Deutch v. United States – Oral Argument – March 22, 1961

Media for Deutch v. United States

Audio Transcription for Oral Argument – March 23, 1961 in Deutch v. United States

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Earl Warren:

Number 233, Bernhard Deutch, Petitioner, versus United States.

Mr. Sawyer.

Henry W. Sawyer, III:

May it please the Court.

This case is here on writ of certiorari to the Court of Appeals for the District of Columbia.

It’s an appeal from a conviction of contempt of Congress.

The facts are these.

The defendant — the petitioner Deutch was subpoenaed and pursuant to subpoena, appeared in Washington with his counsel.

He, there, went to the House Office Building and was then show into a room in which a number of unidentified gentlemen were present.

He was sworn, this being a subcommittee of the House Committee on Un-American Activities, he was sworn and the questioning commenced.

At this moment, he knew two things.

That he had been subpoenaed and that according to newspaper accounts, a man named Ross Richardson who had been a Cornell, a classmate of Mr. Deutch’s had named him as having been a member of the Communist Party while he was a graduate and also an undergraduate student at Cornell.

This letter about Mr. Richardson who was at that time an agent, an employee of the FBI he knew only from a newspaper account.

The subcommittee as it transpired by a later publication of a committee text was composed of Congressman Jackson as Chairman, Congressman Doyle and Congressman Scherer.

It appears that this Committee never heard any other witness on any other subject.

The questioning after the witness was sworn commenced as follows.

The Committee counsel turned to Mr. Deutch and said, Mr. Deutch during hearings at Albany last week —

John M. Harlan II:

What page is this, Mr. Sawyer?

Henry W. Sawyer, III:

On page 5 of my brief, sir, and also on page 16.

If I may read it aloud, Mr. Deutch during hearings at Albany last week, the Committee heard testimony regarding the existence of a Communist Party group or cell operating among undergraduates of Cornell University among certain graduates at Cornell and in the City of Ithaca.

In connection with that testimony, the Committee was informed that you were a member of one or more of those groups.

If so, I would like to ask you certain matters relating to your activity there.

Were you a member of the Communist Party at Cornell?

After objecting to the jurisdiction of the Committee and under protest as Deutch said as to the constitutionality of the proceedings, Deutch stated, “Yes, he had been a member of the Communist Party that he no longer was.”

He then proceeded under questioning to tell all about the size, the nature, the scope, the activities of this student group.

In the course of that he said this and I would like to quote if I may.

He said, When I was a — in the Communist Party, all that happened were bull sessions on Marxism and some activities like giving out a leaflet or two.

The people I met did not advocate the overthrow of the Government by force and violence.

And if they I had, I would never have allowed it.”

He then told about how Mr. Richardson, the FBI employee was his group leader, how he collected his dues and took him to meetings.

In fact, he said the last meeting that he had had was with Mr. Ross Richardson alone.

Henry W. Sawyer, III:

He told how the campus group became defunct.

How it consisted of about four or five people in the proceeding period that before it became as he said virtually defunct.

He said he never knew where the local branch of the Communist Party was.

He didn’t know of the central Committee of Ithaca or what it did.

He said that Andy was the only graduate student.

He was cross-examined on the question —

Potter Stewart:

Which have been very recent, a year or two before the (Voice Overlap) —

Henry W. Sawyer, III:

Yes sir that’s correct quite —

Potter Stewart:

Yes.

Henry W. Sawyer, III:

— quite recently within just cutting the last meeting with Ross Richardson if that’s counted as a meeting of the Party, it would — would have been just within the year, and because of the period I speak of when he went was April 1954.

Potter Stewart:

And this — and this — the petitioner was fairly newly out of Cornell.

Henry W. Sawyer, III:

Yes, sir.

He was at the time called a graduate student of Physics at the University of Pennsylvania, and having left Cornell and had been at Cornell a year before.

Potter Stewart:

Yes.

Henry W. Sawyer, III:

He was cross-examined on the remark and his point about force and violence by Congressman Jackson.

The Committee seemed satisfied that Deutch didn’t know any of the people he knew had ever advocated or believed in force and violence, and that he had himself the witness no knowledge of what the ultimate objectives of the party leadership might be.

This having been put to him and he said, No, of course I only know about the people that I knew.

He did refuse to answer five questions.

Each of those questions relate to another person and the answer to each of them would require the disclosure of the name of another person.

Those indictment questions were reduced to four by reason of acquittal on Count 3 and those questions appeared in the brief.

Excuse me, Your Honors — up to pages 8 and 9.

Were you acquainted with Homer Owen?

Who it was that recruited him?

One other student was that he’s been asking to join the party, the source of the contribution of $100 and the name of a man who was believed to have been a member of the faculty.

He was cited for contempt and was tried before Judge Holtzoff without a jury, sentenced to three months in jail and $100 fine.

The Court of Appeals affirmed and this Court granted certiorari on October 10th, 1960.

Potter Stewart:

Mr. Sawyer —

Henry W. Sawyer, III:

Yes, sir.

Potter Stewart:

— with respect to that — the sentence imposed by the District Judge and as our job here, to me the sentence is a little ambiguous.

Do you understand it to be a sentence of 90 days on each count?

Henry W. Sawyer, III:

Yes, sir.

Potter Stewart:

To run it concurrent?

Henry W. Sawyer, III:

Yes, sir.

Potter Stewart:

Let the — in the paragraph phase in more recently in Wilkinson case — the Braden case rather.

We thought that since concurrent sentences were imposed on each count, it was enough if the conviction on any one count were sustainable.

That is with respect to anyone questioned.

Henry W. Sawyer, III:

Mr —

Potter Stewart:

But since here the total sentence was for 90 days for all four counts without any explicit imposition of concurrent individual sentences and a total fine of $100 for all four counts.I wondered if that same approach would be taken care (Voice Overlap) —

Henry W. Sawyer, III:

Oh, I misunderstand —

Potter Stewart:

— examine all four of the questions.

Henry W. Sawyer, III:

Mr. Justice Stewart, I misunderstood.

I thought you were asking me whether or not he was sentenced to a total of 90 days or whether he was sentenced to a total of 90 days of times four.

Potter Stewart:

No.

Henry W. Sawyer, III:

We — we both can agree that the maximum sentence which he would serve would be 90 days.

Potter Stewart:

On all four counts.

Henry W. Sawyer, III:

On all four counts.

Potter Stewart:

That sounds (Voice Overlap)

Henry W. Sawyer, III:

Judge Holtzoff did not specify that he was sentencing separately and that they were concurrent.

He didn’t say one way or the other.

If I recall the record on that point, he just simply didn’t say.

Potter Stewart:

So that in that — for that reason, the approach taken on the Barenblatt case and then in the Braden case with respect to our being able to confine the examination to one question that we found — one indictment good that was sufficient, that approach is subject to some doubt on this case, isn’t it?

Henry W. Sawyer, III:

Well, Your Honor I have not argued it and until this moment at — very frankly, that has never occurred to me.

I’ve argued this case and the Government too and the Court’s — the appellate courts below have treated it as if the sustaining of one count would be sufficient although in passing I note that they sustained all four.

Potter Stewart:

Yes.

Henry W. Sawyer, III:

And I would be less than candid if I didn’t own to.

You’re right Justice Stewart that this is not a point, which I had a brief nor had even occurred to me until you suggested it sir.

Potter Stewart:

Well, maybe there’s nothing in it.

It’s just —

Henry W. Sawyer, III:

Well, I hope there is, sir.

I am not, however, in a position to help Your Honor my argument because I haven’t — haven’t briefed the point.

Henry W. Sawyer, III:

I have four points if I may proceed, Your Honors.

Four points of the argument are first of all the almost now traditional Watkins’ point of subject matter and the pertinency of the questions thereto.

The second point unique in this case is the fair of the Government’s proof at trial to conform at all with the record and the change — since the Barenblatt case in the Government’s position as to what the subject under inquiry was.

The third point is that in the context of this kind of investigation and with the information so fully supplied by the witness that the names of individuals per se could never be acquired in this kind of investigation pursuant to a valid legislative purpose.

And the fourth point is that in applying the balancing test suggested by this Court in the Barenblatt case between the First Amendment rights of the petitioner and the investigative power of the Congress that if there is ever to be a case in which that balance must still in favor of the First Amendment in terms of congressional committees, it — it must be this one.

Now, the first point which I have designated as the Watkins’ point, I must perforce by reason of time deal with in a most summary fashion.

We know that the requirement of this Court has been that the subject matter and the pertinency of the questions thereto appear to the witness at the time with indisputable clarity.

On this, we must recall that we now are talking about subject matter and pertinency of the questions only those that the petitioner refused to answer whether it was clear to him that the subject in general was communism at Cornell would not satisfy the requirement of the particular question such as Homer Owen, such as the source of $100 contribution, such as the student who recruited him, that pertinency and the link between it and the subject matter we say must appear with clarity.

Potter Stewart:

As —

Henry W. Sawyer, III:

On the —

Potter Stewart:

— far as we — we’re entitled to look at the whole record, didn’t we (Voice Overlap) —

Henry W. Sawyer, III:

Oh yes indeed, sir, we are.

We are entitled to look at the record as to the knowledge that he had.

There, in this case, we have of course no opening statement except what I read to Your Honor.

I read you verbatim the totality of any opening statement.

And there I submit that this is an element of the offense if the witnesses to be available to him only — the pertinency objection only if he makes the objection in proper terms, we must told the Government to what was said here and there, they said they want to ask him about his activity.

They did and he answered about his activity.

But there was no opening statement in the sense that there was in the Watkins or the Barenblatt case, no general statement or purpose.

John M. Harlan II:

Well, you have an opening statement a few days before the opening.

Henry W. Sawyer, III:

Yes, sir but the witness didn’t know anything about.

And we’ll take —

John M. Harlan II:

Did he — did he ask for any further information when he got — when he was examined?

Henry W. Sawyer, III:

No, sir.

I’m going to come to the point as to whether he raised that.

That is a separate point.

Did he raise it?

But — but he didn’t have it.

And he — he knew nothing about any statement.

I told the Court exactly what happened.

He walks on the room and he sworn the question he commences.

Charles E. Whittaker:

Did he place his (Inaudible) specific ground —

Henry W. Sawyer, III:

No, sir.

Charles E. Whittaker:

— that there wasn’t going to dispose a name, it didn’t bother at all?

Henry W. Sawyer, III:

Oh he said — he said I have moral scruples against it.

And he — he’d — of course he’d said that he raised the question of constitutionality and the jurisdiction.

But he said his motive in refusing to answer about other people was that he had moral scruples about the — informing on others.

He said that repeatedly.

Now, he didn’t say that — he didn’t make the specific pertinency objection if that’s what Your Honor’s — Justice Whittaker’s question is.

Charles E. Whittaker:

I was really going to go back and my question is that, whether or not isolated, they were leaving for refusal to answer to the specific thing that he was not willing to reveal the names of his friends.

Henry W. Sawyer, III:

Yes, sir.

He did.

I think it’s fair to say he did.

He said, I — I cannot bring myself to inform on other people.

Charles E. Whittaker:

So that might — get back to be argued was his (Inaudible), not that he didn’t understand pertinency of the law —

Henry W. Sawyer, III:

Oh yes.

Charles E. Whittaker:

— he just (Inaudible) going to answer to that reason.

Henry W. Sawyer, III:

That’s right sir.

We — we say, however, that the motive of the witness — the motive of the witness isn’t controlling, unless — let me put it this way.

Unless this Court is to hold back without a specific objection on pertinency specifically that — that it’s never necessary to have the subject matter appear with indisputable clarity.

If you’re to hold that, we have no argument on this point.But of course Watkins didn’t make any such specific objection.

It’s been treated as if it’s been specific.

But I have it set out in full what Mr. Watkins said on page 24 of my brief.

And he says very much that he says, I — I don’t think I have to inform on others.

And then he does go on after it’s quite a long thing here.

That he says, I don’t believe such questions are relevant to the work of this Committee and you — relevant is almost equivalent or pertinent,” but he didn’t make a formal objection and certainly Deutch did not either.

But when — but we — we do — and of course he had — let me just finish this part about — about what he had without the objection.

He had no opening statement because what they said in Chicago six months before, he — he’s not aware of or Albany.

No other witnesses were heard.

And unlike the — particularly the Wilkinson and Braden situation, this subcommittee floats ad hoc in absolute thin air.

Now, I don’t mean in the sense that they hadn’t been authorized to take testimony.

Henry W. Sawyer, III:

We stipulated that.

But authorized to take testimony about what?

There is no resolution passing from the parent Committee to this subcommittee, not a vestige in the record, not a word as to what this subcommittee, and remember the record shows that they never heard any witness on the other subject at any time, at any place, except Mr. Deutch what they were to do.

Now, sir, as to did the witness raise this point, we say if he has to say pertinency, he didn’t.

We think that in the colloquy, immediately concerning whether he should, so to speak, telling other people, in lay language in — I set that forth Your Honor in this page and half, in lay language he in effect did raise this point.

That’s on page 26 and all the way and down through 27.

Now, it’s — it’s raised with — somewhat awkwardly perhaps.

And the Government keeps saying, Well, he had confident counsel by his side.

It’s very flattering to me but I didn’t know anymore about the pertinency point in April of 1954 than the people who wrote the Watkins brief before this Court who didn’t mention it three years later.

But I do think it’s important to note that the counsel, you know, can’t make any objection.

He cannot be heard himself, he — before this Committee.

He may not even add — volunteer to advise his client on his own initiative.

He must wait till the client leads towards him and that the counsel before you and many others had been threatened with the objection for even presuming to volunteer advice when it was not solicited.

It’s a matter of which way the head moves and that was count — was commented upon by Dean Griswold, Your Honor in his book on the Fifth Amendment.

Felix Frankfurter:

Mr. Sawyer, would you help me.

I’m little bit — not clear.

I understood you to say or I may have misunderstood you.

I understood you to say that the objections here were the specific questions.

Henry W. Sawyer, III:

No, sir.

There — these objections 26 and 27 that Mr. Deutch made.

Excuse me sir.

Felix Frankfurter:

I thought that he had a pertinency.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

It’s the specific — a pertinency of specific questions.

Henry W. Sawyer, III:

No, sir.

I think it’s the pertinency, you see Mr. —

Felix Frankfurter:

Well — well let me ask you another question.

Henry W. Sawyer, III:

Alright.

Felix Frankfurter:

Was there any objection to the — to the authority of the Committee?

Henry W. Sawyer, III:

Oh, yes.

Henry W. Sawyer, III:

That was objected sir, generally.

Yes, sir.

Felix Frankfurter:

Generally.

Henry W. Sawyer, III:

In the very outset.

After that first question, he said that he objected and took issue with the jurisdiction of the Committee, he mentioned 601.

Well, the reason he knew about that was — of course, it was on the bottom of the subpoena, Public Law 601 as the enabling legislation.

And then he said, “Under protest as to its constitutionality, I will answer, yes I was a member.

I am no longer a member.

But then he comes along to this question of other people you see.

At 26 he says, “I am perfectly willing to tell about my own activities but do you feel I should trade my moral scruples by informing on someone else?”

And he — he puts at — I think a fair reading of this is that, that this is — this is now minor.

This — this was defunct.

Isn’t that in as a lay sense saying, “How does this relate to — to information which the nation must have the exigencies of National Security require?”

Felix Frankfurter:

I did not understand you to say that he didn’t — in answer to Justice Harlan, that he didn’t know what the general scope of inquiry was?

Henry W. Sawyer, III:

Yes, sir.

He didn’t accept as he derived from the questions.

Felix Frankfurter:

Well, I mean didn’t he — didn’t he say — did he raise that objection?

Henry W. Sawyer, III:

No sir.

He did not.

Felix Frankfurter:

Well then he didn’t — he did not raise objection to the — to the course of questions —

Henry W. Sawyer, III:

No, sir.

Felix Frankfurter:

— which were — to which he was being submitted, is that right?

Henry W. Sawyer, III:

Not on pertinency ground as such.

No, sir.

Felix Frankfurter:

Alright.

So then you — then you — that’s why I’m confuse.

Henry W. Sawyer, III:

Yes, sir.

No, I — I’m quite —

Felix Frankfurter:

I understood you to say —

Henry W. Sawyer, III:

— quite clear he did not raise.

Felix Frankfurter:

Yes.

Well, that’s why I’m confused now because I thought you did, but because — didn’t I have understood you to say he objected to the pertinency of certain questions, of a course of questions?

Henry W. Sawyer, III:

No, sir.

Not quite.

I think that the statement on 26 and 27 is that kind of request for information and the discretion of doubt as to pertinency in lay language which should have prompted the Committee to make some explanation and that the Committee said in response to that that decision, I — whether he should answer about it or did not rest with you.

Felix Frankfurter:

I’m — I’m sorry, I’m not clear even now.

I guess they don’t fit my questions.

If he didn’t object, if he didn’t say, I don’t know what your questions — what you’re — what you’re asking questions about.

He didn’t do that, did he?

Henry W. Sawyer, III:

No, sir, he did not.

Felix Frankfurter:

But he said I object to these questions.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

Well, now, how can there be an objection to relevance of these questions to a subject matter when he didn’t object to the whole subject matter?

If you didn’t object to the area into which they were entering, how could anybody say a question is in — is not pertinent to that area?

Henry W. Sawyer, III:

Well, I — I —

Felix Frankfurter:

That’s my trouble.

Henry W. Sawyer, III:

I see Your Honor.

I’m placing my emphasis on the phrase of the Chief Justice in the Watkins case when he says after discussing the pertinency thing.

He says, This is a jurisdictional concept of pertinency.”

And — and I think that it’s more than pertinency in the mere sense of relevancy.

It relates back through the chain of pertinency to the subject and then pertinency of the subject to a valid legislative purpose.

However, I would like to get on to —

Felix Frankfurter:

But you’re not —

Henry W. Sawyer, III:

— points that I think are stronger.

Felix Frankfurter:

— you’re not objecting to a valid legislative purpose.

Henry W. Sawyer, III:

Yes, sir.

Later on we are in point three.

As to the names of others, we say could never be under these circumstances, Congress — the information was Congress needs to legislate.

But then, Your Honors at trial, the Government was obviously apprehensive of whether or not a student group at Cornell, these people that discussed Marxism and gave out leaflets, wouldn’t be specially protected by the First Amendment, and if that was said to be the subject matter.

So what they did was to prove from the beginning of the trial to the end that the subject matter wasn’t the students at Cornell at all.

Henry W. Sawyer, III:

That it was investigation of labor in the Albany area.

The Government’s opening —

William O. Douglas:

I notice on the record at page 119 excerpts of a subcommittee hearing in Albany.

Henry W. Sawyer, III:

Yes, sir.

William O. Douglas:

Was — was that a part of the record of the hearing at which the petitioner was a part?

This is called — this is held in Albany.

Henry W. Sawyer, III:

Yes, sir.

William O. Douglas:

Were — were they —

Henry W. Sawyer, III:

No, sir.

William O. Douglas:

They were not in —

Henry W. Sawyer, III:

I must explain this, Your Honor.

Most awkward thing if Your Honors will look, I believe, in the front page, at least the clerk said there would be a (Inaudible) and by mistake several hundred pages of this document were printed in error, that’s not evidence at all.

Beyond he thinks — what happened was that the Government counsel at trial handed out a pamphlet which contained the two pages he won’t introduce and a lot of other material.

And the clerk — the stenographer in the District Court wrote on it in Government Exhibit Number 1 instead of saying Government Exhibit Number 1 pages 3, 4 and 5 only.

So when the clerk of this Court got it, the whole pamphlet was printed.

And that, of course, is 119 is in evidence at all.

That shouldn’t be printed.

It was an error only as printing Your Honor.

The Government started out and talked about Albany and they said the investigation was about the labor leaf of youth legal and break many matters like that.

None of which were touched on in — in the hearing.

They put in Government —

William O. Douglas:

Now, when you say —

Henry W. Sawyer, III:

— number 1.

William O. Douglas:

— when you say hearing, you mean hearing before the Committee.

Henry W. Sawyer, III:

Yes, sir.

William O. Douglas:

Not — not the — not the trial.

Henry W. Sawyer, III:

No, no.

The hearing, when I use the word hearing, I mean hearing as distinguished from trial.

They put in Government’s Exhibit Number 1 which is the —

William O. Douglas:

What course is that?

Henry W. Sawyer, III:

That — that is Record 38 and 40.

William O. Douglas:

Yes, it was —

Henry W. Sawyer, III:

And that was objected to and it was admitted to show this subject matter and only for that purpose.

And it may show the subject matter.

If it does, it shows that the subject matter was Albany and infiltration in the Albany area.

William O. Douglas:

Well, this — this was — was this at the hearing or this at the trial?

Henry W. Sawyer, III:

Introduce at the trial Your Honor.

The hearing just consisted of these questions that I reviewed about the Communist at Cornell and nothing about Albany or labor or anything like that.

Now, a trial —

William O. Douglas:

Do — do I have to — do I have to follow who was Mr. Tavenner to pick out what was said at the hearing or is there some group of pages here in the record that give me —

Henry W. Sawyer, III:

Deutch’s testimony.

Yes, yes indeed, Your Honor.

Deutch’s testimony is the Government’s Exhibit Number 5 and it’s 291 of the record.

William O. Douglas:

291?

Henry W. Sawyer, III:

Yes, sir and that gives you his entire testimony.

William O. Douglas:

Thank you very much.

Henry W. Sawyer, III:

Now, the Government put in —

William J. Brennan, Jr.:

Well, excuse me.

I — I know your time is short but beginning at 291, does that give us everything that took place at the hearing?

Henry W. Sawyer, III:

Everything.

Yes, sir.

Hugo L. Black:

291 to what?

To the end?

Henry W. Sawyer, III:

291 Your Honor to page 304.

Hugo L. Black:

304?

William J. Brennan, Jr.:

And that’s the transcript everything that occurred that day that it would appear before those three, is that it?

Henry W. Sawyer, III:

Yes, sir.

William O. Douglas:

That is the both side —

Henry W. Sawyer, III:

300 at the top of 305, excuse me.

Top of 305.

Henry W. Sawyer, III:

That’s the whole thing.

That’s all about it.

William O. Douglas:

Both — both sides agreed that the issues of pertinency — pertinency must be determined on the basis of these exhibits?

Henry W. Sawyer, III:

Oh, yes, sir.

But the point I’m on now is the discrepancy is a due process question as to trial because the Government — trial put in this Exhibit Number 1 that Deutch had never seen it and it says that the subject, there’s labor activities in the Albany area.

Exhibit Number 2 is the Chicago hearing, the one which was used in the Watkins case to prove that the investigation was in the labor.Government Exhibit Number 3 says that it’s an investigation of labor.

And these Your Honors, if Your Honors please, were all different subcommittees in the ones that heard Deutch but they’re same Subcommittees.

William O. Douglas:

They were introduced at the trial.

Henry W. Sawyer, III:

Over objection and trial.

For what purpose?

To show what the subject matter was.

Because at first, the Government has to prove a subject first before they can show anything is pertinent to it.

And — then the next point was the testimony of a man named Marqusee about how he got recruited into the UE He being a student at Cornell and — and the only trouble that is that they never asked Mr. Deutch about Marqusee, and Marqusee never — when he testified, never mentioned Mr. Deutch so there’s no connection there.

Then Mr. Tavenner takes the stand.

That’s the — they’re the only three exhibits that tend to approach subject and they’re introduced for that purpose.

Mr. Tavernner Committee counsel takes a stand and the Government says to him, Well, “how is it?

If the subject matter is Albany, how is it that when this Committee print came out — the little print of the Committee prints at the House Committee of — of Mr. Deutch’s testimony.

It says at the top education part A.

We said, “Oh well, the clerk put that on as a matter of convenience.”

Well, I said, Was there a connection between Albany and Mr. Deutch’s hearing?”

And Mr. Tavenner said, Yes, there was, but he didn’t say ever what it was.

He talked again about infiltration of this — connected he planned about Birmingham — Binghamton, about the — the practice as he said that concern the Committee and this was the closest he came.

He said there was a practice we found or we thought there might be where certain students in the Industrial Relation School at Cornell took summer jobs and in that way, they get into the UE.

And the Committee wanted to find out about that.

Well, if they did, they didn’t ever ask Deutch about it.

There’s not a word in his hearing and Justice Douglas at — I mean again the hearing before the Committee not a word do they advert to Marqusee or the Industrial Relations School or labor unions or labor and anything else.

It’s only that material about the students.

And the Government maintained this position throughout until Barenblatt came down.

When this Court found that the academic community was not a privilege sanctuary had no particular higher First Amendment status or anything else, the Government (Inaudible) and they said, “Well, it’s obvious the subject matters in the Cornell that you can see that by simply reading the hearing.”

Now, I think maybe the subject matter was Cornell.

Henry W. Sawyer, III:

I think the witness would lean that as the hearing went on.

I think we require more than that but my point now is that Section — Title 2192 does not punish or contempt — refuse to answer.

It punishes only a refusal to answer a question pertinent to the subject under inquiry.

There must, therefore, be proved that trial a subject.

It’s an essential element of the crime and we have a right to have the subject proved which is one, which corresponds to the facts of the hearing and at trial because we have to decide whether they’re cross-examined.

I didn’t cross-examine Mr. Tavenner because he’d been busy proving that the subject was labor infiltration in the Albany area and I knew that — that you could look at the hearing to your heart’s content, you never see a single question about that.

And the defendant might have taken the stand or the argument might have been made.

In fact, in — in my closing I renounce the right.

I said, If the Government had tried to prove or had offered proof that the subject was Cornell then I would have made the kind of argument appropriate to that proof.

William J. Brennan, Jr.:

Is that in the record?

Henry W. Sawyer, III:

Yes, sir.

But if they did not make that argument and they made an entirely different subject, not this subject up in Albany, and I might say parenthetically, the Government still entertains the — being hoped that it will be found that if it is in the Albany area, but if it is Washington is in the Philadelphia area because it’s further away between the two points and I think that’s quite clear.

I mean there’s a separate area of — of labor interest up there (Inaudible) and being disconnectedly.

Felix Frankfurter:

Mr. Sawyer.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

Would you be good enough to —

Henry W. Sawyer, III:

Excuse me.

Felix Frankfurter:

— refer me to the record where when Mr. Deutch was called, he said, from my point of view, he’s allowed to say, I’m not going to answer any of your questions because I don’t know what they’re serious about ” or what (Voice Overlap) —

Henry W. Sawyer, III:

We didn’t say that, Your Honor.

We didn’t say that.

We don’t contend that, sir.

Felix Frankfurter:

But then you don’t contend that when he began to be asking — to be asked questions, and when he began to answer, he did not object that there was no subject matter to which he was addressing himself.

Henry W. Sawyer, III:

No, sir we do not —

Felix Frankfurter:

Is that correct?

Henry W. Sawyer, III:

That’s correct.

Now, Your Honor our conclusion on that point is that due process requires that the defendant have a chance to meet the proof of every essential element at the trial not on appeal.

We’ve cited the cases which we think they’re in analogous where particularly the case, the murder case in which evidence was admitted, and then it said, Well, it could have been admitted for a different purpose on appeal.

But we had a right to be contrived with the subject matter of the hearing and not have some other subject matter contrive to which it was never mentioned at the hearing at all.

Felix Frankfurter:

Well, how was there any contradiction when you didn’t object to any subject matter?

Henry W. Sawyer, III:

Well, Your Honor, the subject matter has to be proved at trial as an essential element of the offense because the statute —

Felix Frankfurter:

I don’t understand that.

I don’t understand.

I’d supposed that the offenses are not answering questions which a Committee of Congress asked the defendant.

Henry W. Sawyer, III:

I beg it differently, Your Honor.

Sir, I do not think that’s the offense.

Felix Frankfurter:

Well — we — what is —

Henry W. Sawyer, III:

The offense I think is confusing answer.

Felix Frankfurter:

Because the offense is the old — what I used to know in my (Inaudible) 102 —

Henry W. Sawyer, III:

Yes, sir.

It’s still 102 sir, 192, but it doesn’t say that sir.

Felix Frankfurter:

Well, what was it said?

Henry W. Sawyer, III:

With all due respect it says, To refuse to answer questions pertinent to this subject under inquiry.

Felix Frankfurter:

Well, I — well I quite agree with that.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

But if a fellow doesn’t object to it’s having been pertinent to the subject matter, there must be a subject where people ask questions.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

Whether they’re in sequence or whether they’re for hearing.

There is a subject matter to which a question addresses itself.

Henry W. Sawyer, III:

Yes, sir.

And the Government has to prove it at trial.

And they have to prove at trial whether they’re objected to it or not because it’s an element of the crime.

If a statute says burglary, it’s the breaking and entering of a house in the night time and the witness doesn’t have to say, Well, I object they go about night time.

The Government has to prove that it was night time.

And —

Felix Frankfurter:

But you think the Government (Voice Overlap) —

Henry W. Sawyer, III:

Say and so in trial —

Felix Frankfurter:

I have great — I have (Inaudible) by analogies.

What the Government has to prove is that there was a subject matter under required.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

And it did prove that.

Henry W. Sawyer, III:

Yes, sir. (Voice Overlap) —

Felix Frankfurter:

It didn’t object to it.

Henry W. Sawyer, III:

No, sir.

And it proved to trial that the subject matter on their decree was the investigation of labor activities in the Albany area.

Felix Frankfurter:

I wouldn’t care what it was.

If you didn’t object to it, you didn’t say you’re asking about a subject matter to which you have not intended to ask me or as to which you are not authorize to ask questions, how can you say what the — the questions that were asked if you were not relevant to a subject matter.

I don’t understand it.

Henry W. Sawyer, III:

Your Honor, this part of the case is — is totally aside from the Watkins point of objecting the pertinency.

Felix Frankfurter:

Well, about Watkins.

All I know is you’re now saying, there is no proof the question will ask with reference to a subject matter and you tell me now that they say the subject matter was Albany and it should have been ethical.

Henry W. Sawyer, III:

It should have been (Voice Overlap) out.

Felix Frankfurter:

What difference does that make?

Henry W. Sawyer, III:

Because the Government has to prove it whether we object to it or not.

Felix Frankfurter:

But it proves —

Henry W. Sawyer, III:

So I didn’t say to you Your Honor.

Felix Frankfurter:

But it proves that there was a subject matter of inquiry.

Henry W. Sawyer, III:

Well of course, there was some subject but what’s the situation when the Government proves a subject at trial as an element of a case which is in fact contradiction to the actual subject matter of the hearing.

Felix Frankfurter:

How do you know it was in actual subject matter when you didn’t object to it, nobody raised the question.

Henry W. Sawyer, III:

Well Your Honor, there would be a subject matter whether objections were made or not, I think.

Felix Frankfurter:

That’s my point.

I agree with you.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

But I draw different conclusions from that sense.

Henry W. Sawyer, III:

I think we are in extricable in conflict on this point Your Honor.

Felix Frankfurter:

I start with for your — your last statement.

Henry W. Sawyer, III:

My third point, if I may, the one is that in this context of hearing where the witness has disclosed to the Committee so much and all in fact of a general nature or a specific nature, all except names along.

Under the ruling of this Court in Watkins reinforced in Barenblatt where it’s been held in traditional view that these Committees are restricted to acquiring that certain data which Congress needs in order to legislate that the names per se of witnesses could not be pursuant to a valid legislative purpose.

Now, we don’t say that this could never be true in a congressional investigation.

It might be, for instance, particularly in investigation of Government itself but where the investigation is — has into — in a field like this and where the witness has disclosed these broad aspects could names themselves be legislative data.

The legislative function as Court has said is certainly not exposure so they could not have wanted them for that reason.

Henry W. Sawyer, III:

They’re not — the legislative branch is not on the business of compiling dossiers of people or finding who’s been guilty of wrong doing or wrong thinking.

This is reserve to other branches of the Government.

They could hardly legislate in the sense with respect to particular persons and without running a file of the bill of attainder provisions.

And we think therefore under the document of separation of powers, it would be hard to see how the names alone would be necessary to the Congress in order to intelligently cope with the problem of — of communism, the problem that they have before them.

They must know, of course, the general size, quality, shape, scope, the actions of the — of the — if you will, the Communist even at Cornell and all of this they got and could have gotten as much as they wanted to presumably, the witness didn’t cut off the inquiry, it — as it happened in other cases, it was only the names.

And we therefore, our third point is that the requirements of this Court with respect to saying that Committees are restricted to that data which Congress the parent body needs to cope with an existing legislative problem at a law enforcement problem but a legislative problem would not justify the seeking of names by compulsory process.

Now, my last point Your Honor which is the First Amendment point, in which we take not the absolute but the relative position announced most especially by this Court in the Barenblatt case.

We say that to sustain this conviction in this case in the light of that balancing test is to go further than any case has and I suggest to the Court so far that it would be hard to conceive of a case in which the First Amendment rights might up way the investigative power.

Now, this Court has recognized the very real deterrent to political association with under orthodox groups involved in the prospect that those associating with such a group may later be called before congressional committee and have to own up to it.

This is the reason the First Amendment gets in to these cases.

Now, parenthetically, the Government has said, “Well, Deutch didn’t plead the First Amendment.”

Well, I — I submit that it is quite noble.

The First Amendment is not like the privilege against self-incrimination.

I don’t know what they mean by pleading the First Amendment.

It is efficient on Government if it has been transgressed by Government, no process can follow from it.

And I apprehend when hundreds of First Amendment cases nobody ever plot it when Jehovah Witness, for instance, was arrested for having no license to sell handbills from door-to-door.

I don’t suppose it was inquired as to whether or not he said to the county clerk in the courthouse when he didn’t get his license that he was pleading the First Amendment.

I don’t think it has to be pled as novel in the law.

But they then say, “But this man is actually trying to invoke the First Amendment rights of other people.”

Well, let it be clear that we are here invoking the First Amendment rights of this particular defendant and not others and we do it in the same way as the deterrent effect has been spoken up.

And we say that if it’s a deterrent to association with heretical movements or an orthodox movement that you may have to admit your own membership how much greater deterrent it is for a man of decency to know that he may also have to tell about the association with that movement of others and thus bring upon them the same dilemma which he then finds himself in.

Because many men, who I say, with impurity would dare to join such movements knowing that he might have to someday answer to it, would hesitate to do so if he also has to answer as to others.

And therefore, I submit that it isn’t the First Amendment rights of others.

It’s the First Amendment rights of this witness.

Now, as to his First Amendment rights, this Court has said that in many instances, they — the recognize that in many instances but not at all, some circumstances they have said the First Amendment, this is Barenblatt, protects an individual from being compelled to disclose association or relationship.

And then the Court said however, this is Barenblatt he quotes, Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involved a balancing by the Court of the competing private and public interest at stake in a particular circumstances shown.”

I say that nobody — no previous court has ever done that balancing test.

They simply say, “Well, these questions are about communism or this man was a Communist at one time.”

And that’s really essential to Government’s position today.

How do they meet the balancing test?

Henry W. Sawyer, III:

They meet the balancing test by saying, Well, we’re an area of Communist investigation.

Now, it’s true.

This Court has, since CIO against Douds, permitted governmental action with respect to Communist and the Communist Party which would not be permitted except for special and unique attributes of that party to wit through.

One that although it was a political party in some respects, it shades off into a conspiracy.

Secondly that among tenants which are merely collectible, unpopular or an orthodox, there is the tenant of force and violence of the Government — overthrow the Government.

And this Court from CIO against Douds, the parent — the Braden last week has said repeatedly that it this particular horror which has justified in this case interrogation but there are other things which would not be permitted where it not for the need for Congress be informed about this particular doctrine because of the importance of national security and self-preservation.

Now, in many other cases, intermediate steps such as, Were you a Communist?

The witness himself refuses to answer or other such questions have been justified as being witness having to compel to answer because this Court has said, Well, these are preliminary to get on to this question and to find out about force and violence.

What happens where the witness takes them — takes the Committee right in to the — to the midst of the — of the secret labyrinth and he talks about force and violence.

He’s disclosed all he knows about force and violence.

And if Your Honors will bear in mind, he was under oath, he was subject of course to the pains and penalties of perjury and surely this Committee had no affection for him, a reason to protect him and — at trial.

The Government, if these were not true had available to them.

His boss in the party, an FBI employee, Mr. Ross Ferguson who could have come in if this isn’t true.

And I submit that it must be accepted on this record that this witness has said all he knows about force and violence which is this group of student that he was involved with didn’t believe in it and as he said nobody ever advocated in my presence and if they had, I would not have permitted it.

And he then tells the Committee upon questioning, of course, he doesn’t know what the motives of the top leaders of the party is.

Well, he’s a witness.

That’s all.

And if doesn’t know, he’s exhausted.

Now, I say therefore to the Court that it would have the tail wagging the dog if you could have the witness who comes all the way to the question of force and violence and deals with it and this is unique in this case, Your Honor.

This has never construe of any of this contempt of Congress cases that have reached this Court, and I — I don’t know of no others whether even those aren’t here yet.

That whether the witness talks about force and violence and that that is the information which the committees must need to know about which justifies what would otherwise be infringement of political association rights, then I submit that that justification ceases to exist.

Aside from that, however, aside from this unique feature of the case, just in the general balancing as the Court said should be done in Barenblatt, the weighing between the need for Congress to know and to get data necessary to legislate and the admitted infringement of First Amendment rights inherent in the process of compulsory testimony, where could we — and this Court has said that if the balance still to a certain way, it will tilt in favor of the First Amendment.

They — the six scales are supposedly are indeed running — running free.

There may be — must be some cases where the First Amendment will prevail over the investigative power, how can we get one that in which the need for the Government to know the connection with national security, the importance of the information that conceivably could be here, could possibly be less in proportion to the First Amendment rights.

And both sides of the scale I say this case weighs higher.

First, we must have the preservation and I’m not saying again that there is a privilege sanctuary but if First Amendment rights stand high, they certainly must stand high with the student on a college campus more than even the professor because he is a student on a college campus.

If they — if he doesn’t have them the rights to be wrong if you will, the rights to make it jack ass out of himself in terms of joining this kind of a party at age of 19 and getting out at 22 or 23.

If he doesn’t have them in this context and I suggest we won’t find anyone whose rights in terms of communism will rise very much higher than this from the standpoint of the First Amendment and I suggest that on the other side of the scale, how can the Government of the United States and the Congress and all His Majesty be impeded by not knowing the name of the student who asked towards the age or 18 or 19 to join the Communist Party or the man that gave the $100.00.

Felix Frankfurter:

If — if you can conceive that this is possible that the question should become relevant in the court proceeding —

Henry W. Sawyer, III:

Oh yes Your Honor.

Felix Frankfurter:

— would then the claims to make a jack ass of himself bind from being a witness?

Henry W. Sawyer, III:

No, sir.

Felix Frankfurter:

Well, what’s the difference?

Henry W. Sawyer, III:

Well, Your Honor, the Court procedure and there are many contexts, citizens duty to give evidence.

He is called under all sorts of rules, we know the relevancy.

He has the protection of that.

But here, Your Honor, the investigative power of Congress is derivative only in the first place.

It only is the aide of legislation.

It isn’t part of the judicial process.

Felix Frankfurter:

I’m getting to one side your other points.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

I’m addressing myself to the First Amendment claim and to the extent if Congress can ask relevant questions.

It has the same power to compel this testimony from witnesses that the Court has.

Once you — I’m — I’m putting to one —

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

— side your relevance of the argument which I appreciate whatever value you think of it.

So I —

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

And I (Inaudible)

Henry W. Sawyer, III:

No, I understand Your Honor.

Felix Frankfurter:

But – but if it comes to the First Amendment, what difference is there would that be the power of Congress to compel — to exercise the power of testimonial compulsory relevant to an inquiry.

You put it on the ground that the kid has the right to make a jack ass out of himself.

Now, why can’t he had the same right, the same claim when he’s called in court assuming it’s relevant and say, “Gee, here, my success in Cornell, with Harvard and its (Inaudible) will be timid, therefore I’ll keep my mouth shut.”

Henry W. Sawyer, III:

So I think I can answer that sir I believe I can.

It’s because I apprehend that it is not the law and unlike the situation here is recently announced by this Court that there’s any balancing tests to the witness from the witness stand.

You see this —

Felix Frankfurter:

This Court has never said that — this Court has never said, you correct me if I’m wrong.

This Court has never said, I can’t imagine if it would say that provided is that all the other consideration, the duty to testify is less before a Committee of Congress and before the Court.

Henry W. Sawyer, III:

Your Honor, I’m relying on the balancing test as enumerated by this Court the majority therefore in the Barenblatt case in which this Court say that there are circumstances in which the First Amendment protects an individual before congressional committee from being compelled to disclose to the association or relationships.

The Court then went on and said where First Amendment rights are asserted before governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interest at stake and the particular circumstance is shown.

Felix Frankfurter:

But you know the conscience, Mr. Sawyer.

That — that case is talking about congressional investigation.

Henry W. Sawyer, III:

Yes, sir.

And that’s what —

Felix Frankfurter:

None concept to First Amendment as the First Amendment not apply to the court of law.

Henry W. Sawyer, III:

Of course it applies, Your Honor.

Felix Frankfurter:

Well, then the same consideration maybe raised by witness.

He may say.

This is so remote, the good it will do in this litigation but I don’t want to make a jack ass of myself and I’m great believer and the young making jack ass of themselves.

Henry W. Sawyer, III:

Well, Your Honor if — if he raises in the court of law, he gets a ruling by a judge that it’s either relevant or it isn’t irrelevant.

Felix Frankfurter:

Well, he got a ruling here from the tribunal which is power, forgetting your other point, which is power to elicit information to compulsory process otherwise congressional investigation that would be worth it, everybody could come as noted Congress.

The power of testimonial compulsion relevant to an inquiry if it is justifiable under the potentialities of legislation?

Henry W. Sawyer, III:

Yes sir, he got a ruling and we’re here asking this Court to overturn it.

Felix Frankfurter:

You overruled it.

What I am saying, why couldn’t you get as the same ruling if a court makes such a ruling?

Henry W. Sawyer, III:

I think there are circumstances in which it’s conceivable.

Felix Frankfurter:

Alright.

Henry W. Sawyer, III:

I — I should think it would be most and much less likely the Court with relevancy rules and with the — with the witness being called to testify to something that’s specific but I supposed we could think of a hypothetical case in which it might be that the witness in court would refuse.

Felix Frankfurter:

That would say that really I don’t — I don’t want to preach on myself.

Henry W. Sawyer, III:

Yes, sir.

Felix Frankfurter:

I sympathizes that, then our question, is it?

Henry W. Sawyer, III:

No, sir.

It is not the question.

When I said that that making a jack ass of out of himself, I’m just — I use that expression in the sense that if the First Amendment rights a behest First Amendment rights, I’m suggesting that as a student in the university, in terms particularly a political things that he certainly has that element of First Amendment rights which this Court has shown in the past a certain solicit to — to protect the right of inquiry.

Your Honors opinion on the Swizzie case, I think dwell upon that at concurring opinion at some length, the — the importance of the academic community and the terms of the First Amendment unless I misread the opinion.

Felix Frankfurter:

You have a — you have a right to — to try to reach a very strongly conviction I have on that subject.

But on the other hand, I’m confronted with the power of Congress which may be abused, this Court abuse their power which is — what is called an abuse that Court abused their power to severe sentencing, well I think they ought to give them, etcetera, etcetera.

We’re concerned with the power of Congress to elicit answers to compulsory because that’s the only way to do properly at all.

There’s lots of stuff going on in Congress and I think truly are and you may think truly are.

But I cannot see the difference so far as the First Amendment is concern if we have to put to one side the relevance of the inquiry between the Congress and the Court.

Henry W. Sawyer, III:

Alright, sir.

I’ll — I’ll accept to argue and that there’s no difference.

But I still — there being no difference, I still maintain Your Honor that when they ask questions here and had gotten all of the information that they did get but then to say that the names are necessary in the first place, is not pursuant to valid legislative purpose and I secondly say Your Honor, that I am throwing away the absolute position that they don’t have any right to asked these questions in this field at all because this Court has informed me so to speak by a series of five or five decisions that that is not the law.

But they have said that the law is that the courts will and they said must balance the First Amendment rights in the degree of infringement thereof in each of these instances.

It’s what said in the Barenblatt case, in each case against the need of the Congress and the public need to know.

And I submit to Your Honors that if there’s ever going to be a case in which the First Amendment rights of the witness be the same or different or lower or higher than he might have in the court or to prevail over the investigative power, I think this if is certainly the strongest one that is yet reach this Court and I submit that it is a strong and one perhaps is — is likely to transpire.

Felix Frankfurter:

But what you are — what you are arguing for is really the right of the witness — the right of the witness to determine, when he’s getting enough evidence that ought to satisfy the jury by the — the Committee.

What this witness said is I’ll tell you what I’ve given you or to satisfy, and your further inquiries are really so putative or so inclusive compared with the value that can make it out of it.

I determine this not you who have the power to compel me to testify.

Henry W. Sawyer, III:

No sir, not quite.

In this sense, this Court has said what it is that the Committee’s need to know which justifies what would otherwise be an infringement of the First Amendment namely this the — this — our key and aspect of the conspiracy, the doctrine of force and violence.

And this Court has said that.

This Court from — from the CIO against Douds case on has repeatedly said it is only because this isn’t just a political party, this Court is not lying.

This Court knows that it’s more than a political party.

Felix Frankfurter:

But if he makes the denial.

The Committee must stress with that denial.

Henry W. Sawyer, III:

Well, Your Honor, they could have all kinds of opportunities to — the record stands — they could have brought Ross Richardson at the trial if that isn’t true.

They — they had —

Felix Frankfurter:

Don’t you often make choices into which way to elicit questions and to some of witness at the bar?

Henry W. Sawyer, III:

Well, if Your Honor means that we do not accept this true, Mr. Deutch’s statement that now the people he knew, believed in force and violence.

Felix Frankfurter:

He may not know all he thinks he knows.

That happens to me constantly that I thought I knew more until people expose my ignorance.

Henry W. Sawyer, III:

Accepted Your Honor as even that he doesn’t know all he knows.

But contempt of Congress is in essence to withholding of information and he couldn’t give them information he didn’t know about whether he’s wrong or right, he is exhausted his knowledge on the subject.

Felix Frankfurter:

No he hasn’t because he has withheld information about people who may shed additional light on the subject.

Henry W. Sawyer, III:

Yes, sir.

That — that indeed he has but if again, there are cases and I submit that there are Barenblatt is one of them, there are number of the cases, Your Honor in which the questions as to identities, in this case of the witness whether he was a Communist having justified because, as I believe, he just steps in order to get to this question of force and violence.

This witness went all the way to force and violence.

And looking for the steps on the way is I think to have the tail wagging the dog, sir.

Earl Warren:

Mr. Maroney.

Kevin T. Maroney:

Mr. Chief Justice and may it please the Court.

I think in the few minutes remaining this afternoon, I might try it very briefly run over some of the circumstances which let up to the petitioner’s being subpoenaed before the Committee and his appearance before the Committee.

Now, in July of 1953, the Committee — House Committee Un-American Activities began a general investigation of Communist Party activities in the Albany area.

Mr. Tavenner, the Committee Council testified at the trial that this was part of a general investigation of Communist activities in key areas throughout the United States.

The Committee suspended him after a few days taking testimony.

William O. Douglas:

But they — those were not introduced or referred to in these hearings, were they?

Kevin T. Maroney:

The opening statement is a part of the record.

The opening statement at the July 1953 hearings is part of the record at pages — beginning at page 38 and going over to page 40.

William J. Brennan, Jr.:

Yes, but that was not introduced.Let’s say that this man testified though.

Kevin T. Maroney:

Now this was introduced at the trial Your Honor to show the background.

William J. Brennan, Jr.:

At the trial on the —

Kevin T. Maroney:

Well, let — that’s right at the trial.

William O. Douglas:

Counsel, maybe you don’t have very much time but maybe if I ask you a question you can perhaps tomorrow, those are laid upon one of my difficulties.

Suppose — suppose that I am summoned by Committee and ask one question, what is your name and I refuse to answer and that’s all there is to it.

Then the trial comes on in the Court.

And the only record before the Committee is just those that bears question and answer and refusal.

And then the Committee at the trial seeks to establish the ingredient of — of the crime of pertinency by putting in hearings on — and other times involving other people on other issues, can they use that against me?

That’s my — that’s one of my difficulties with this case.

Kevin T. Maroney:

Well, I think on — on this point, Your Honor and — and I think we’ll elaborate on it tomorrow, I think there are two concepts of pertinency which we — we have to deal with here and one is the question of proof of actual pertinency at the trial to comply with the statute, which is a — a question as to whether or not the question asked by the Committee was within the power granted to the Committee to investigate.

If it’s an appeal, if the question relates to appeal that has been assigned to the Committee to investigate and — and that question relates to the appeal then I think the Government had shown actual pertinency.

Potter Stewart:

It’s a little narrower than that, isn’t it, Mr. Maroney?

The question has to be pertinent to a topic then under inquiry by the Committee as — and also one that the Committee has been authorized to investigate.

Kevin T. Maroney:

That’s right, but I think the Government only has to show a particular topic then under inquiry aside from the question itself.

If there is an objection on the ground of pertinency, I think that’s what the decisions —

Hugo L. Black:

Why do you say that?

Potter Stewart:

I — I haven’t understand — understood to be that.

Hugo L. Black:

Why do you say that?

The indictment charges in language of its own, they asked him questions which were pertinent to the question then on the inquiry.

Is the Government free in this kind of case freed from the duty of proving beyond a reasonable doubt of that allegation?

Kevin T. Maroney:

No, sir.

Kevin T. Maroney:

I think it does have to prove at that question.

Hugo L. Black:

You don’t think they can get to sue him —

Kevin T. Maroney:

Oh no.

Hugo L. Black:

— (Voice Overlap) question was asked.

Kevin T. Maroney:

Oh no, I think it’s a question of whether that question relates to a topic as a — as a matter of law which hasn’t been assigned to the Committee as being within the power of the Committee to inquire into —

Hugo L. Black:

Whatever —

Kevin T. Maroney:

— and if it is —

Hugo L. Black:

— whatever it is, you agree, do you not, the duty is on the Government through beyond a reasonable doubt, the questions that asked were pertinent, holding — convicting the man.

Kevin T. Maroney:

That’s right, sir.

Now, in — in this particular case, these hearings of which this hearing was — was bought apart, this isn’t a completely separate independent hearing, this is a part.

William O. Douglas:

Isn’t so far as this petitioner goes?

Kevin T. Maroney:

Oh I — I mean —

William O. Douglas:

Well, that’s (Voice Overlap) —

Kevin T. Maroney:

That’s his — that’s his approach to it.

William O. Douglas:

Yes.

Kevin T. Maroney:

But I — I don’t think it is anymore than a witness appearing in a courtroom on the second day of trial and being asked as to what he may know of a particular case can just separate himself from the overall purposes of the trial.

The — the Court is inquiring into guilt or innocence perhaps in a — in criminal case.

As far as a particular witness is concern, it maybe only asking him, “Did he sell the murder weapon to the defendant?”

But the — the Court is inquiring into a question of whether or not the defendant committed murder perhaps.

Felix Frankfurter:

Why don’t you refer to page 293 when Mr. Tavenner told Mr. Deutch what the hearing in Albany was about and then Mr. Deutch conferred with Mr. Sawyer, his lawyer?

And then decide to answer some questions on the (Inaudible) decide to answer other questions not at all.

Kevin T. Maroney:

That’s correct, sir.

Felix Frankfurter:

He told him exactly what took place at Albany.

Kevin T. Maroney:

There’s ample evidence here of pertinency and — and the subject —

Felix Frankfurter:

Is it —

Kevin T. Maroney:

— under inquiry.

Felix Frankfurter:

— in the hearing the before the Committee why Mr. Deutch was on the stand.

Kevin T. Maroney:

That’s correct, sir.

Hugo L. Black:

Now, do you think — will you state tomorrow, do you agree with what seemed to be the implication of the question as it had been asked here, that although the statute requires proof of pertinencies to make a crime and indictment charges that it was pertinent that further the — of course, the man had not asked whether it was pertinent or not back when the hearing was held.

That relieves the Government of proving it was pertinent beyond a reasonable doubt.

Earl Warren:

We’ll recess now Mr. —