be in order.

“Let the record show that I have appointed as a subcommittee for the purposes of this hearing Mr. Scherer, Mr. Moulder, Mr. Frazier, and myself as chairman.

“The hearing this morning is a continuation of the hearings which were held in Chicago recently by a subcommittee composed of Mr. Scherer, Mr. Moulder, and myself. At that time two witnesses were unavailable, at least the committee staff were unable to find these two witnesses to issue a subpoena for them. Subsequent to that time I believe that these witnesses have been subpoenaed, so we will proceed, Mr. Counsel, at the present time with the witnesses.”

In other words, the purpose of the Committee’s hearing was to aid it [the Committee] in its study of a proposed amendment to the Internal Security Act of 1950. That amendment was in fact enacted into law four months after appellant’s refusal to testify.² It made unavailable to labor unions found to be communist-infiltrated procedures established in the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq. This is a proper example of the exercise of a legitimate legislative purpose.

This court’s decision in Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 1948, 334 U. S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767, as well as the decisions in United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari denied, 1948, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122, and Dennis v. United States, 1950, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734, read in the light of Sinclair v. United States, 1929, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, establishes that the contempt statute, 2 U.S.C.A. § 192, when read together with the Committee’s authorizing resolution is not so vague or indefinite as to be invalid.

With respect to appellant’s claimed protection under the First Amendment, we refer to the Barsky case, supra, where this court indicated that, having power to inquire into the subject of communism and the Communist Party, Congress has the authority to identify individuals who believe in communism and those who belong to the Party, since the nature and scope of the program and activities of the Communist Party depend in large measure on the character and number of its adherents. In Barsky we said, 167 F.2d at page 246:

“If Congress has power to inquire into the subjects of Communism and the Communist Party, it has power to identify the individuals who believe in Communism and those who belong to the party. The nature and scope of the program and activities depend in large measure upon the character and number of their adherents. Personnel is part of the subject. Moreover, the accuracy of the information obtained depends in large part upon the knowledge and the attitude of the witness, whether present before the Committee or represented by the testimony of another. We note at this point that the arguments directed to the invalidity of this inquiry under the First Amendment would apply to an inquiry directed to another person as well as to one directed to the individual himself. * * * ”

And at page 247 we said:

“Moreover, that the governmental ideology described as Communism and held by the Communist Party is antithetical to the principles which underlie the form of government incorporated in the Federal Constitution and guaranteed by it to the States, is explicit in the basic documents of the two systems; and the view that the former is a potential menace to the latter is held by sufficiently respectable authorities, both judicial and lay, to justify Congressional inquiry into the subject. In fact, the recitations in the opinion of the Supreme Court in Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, are sufficient to justify inquiry. To remain uninformed upon a subject thus represented would be a failure in Congressional responsibility.”

Congress has before it the important duty to legislate effectively, but at the same time wisely, upon the problems posed by the world communist movement. It cannot perform that duty without information. It ought not try to perform it without information. We think the Act authorized an inquiry into infiltration by communists into labor unions and that this inquiry was such an inquiry. The face of the Act seems to us to speak for itself. The inquiry here is likewise plain on its face. It was whether certain persons, members of the union, were indeed communists. The inquiry was specific. It seems to us it was directly part of the inquiry the Committee was directed to make.

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.

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.

Appellant cites many authorities, beginning with Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, to the effect that Congress does not possess the general power of making inquiry into the private affairs of citizens. This point needs no additional exploration. The inquiry here had to do with a valid legislative purpose.

In Young v. United States, 94 U.S.App.D.C. 54, 212 F.2d 236, certiorari denied, 1954, 347 U.S. 1015, 74 S.Ct. 870, 98 L.Ed. 1137, this court pointed out that a committee, holding a hearing to substantiate an earlier report pertinent to legislation pending before the Congress, was engaged in a legislative function and its competency was not subject to question in a subsequent prosecution. Further in that case we indicated that this legislative purpose for which the subcommittee had convened was not vitiated by the incidental desire of the subcommittee to give interested parties a chance to reply to statements made in such report.

Having volunteered an attack on the credibility of a prior witness, appellant could not later refuse to answer questions concerning Communist Party membership of other union associates of appellant and of the prior witness on the ground that this particular phase of testimony was beyond the scope of the Committee’s investigating power. Indeed, an inquiry may not only be detailed when credibility is involved but “a legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.” Cf. Townsend v. United States, 68 App.D.C. 223, 95 F.2d 352, 361, certiorari denied, 1938, 303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121.

We have examined appellant’s other points urged on this appeal and find no error. The judgment of the District Court is

Affirmed.

BURGER, Circuit Judge, who took office after the hearing and consideration of this, case, took no part in its decision.

1 . See H.R.Res. No. 5, 83d Cong., 1st Sess. (1953) adopting provisions of the Legislative Reorganization Act as rules of the 83d Congress.

2 . The Communist Control Act of 1954 was passed in August 1954, 68 Stat. 775, 50 U.S.C.A. § 841 et seq. (Supp.1955). This contained, among other things, amendments to the Internal Security Act of 1950, 50 U.S.C.A. § 781 et seq. and had to do, in part at least, with infiltration by communists into- labor unions. Other changes having to do with communist infiltration into organizations were also included.