Hutcheson v. United States

PETITIONER:Hutcheson
RESPONDENT:United States
LOCATION:United States Senate

DOCKET NO.: 46
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 369 US 599 (1962)
ARGUED: Nov 06, 1961
DECIDED: May 14, 1962

Facts of the case

Maurice A. Hutcheson, a president of a labor union, refused to answer eighteen questions before the Senate Select Committee on Improper Activities in the Labor or Management Field. Although Hutcheson appeared to be concerned about the state using his words against him in a pending state criminal trial, he specifically waived his Fifth Amendment privilege against self-incrimination. Instead, he argued that the Committee only wanted to expose his wrongful acts, and that this exposure would violate his rights under the Due Process Clause of the Fifth Amendment because the Committee’s questions acted as a “pretrial” of the state charges.

The United States District Court for the District of Columbia found the union president guilty of contempt of Congress. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed the judgment. Hutcheson appealed the appellate court’s decision.

Question

Do questions at a Senate Committee Hearing that relate to the witnesses’ ongoing state criminal proceedings violate Due Process?

Earl Warren:

Maurice A. Hutcheson, Petitioner, versus United States.

Colonel Wiener.

Frederick Bernays Wiener:

Mr. Chief Justice, may it please the Court.

The essential question in this case is whether a Congressional Committee in the course of pre-trying state criminal matters may force a witness to invoke the privilege of self-incrimination on pain of going to jail for contempt of Congress, if the he rests his refusal on the Due Process Clause.

More specifically, when the petitioner was called as a witness, he was then under state indictment.

The Committee said it would not question him regarding the subject matter of that state indictment.

It then asked him questions, affirmative answers to which would have been admissible at the trial of that indictment and he refused to answer on the ground that it would aid the prosecution unless be in denial of due process of law, and he was asked whether he claimed his privilege against self-incrimination, and he said no and he was asked whether he contented the due process included the privilege against self-incrimination, and he said he didn’t know the answer.

Now, the prosecution says here that if he had invoked the privilege against self-incrimination, he would be in the clear, but since he rested his refusal on a — an asserted denial of due process of law, he must go to jail.

Let me now state the facts in greater detail.

When this petitioner was called as a witness, he had — he was under indictment, returned in the State of Indiana, the first count charging a conspiracy, the second count alleging bribery.

The dates of the acts alleged in the indictment were 1956.

The indictment was returned in Marion County, Indiana in 1958.

The Committee said specifically that they would not inquire into the subject matter of the Marion County indictment, but the Committee did inquire about matters between the date that the indictment was returned, and the date of the acts alleged in the indictment, namely, allegedly improper efforts in 1957 to head-off an indictment in Lake County.

Now, the subject matter of the inquiry, as stated by counsel for the Committee was this, page 23 of the record, top of the page, “We are inquiring into the situation in connection with the presentation before the grand jury in Lake County, Indiana; the intervention by certain union officials into that matter, and the part that was played by Mr. Hutcheson himself,” that’s this petitioner, “Mr. Sawochka, the Secretary-Treasurer of Local 142 of the Teamsters, and Mr. James Hoffa, the international president of the Teamsters.”

There is a writ — an issue here which I will deal with later in detail as to whether there was any relation between this inquiry and the indictment as I will indicate the prosecution now concedes such a relationship.

Following the background state that I have quoted, four witnesses were called and — to testify about the Lake County activities.

Three claimed the privilege against self-incrimination.

One claimed the attorney-client privilege.

All those claims were respected.

Thereupon, the Committee called a man named Blaier, who was a codefendant with petitioner in the Marion County indictment, and when they asked him about the Lake County matters, he refused because it might aid the prosecution in the case in which I am under indictment and he was permitted to go on his way.

He was the second general vice president of the Carpenters Union, the United Brotherhood of Carpenters and Joiners of America.

And then they called the petitioner, who is the general president, and he was asked about the Lake County transactions, he also refused to answer, but his ground for refusing is on pages 122 or 123 of the transcript was this.

“It relates or might be claimed to relate to or aid the prosecution of the case in which I am under indictment and thus be in denial of due process of law.”

Earl Warren:

How was that different from Blaier’s refusal of —

Frederick Bernays Wiener:

There are only two differences, this petitioner added in denial of due process of law.

Earl Warren:

I see.

Frederick Bernays Wiener:

Now, there may also have been a difference, he was the president and the other fellow was the second vice-president.

Now, when he stated this quoted ground for refusal, he was asked, “Do you claim the privilege against self-incrimination?”

“No,” and he disclaimed that consistently and then he was asked, “Do you contend that due process includes the privilege against self-incrimination?”

He said, “That’s a legal question, I’m not qualified to answer it.”

Frederick Bernays Wiener:

They didn’t ask him further.

They didn’t ask his counsel who was present for elucidation, but unlike Blaier who was permitted to go on his way, this petitioner was directed to answer and when on 18 separate occasions he refused to answer, he was cited for contempt and this prosecution followed.

John M. Harlan II:

(Inaudible)

Frederick Bernays Wiener:

Yes, they were, Your Honor.

At the close of petitioner’s testimony, the Committee Chairman made this statement, pages 153 and 154 of the record, “The testimony further indicates that certain high officials of both the Teamsters and the Carpenters Unions, two of the largest unions in the country, with the help and assistance of Mr. Raddock were involved in a conspiracy to subvert justice in the State of Indiana.

All the facts regarding this conspiracy undoubtedly have not been developed by the Committee.

Further exposure we believe can and should be made.

We will be glad to assist and help law enforcement officials in the State of Indiana if they determine that they would interest themselves in the matter.”

Now that —

Earl Warren:

Was that contemporaneous with the — with the hearing itself?

Frederick Bernays Wiener:

It was part of the hearing.

It was at the close of petitioner’s testimony.

This statement was read. Then at petitioner’s trial, the Committee Chairman was called as a prosecution witness to explain the statement.

And in the course of his sworn testimony at this trial for contempt of Congress he said, “Our legislative purpose is to search out and find if crime has been committed.”

John M. Harlan II:

Where is that?

Frederick Bernays Wiener:

That is at page 165 of the record.

Petitioner was tried without a jury and the judge convicted him on the ground, the stated ground, record 174, that the only recourse he had for not answering questions put by the Committee was to invoke the privilege against self-incrimination.

And the prosecution now says that if he had invoked the privilege against self-incrimination, he would in the clear, but that since he rested his refusal to answer on an asserted denial of due process of law, he’s got to go to jail for six months.

Now, this morning here, if the Court please, I propose to discuss three basic propositions.

The first, that it is a violation of due process for a legislative Committee to pre-try a criminal case.

The second, that it is a violation of due process to force a party to make a discovery that would expose him to penalties, and the third, that the questions now under consideration were not asked in pursuance of any legitimate legislative purpose, but before I can get to those three basic propositions, I must pause to dispose of two preliminaries.

Earl Warren:

Doesn’t the last question come first?

Frederick Bernays Wiener:

Possibly so.

It could be disposed off on that ground.

But before I get to either of the three, I’ve got to deal with two preliminaries, and the first preliminary is the relationship between the Marion County indictment alleging acts in 1956, and the Lake County transactions supposed to have taken place in 1957.

And the relationship is this, that as a matter of Indiana law, any improper effort to head-off or discourage or stop or quash a prosecution is admissible as evidence of consciousness of (Voice Overlap) of the substantive offense and the prosecution, in their brief here, concede that affirmative answers to the questions about the Lake County activities which they referred to succinctly, if somewhat inelegantly, as the attempt to fix, would be admissible at — would’ve been admissible at the trial of the Marion County indictment.

This is actually the most significant con — concession because the record shows that petitioner’s counsel tried diligently and persistently to demonstrate to the Committee the relationship between these questions they were asking and the pending indictment.

The Committee seems to have been completely hypnotized by the chronology.

These were questions about matters occurring in 1957, the last acts alleged in the indictment were in 1956.

How could there be any relationship, but under the Indiana rule, there is a relationship and the parties agree.

Frederick Bernays Wiener:

Now the second preliminary point is that penalties and disadvantages would have accrued to this petitioner if as the prosecution now says he might have done, if he had invoked the privilege against self-incrimination in turn — in terms, and that would have been involved three demonstrable disadvantages.

Disadvantage number one; in the expressed view of the Committee Chairman on this record, and in the subsequent Committee report which has been incorporated by reference into this record, it would be perfectly — it’s perfectly plain that any invocation by a witness of the privilege against self-incrimination was treated as tantamount to an admission of guilt.

Now I’m familiar with the cases here that say otherwise, but this was according to that branch of the Government, they had their own views.

If anybody invoked the privilege against self-incrimination before them, that proved his guilt.

Second disadvantage, if petitioner had invoked his privilege against self-incrimination, there would have been a problem concerning his continued tenure of his union office in view of the AFL-CIO Code.

Now the precise terms of that Code are not in evidence and not part of the record, but petitioner admitted in response to questions by a member of the Committee that he was concerned about it.

And the third disadvantage that petitioner would have incurred if he had invoked his privilege against self-incrimination is this, that if at the impending Indiana trial, he had taken the stand as a witness, any prior claim of privilege on his part regarding the same subject matter could have been made the subject of prosecution comment against him.

That’s perfectly plain as the matter of Indiana law.

Now the prosecution says Indiana couldn’t constitutionally do that, and they cite the Slochower case, in the 350 United States.

I don’t think the Slochower case says anything to that effect.

After all, the cases of Twining against New Jersey and Adamson against California are still law.

They were reaffirmed only last term in Cohen against Hurley.

And they say that where a defendant in a criminal case doesn’t take the stand at all, the prosecution can comment on it.

That is not so in Indiana.

If an Indiana criminal defendant does not testify, that fact cannot be commented on.

But if an Indiana defendant does testify, then the prosecution may use the fact that on some previous occasion he has claimed his privilege with respect to the questions being asked.

So that at the very least, if he had — if petitioner had before the present Committee claimed — done what the prosecution says he should have done in order to be in the clear in respect of contempt of Congress, he would have hurt himself at the Indiana trial if he had taken the stand, and at the very least, he would have circumscribed his freedom of action at that trial.

And now, with these two preliminaries out of the way, I come to the first proposition that it is a violation of due process of law for a legislative committee to pre-try criminal cases, and the first issue between the parties here is was there any pretrial in fact?

And we say the Committee was all too obviously pre-trying a potential criminal case in its entirety, namely, the alleged obstruction of justice in Lake County, Indiana.

Now that pros — that pretrial started with an accusation, namely the background statement by the Committee counsel which I have already quoted and then that pretrial ended with a verdict by the Committee Chairman.

The testimony further indicates that certain high officials evoked the Teamsters and the Carpenters Union, with the help and the assistance of Mr. Raddock, were involved in the conspiracy to subvert justice in the State of Indiana.

And then finally, there was a formal judgment of conviction entered by that verdict in the Committee report.

In one of its findings, its — I’m reading from page 26 of petitioner’s brief, one of the Committee’s findings was from the evidence the Committee also finds that Maxwell C. Raddock was used by Hutcheson as a fixer in an attempt to head-off the indictment of Hutcheson, the Carpenters Vice President, O. William Blaier and the Treasurer, Frank Chapman.

John M. Harlan II:

Where is that?

Frederick Bernays Wiener:

That is at page 26 of petitioner’s brief.

It is pro — a quotation from page 590 of the Committee’s interim report which was incorporated by reference into the record.

It’s at page 26 of the blue brief.

Potter Stewart:

Colonel Wiener, the — the indictment which was actually pending involved a charge not of obstruction of justice, but rather of land fraud, did it not?

Frederick Bernays Wiener:

That is correct and the — and the asserted conspiracy to obstruct justice was the effort to head-off in 1957 an indictment in the Lake County for these lands frauds, and that the indictment was returned about six months later in the adjoining County of Marion.

Potter Stewart:

For obstructing justice — the charge in —

Frederick Bernays Wiener:

No, on the substantive charges.

Potter Stewart:

Right.

Now, this —

Frederick Bernays Wiener:

The substantive charges were conspiracy and bribery in connection with a highway method —

Potter Stewart:

Selling land to the state?

Frederick Bernays Wiener:

The obstruction of justice was the effort to — alleged efforts to head-off indictment for that offense in Lake County.

Potter Stewart:

Now was there ever an indictment for obstructing justice?

Frederick Bernays Wiener:

No, there was not, but bribery which according to the Committee’s report was involved, bribery is a crime in Indiana.

Conspiracy is a crime in Indiana.

Compounding a felony is a crime in Indiana.

Compounding a prosecution is a crime in Indiana.

So that if — what this Committee did wasn’t the pretrial of a potential criminal case, then I don’t know what pretrial is.

Potter Stewart:

Now, the very purpose of the Committee, it’s very authorizing resolution, created it for the purpose of investigating criminal activity among (Voice Overlap) —

Frederick Bernays Wiener:

Yes, and I will — I will at the third point which — now, two members of the Court think I’m taking up out of order.

I will discuss that and say that that is not a legitimate legislative purpose to find out whether the crime, i.e. the violation of existing law has been committed.

William J. Brennan, Jr.:

That’s an attack on the resolution?

Frederick Bernays Wiener:

That is an attack on the resolution.

Yes, Your Honor.

But it —

William J. Brennan, Jr.:

May I ask Mr. Wiener, has this — the state indictment ever been tried?

Frederick Bernays Wiener:

Yes, it has been tried.

It is now on appeal.

William J. Brennan, Jr.:

And I — your point is that — perhaps I’m confused.

Frederick Bernays Wiener:

Well, my —

William J. Brennan, Jr.:

That — that — while, the Committee you say, was actually trying an offense.

This is not an offense for which this petitioner was ever indicted, yet —

Frederick Bernays Wiener:

That is correct.

William J. Brennan, Jr.:

— that the facts might have been adduced at the trial on the indictment was actually was returned?

Frederick Bernays Wiener:

Exactly and to that extent, they were pre-trying the pending criminal case because there’s a common ground between the parties that affirmative answers, any of these questions as to the alleged Lake County activities would have gone in at the Marion County trial, and therefore, to that extent, if there was a pretrial of a pending criminal case, and when the prosecution says, page 40 of United States’ brief, “It distorts the record to say that the Committee attempted to pre-try a criminal case,” I submit that if there’s any distortion, it is not on the part of petitioner or his counsel.

Earl Warren:

Colonel, may I ask you this question.

Earl Warren:

When, with relation to the trial under the indictment was this finding made by the Committee, the one you have just read?

Was it —

Frederick Bernays Wiener:

The finding —

Earl Warren:

— before or after the trial under the indictment?

Frederick Bernays Wiener:

I’m pretty sure it was before, Your Honor, let me just check.

I have it here.

The Committee’s Second Interim Report ordered to be printed October 23, 1959, and my information is the petitioner wasn’t tried on that indictment until sometime in 1960.

So that it preceded — it preceded the trial.

Now, I think it’s fair to say that the public prejudice arising out of the pretrial of criminal cases is certainly one of the most serious problems in the administration of criminal justice today.

It appears mostly of course as trial by newspaper.

Only at the last term, two cases, on consecutive pages of this Court’s reports were reversed because of trial by newspaper.

One was the Janko case, a direct appeal, the other one was Irvin v. Dowd, collateral attack.

And some years back, there was the Delaney case in the First Circuit which turned on a necessity for a continuance where there had been a legislative pretrial of an impending indictment, but there, the perspective defendant, Delaney, was never called by the Committee.

Well, I hardly need say that such a legislative pretrial is a criminal trial without any safeguards.

The Committee makes the rules.

There isn’t any cross-examination.

The defendant can’t bring witnesses in support.

It’s a legislative trial with all its evils culminating in this finding in the Committee report in something that’s certainly in substance, I’m not going to argue for a legal point, but certainly in the substance pretty close to a bill of attainder.

Now you’ve got the same problem, if the Court please, in Beck against Washington Number 40 which will be reached a little later in this same argument session and which as a matter of interest involves the same legislative committee.

Well, the prosecution’s position on the pendency of this indictment was, that is true, the brief on opposition here, that the pendency of an indictment is no bar to a legislative inquiry as to the same subject matter citing the Sinclair case in the 279 United States.

Well, we said now wait a minute.

There wasn’t any pending indictment in Sinclair.

There was a pending civil action.

Oh says the prosecution, “Yes, but it was a pending civil action with unmistakable criminal overtones because a special grand jury have been empanelled.”

Well now, if the Court please, what is a civil action with unmistakable criminal overtones?

Is it a proceeding where if judgment goes for the plaintiff, the defendant must not only pay damages but go to jail?

There isn’t any such act and the difference, if the Court please, is not one of labels, it’s one of substance and it’s this.

A criminal defendant cannot be compelled to testify.

A cri — a civil defendant can be compelled to testify.

So we say it is a violation of due process to pre-try a pending criminal case, and we have here, if the Court please, not newspapers intent on the crime.

Frederick Bernays Wiener:

Not newspapers pandering to community prejudice.

We have here lawlessness on the part of the lawmakers.

A pre —

John M. Harlan II:

(Inaudible)

Frederick Bernays Wiener:

He did claim a Fifth Amendment privilege.

John M. Harlan II:

(Inaudible)

Frederick Bernays Wiener:

He did.

He said it would be in denial of due process of law.

That is also part of the Fifth Amendment.

John M. Harlan II:

I am asking you (Inaudible) —

Frederick Bernays Wiener:

No, Your Honor.

He explicitly disclaimed reliance on the Self-Incrimination Clause of the Fifth Amendment.

John M. Harlan II:

(Inaudible) — the committee had to recognize?

Frederick Bernays Wiener:

Well, the Committee recognized it as to the other witnesses.

Now, I think it’s speculated, it’s — if in the extreme, to suppose that they would have recognized it because — on — if he had invoked it, and I say that — and I say that, because as the Chief Justice pointed out this petitioner’s ground for refusal was not very different from Blaier’s and they let Blaier go free and they — and they cite — directed this petitioner to answer and cited him for contempt.

So that — while the prosecution says, “Yes, they would have let them go free if he had invoked the privilege against self-incrimination,” I say that’s speculative.

Its weak speculation and it would have involved the three disadvantages that I’ve outlined.

John M. Harlan II:

(Inaudible)

Frederick Bernays Wiener:

That is the point I am coming to in a — in great detail on — on my next point and I’m practically there.

On this point, the matter of pretrial, we — we think that this business of the Committee of Congress pre-trying a criminal case should be discountenanced once and for all.

There’s only one other instance that I know of that’s in the reports.

We hadn’t cited in it our brief, its Judge Keech’s granting of the motion for acquittal in the Icardi case in 140 F.Supp. 383.

That was the pretrial of Icardi, the alleged murderer of Major Holohan, the OSS man in Italy, that’s only a District Court opinion we haven’t cited.

Charles E. Whittaker:

Colonel Wiener, what difference would there be in pre-trying the issue in advance of an indictment over trying the issue before a legislative committee after an indictment?

Frederick Bernays Wiener:

I think both are equally bad.

I think both are equally bad because the place — there’s one — only one place, if Your Honor please, where a criminal case should be tried and that’s in the courtroom.

Charles E. Whittaker:

So then, this argument would mean that a legislative committee could not inquire a bad conduct or investigate it, if it was likely later to result in an indictment.

Frederick Bernays Wiener:

No, I don’t say that.

I — I say that basically here, there was a pending indictment.

I don’t say for a minute that a Committee has to bring its inquiries to a grinding halt whenever there’s something that has the smell of a — of an indictable offense.

Frederick Bernays Wiener:

But when as here, they go out deliberately to investigate a — an offense which they know is an offense, which they know in advance is an offense, there, I say, that is the improper pretrial procedure.

And — and as for the contention that — well, this would leave it open for any State District Attorney to hamper a congressional investigation simply by indicting people.

I call Your Honors’ attention to Adams against Maryland for 90 years — for 90 years, Congress provided that an answer given by a witness before it or one of its committees would not be admissible in any court, Adams against Maryland, 347.

Once they restored that provision, there is no danger.

Now, I come to the point —

Potter Stewart:

But wouldn’t your argument Colonel Wiener lead to a — the conclusion that the — that this resolution creating this Committee was — was improper that —

Frederick Bernays Wiener:

That — that is one of my arguments which is my third point.

Now, I’m on — on the second.

Potter Stewart:

Alright.

Frederick Bernays Wiener:

And that is that it is a violation of due process to force a witness before a congressional committee to subject himself to penalties.

Now here in this case, simply by calling this petitioner as a witness, he was placed in a quadruple dilemma with penalties absolutely unavoidable.

If he answered the questions affirmatively, they could’ve been used against him at his pending trial.

If he answered them negatively and those negative answers were false, he would have been subject to a prosecution for perjury.

If he claimed his privilege against self-incrimination, he was subject to the three disadvantages that I’ve outlined, and since he refused to answer on the grounds of due process of law, he faces the six months term in jail.

I ask, is it consistent with due process of law to place a person in such a dilemma simply by calling him as a witness.

Now of course, if the Court please, I’m perfectly aware that under the rule of United States against Murdock in the 284 United States, a witness before a federal tribunal cannot claim — the state cannot claim danger of state self-incrimination.

The Committee here, however, recognized the unfairness of that rule and they said that they wouldn’t inquire as to the subject matter of the pending indictment.

At page 78 of the record, this is — the Chairman said, first whole paragraph, “If he feels that it might jeopardize his defense, we recognized that where he is under indictment, he should not be compelled to be a witness against himself on the subject matter involved in the indictment, that rule or policy be observed.”

Well, with that, a good deal of the Murdock rule went out the window.

The difficulty before the Committee was that the Committee wouldn’t recognize or couldn’t recognize, it was unable to recognize the connection between these Lake County questions and the Marion County indictment.

Here, the prosecution recognizes that connection and says he would have been alright if he had invoked the privilege against self-incrimination in respect to the Lake County questions and with that statement, if the Court please, a good deal more of the Murdock rule goes out the window.

Now, moreover, since the Committee here sought to insist – or to sought to assist, to encourage and indeed to exhort state law enforcement officials to pursue the subject matter of the questions namely this alleged improper procedure in Lake County.

We have a palpable instance of the improper use of federal processes to compel disclosure for state purposes, but if that isn’t enough then we urge that this situation be treated just as the great Chief Justice treated a precisely similar situation in the Saline Bank case in the first appeal and Chief Justice Marshall there said the rule clearly is that a party is not bound to make any discovery which would expose him to penalties.

John M. Harlan II:

Do you think that would (Inaudible)?

Frederick Bernays Wiener:

I would say it was instinct with constitutional by someone who grew up with the constitution.

John M. Harlan II:

Overtones.

Overtone —

Frederick Bernays Wiener:

Overtones, undertones, I say precisely similar because in the Saline Bank case, the United States sought a money judgment, it was a suit in equity because of fraud.

It was not federal law, but state law that made criminal what the defendants there had done.

The situation was one where the danger of the state penalty was actual and not conjectural, and that Saline Bank case was followed as late — as the 200 United States, Ballmann against Fagin.

Frederick Bernays Wiener:

And then in the very next volume, in the — in Hale against Henkel, it is improperly distinguished and palpably misstated.

This is what the Court said in Hale against Henkel — the Saline Bank case.

It is sufficient to say that the prosecution was under a state law which imposed the penalty, and that the federal court was simply administering the state law and no question arose as to a prosecution in another jurisdiction.

Now when I say palpably misstated, I’m not relying on dialect.

We’ve gone to the archives.

We have copied the complaint and the interrogatories in the Saline Bank case from the manuscripts and printed them here in our brief, and it’s perfectly plain that Saline Bank never for one minute held what Hale v. Henkel said it did.

There wasn’t any prosecution.

The federal court wasn’t administering state law.

It was simply suing on the money claim of the United States and the only possible prosecution would have been by the State in a named state court.

So we say, let us return to the pristine federalism of Chief Justice Marshall.

Now, Murdock also rests, in our view, on some other demonstrable misreadings of authorities.

I think we’ve covered them in the brief and certainly Justice Cardozo’s admonition was that individual cases shouldn’t be dissected in open court because it’s a — have to be a gruesome and a wearisome spectacle and I will add — heed that admonition and reserve the balance of Murdock — of the inequities, the misreadings in Murdock to the brief, unless if the Court, of course, any members of the Court have questions because I do not shrink from questions as to that.

At any rate, it is significant that here, the prosecution does not challenge our reading of the Saline Bank case.

They don’t discuss Saline Bank in that text.

They don’t discuss Saline Bank in any of their numerous footnotes.

They don’t so much as cite the case.

Rather they say that petitioner lacks standing to attack the Murdock rule because he specifically disclaimed any privilege against self-incrimination.

To which we say, “Well, he never disclaimed due process of law”, and therefore I can discuss due process of law, if not indeed till the cows come home, not certainly until both lights are on.

William O. Douglas:

Ballmann against Fagin was a claim of “privilege against self-incrimination,” isn’t it?

Frederick Bernays Wiener:

Yes.

Now, this Court, of course, has frequently said that the Due Process Clause of the Fourteenth Amendment does not include the privilege against self-incrimination.

I don’t suggest for a minute that the Due Process Clause of the Fifth Amendment be read differently.

But, I think it’s fair to say that most of those comments have been talked rather than holding.

I don’t at the moment recall a case where that was said where there was a state indictment actually pending but this — I should be wrong as to that, it is perfectly plain, I think, that no case on the relationship between due process of law and the privilege against self-incrimination has ever considered the actual true holding of the Saline Bank case.

And I don’t suppose in view of Mapp against Ohio that it’s necessary to argue that the Due Process Clause does not have yet have a completely fixed —

John M. Harlan II:

What makes you (Inaudible) —

Frederick Bernays Wiener:

The content.

John M. Harlan II:

What do you rely on in the Saline Bank case (Inaudible) —

Frederick Bernays Wiener:

Well, I think it expresses a general rule offense and it’s — to me very interesting in dealing with all these contempt of Congress cases that the basic unfairness of the Murdock rule that one sovereignty can force a person into the jail of a coordinate sovereignty is so unfair that most of the lower courts’ reading sometimes between the lines and sometimes the line themselves would like to get away from it and I think that is an expression.

I mean, here was a — here was a federal action by the United States in a federal court and — and if a rule of equity, if it’s a rule of equity rather than anything else, it — it represents a basic concept of fairness which after all is what due process is.

Frederick Bernays Wiener:

And — and certainly — certainly John Marshall who seven volumes, six volumes later was to write Barron against Baltimore, certainly, he was under no misapprehensions or misconceptions as to the line between state and federal power.

Felix Frankfurter:

Refresh — refresh my recollection.

In the Delaney case, Judge Magruder referred the due process at all?

Frederick Bernays Wiener:

Well, the Delaney case was a federal prosecution and a federal legislative committee.

And Delaney’s case had been pretty thoroughly pre-tried before the Committee without however calling him as a witness.

When the case came on for trial, his counsel —

Felix Frankfurter:

(Inaudible) —

Frederick Bernays Wiener:

— asked for continuance.

Felix Frankfurter:

— and no occasions of (Inaudible) if you just tell me whether in setting aside the conviction was on the ground of due process rather than the internal power that a federal court had —

Frederick Bernays Wiener:

I — I am not prepared to say that it was — it was definitely on due process ground.

But, coming back here, I think that the distinction that the prosecution makes that it would have been perfectly alright if he had invoked self-incrimination, but that he goes to jail since he invoked due process, seems to me to tribulize a basic concept of fairness into a form of words.

Now I — I could understand the prosecution saying, “Look, Mr. Hutcheson, you cannot claim state self-incrimination at all.”

That I could understand, that at least would be logical.

Then we’d be face-to-face with the unsoundness of the Murdock case because it rested on many misconceptions.

But to say that you would have been alright if you pleaded self-incrimination but since you put it on the grounds of denial of due process of law take him away, that I cannot see because the — the basic unfairness here is in calling the man as a witness and then forcing him to invoke the privilege against self-incrimination to his own determent.

Felix Frankfurter:

But as you rightly indicated a little while ago to Justice Harlan’s question that the Fifth Amendment has several prohibitions and several restrictions on governmental power, and when those framers put that in presumably, they didn’t mean to be repetitive in having said self-incrimination, then go on and say, “Due process and due process equals self-incrimination.”

Frederick Bernays Wiener:

Well, they were repetitive when they put in the guarantee of jury trial placed.

They had in the original —

Felix Frankfurter:

Wouldn’t that be (Inaudible) — a different story —

Frederick Bernays Wiener:

Well, I —

Felix Frankfurter:

But anyhow, within — with the Fifth Amendment.

Frederick Bernays Wiener:

Yes.

Felix Frankfurter:

And in the Fifth Amendment, there are separate semi-colons (Inaudible) —

Frederick Bernays Wiener:

Well, that — I understand that.

Felix Frankfurter:

And what you’re saying is because due process has an element of fairness and self-incrimination has an element of fairness, therefore, they’re two equally charged.

Frederick Bernays Wiener:

Well —

Felix Frankfurter:

And that’s lead them — legal arithmetic nor arithmetic.

Frederick Bernays Wiener:

Well, I think the basic unfairness here is —

Felix Frankfurter:

I’m not — I’m not — I’m not saying it may be unfair but —

Frederick Bernays Wiener:

No.

Frederick Bernays Wiener:

May I — may I —

Felix Frankfurter:

— and I’m suggesting that everything that’s unfair isn’t necessarily violative of Due Process —

Frederick Bernays Wiener:

The unfairness here is by making him — by making him invoke the privilege against self-incrimination to his own detriment, because what the Committee —

Felix Frankfurter:

Well, but what if a man doesn’t choose to, he may go to jail or if he’d asserted that he wouldn’t be going to jail.

Frederick Bernays Wiener:

Well, the answer here — they — what the Committee did here was to say to the witness, “Look, you either answer or you plead your privilege against self-incrimination which means to us that you’re guilty, and which will hurt you.”

In other words to — to lapse into the inaccurate jargon they — they said answer or take the Fifth and because he took a different Clause of the Fifth, he’s got six months to serve, making little ones out of bigger ones.

Felix Frankfurter:

It all depends on whether the due clause there’s difference?

Frederick Bernays Wiener:

Well, I think due process includes — properly includes self-incrimination, particularly where self-incrimination itself would involve efficiency.

Felix Frankfurter:

But you have to come to that point?

Frederick Bernays Wiener:

Yes, definitely.

No question about —

Felix Frankfurter:

Yes, come to that point.

Frederick Bernays Wiener:

No question about that.

Felix Frankfurter:

Not merely — not merely circle around unfairness.

Frederick Bernays Wiener:

No, I —

Felix Frankfurter:

“Life is full of unfairness for which the Constitution affords no protection.”

Frederick Bernays Wiener:

The unfairness here is to invoke self-incrimination with itself be appended and that brings me to the question of whether these — this inquiry dealt with any proper legislative purpose and there we say no on two grounds.

In the first place, we have here as we’ve had in so many other cases, the matter of the Chairman saying the purpose is exposure.

I’m aware of the cases that say we disregard that if the resolution is clear and clean.

What was the resolution here?

Page 176; “To investigate the extent to which criminal or other improper practices or activities are or have been engaged, the extent to which criminal or other improper practices or activities are or have been engaged.”

Now, if they investigate improper activities, of course, they can legislate and make them criminal, but to investigate criminal practices that is a violation of existing law and that’s what the Chairman said.

Our legislative purpose is to search out and find if crime has been committed.

Well now, what legislative purpose is served by any such inquiries?

Suppose the Committee finds the crime has been committed, what legislation will they pass in consequence of that finding?

Potter Stewart:

Well, it’s certainly possible that they might find that activities which are criminal on the state law had been engaged in and that the object of a possible outcome of their investigation might be the —

Frederick Bernays Wiener:

Well, if criminal —

Potter Stewart:

— legisla — sponsorship of a federal legislation.

Frederick Bernays Wiener:

If criminal in that authorizing resolution means state criminal —

Potter Stewart:

Yes.

Frederick Bernays Wiener:

— then of course the witness is free to plead state self-incrimination or denial of state due process.

And I am assuming that when a — when a Committee of Congress sets out to investigate criminal activities, it means — it means federal criminal activities.

If its goes beyond that, if the Committee of Congress investigates state criminal activities, then my case is much easier because then they can’t aid the prosecution consistent with due process, so it must mean federal criminal, and — and we —

Potter Stewart:

I don’t quite follow that.

Frederick Bernays Wiener:

Well —

Potter Stewart:

Why you must make that assumption?

In this very case of course —

Frederick Bernays Wiener:

Here, they —

Potter Stewart:

— the activity was criminal under state —

Frederick Bernays Wiener:

— the question here —

Potter Stewart:

— not — state, not federal law.

Frederick Bernays Wiener:

The question here is the state federal relationship as to —

Potter Stewart:

Yes.

Frederick Bernays Wiener:

— protecting the witnesses.

Well, if you say Your Honor that criminally activities means state criminal activities —

Potter Stewart:

In the authorizing resolution?

Frederick Bernays Wiener:

Yes, then the witness can say, “Well look, if you’re going to investigate state criminal activities, why — I don’t have to answer questions that are going to hurt me in state criminal prosecutions.”

So, all the rest of Murdock goes out the window once you assume that criminal includes state criminal.

Now, I assumed that it means federal criminal, and I submit that is it is no part — it is not a legitimate legislative function to find out whether crime, that is to say the violation of existing law has been committed.

That is the function of the FBI, of grand juries, of law enforcement officers, and of U.S. Attorney, but there’s a second aspect of illegitimacy here.

The impropriety of the entire line of inquiry is shown by the circumstances that the Committee had the facts at the beginning.

They were set forth in the background statement.

And they found the facts at the end as set forth in the com — Chairman’s statement and is set forth in the Committee’s report.

So that they didn’t need this petitioner’s answers for any fact finding purposes.

Now the prosecution said the petitioner would go free if he claimed the privilege against self-incrimination.

That’s simply emphasizes and underscores that petitioner’s answers were neither necessary nor wanted.

It’s true, it would subject him to the disadvantages, but it wouldn’t give the Committee any answers.

So that what the prosecution’s argument does is to prove to a mathematical certainty that the Committee wasn’t really seeking information.

That its only purpose was to pre-try a pending and a potential criminal case and to make this witness, who was already under state indictment claim the privilege against self-incrimination to his own demonstrable det — detriment.

I submit that at this time to halt this public badgering of witnesses where no legislative purpose is served, where no genuine fact finding is in progress.

Frederick Bernays Wiener:

Now what they wanted from him, they have the facts, they have the facts without his answers.

They have the facts without any of these witnesses’ answers and they found them as facts in their report.

They wanted him either to admit guilt in terms through his own mouth or to plead the privilege against self-incrimination which on their own strongly held, conscientiously held view was tantamount to an admission of guilt.

In other words, the only purpose was to get them up there and discredit him by either making him admit wrongdoing or else claim the privilege against self-incrimination.

We say it’s about time that the Courts put a stop to this saturnalia of exposure for exposures sake.

This legislative pretrial of criminal cases, this bringing down of penalties and disadvantages on witnesses’ heads, penalties and disadvantages that follow automatically, inescapably, inevitably simply from calling them as witnesses, and this forcing of a witness to invoke the privilege against self-incrimination when in the minds of the Committee, in the minds possibly of his employers, in the minds of a great segment of the public, would involve a stigma, when they don’t need his answers, when they only want him to — ask him the questions so he will plead the privilege against self-incrimination.

I submit that this kind of treatment of witnesses, not to get information out of them, but to make them invoke a stigma.

And it is a stigma whether rightly or wrongly, this sort of business does not further any legitimate legislative purpose.

I submit it offends against public decency, and therefore defense against the Due Process Clause, and therefore the questions work as petitioner rightly said in denial of due process of law.

Earl Warren:

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

Our view of this case with respect both to the facts and the questions presented is quite different from that of petitioners.

Indeed, I think it is fair to say that the eventual outcome probably depends more than anything else on whether our appraisal is what occurred or the petitioner’s appraisal of what occurred is the more accurate.

As we see it, what occurred can be fairly summarized in four points; first, the McClellan Committee did not inquire into the real estate transactions and alleged bribery which formed the basis of the Marion County indictment.

Indeed, it asked no questions which barred directly upon any issue raised by the indictment or the defense.

Second, the McClellan Committee did press an investigation into and did require the petitioner to answer questions concerning the alleged use of labor union funds for the purpose of obstructing justice in Lake County, Indiana after the highway transaction had been closed.

If these expenditures were made, these expenditures of union funds, then of course they violated petitioner’s fiduciary duties to the union members.

Both the investigation and the questions put to petitioner were undeniably pertinent therefore to the authorized legislative purposes of the McClellan Committee.

And their purpose — their pertinence was clearly explained to the petitioner.

Third, the authorized investigation for legislative purposes might have shown that petitioner was engaged in what I have called a — an effort to fix the investigation in the Lake County, an investigation into the highway transaction, and therefore those questions might incidentally have produced evidence which could be used — which would show that petitioner had a consciousness of guilt with respect to the underlying Marion County transaction, and which therefore we agree (Inaudible) if answers had been given, have been used against him in the trial of the Marion County indictment.

Fourth, when the pertinent questions with this collateral impact where asked petitioner unequivocally, repeatedly, explicitly and with the advice of counsel, disavowed any reliance on the privilege against self-incrimination.

There’s no resemblance, I think between the situation with respect to Mr. Blaier and the situation with respect to petitioner.

Blaier said that the he refused to answer on the ground that the questions relates to or might be claimed to relate to or aid the prosecution in the case in which I am under indictment and stopped there.

Petitioner, both before and after saying that, said I do not rely on the privilege against self-incrimination.

Blaier never said this.

Blaier indeed was understood by the press and I take it by the Committee as the record shows to have been invoking the privilege against self-incrimination.

So of course, the circumstances in this respect are quite different.

Those, as I see it, are the essential path in the collateral relation between the authorized investigation into the Lake County alleged obstruction of justice, and the underlying highway scandal.

Does —

Earl Warren:

Mr. Solicitor General, may I ask whether this petitioner in any portion of the statement before the Committee did say to the Committee that his reason was the same as that given by Mr. Blaier?

Archibald Cox:

I — his counsel at the time petitioner was questioned, which followed the questioning of Blaier, did say that he wanted to correct the misapprehension which the press had gained, he didn’t say the Committee had gained, but which the press had gained, and that Blaier was not invoking the privilege against self-incrimination.

By that time, of course, Blaier had been excused.

He’s off the stand.

When I say excused, I — to be honest I don’t recall whether he’d been released from under subpoena or not, but he was off the stand.

The questioning of him was over.

Now I suppose that it could’ve been inferred from then, that the petitioner was seeking to make the same kind of claim that Blaier and his counsel subjectively thought that Blaier had been making.

But there is still is the fact that petitioner said something that Blaier never said to the Committee, whatever his subjective thoughts have been made.

Petitioner said, “I waived the privilege, not in those words, but I disavow it, I don’t rely on it” and Blaier never said any such thing.

So naturally what petitioner did say carried an entirely different meaning, I think, it certainly could have carried a different meaning to the members of the McClellan Committee in what Blaier said.

Earl Warren:

Well did he say in at — at any place, that the reason he didn’t want to testify was because it would compel him to give evidence that would help the prosecution in the indictment which —

Archibald Cox:

Yes.

Earl Warren:

Yes?

Archibald Cox:

Yes, he said that.

Earl Warren:

Well, if — if that is the gravamen of his objection, where in his — are there any real difference between his objection and Blaier’s?

Archibald Cox:

Well, I think — I think, it’s an entirely different — in a great difference in the way this left the Committee.

Let’s try an example out of context.

Suppose that I were asked questions about a conference with a client, and I said I refuse to answer because this involves something I said to my client, but not I’m not claiming Your Honor the lawyer type privilege.

Under those circumstances, I would think it was fair for the Court to say, “Well, you haven’t claimed the privilege.

You don’t stand on it.”

At best, from the petitioner’s standpoint, these things would seem to me to cancel out.

Furthermore, I suggest Mr. Chief Justice that this was not a matter of just one assertion, that there was any possibility of misunderstanding.

The Chairman of the Committee several times said to the petitioner, “Do I understand that you don’t rely on the privilege against self-incrimination” and Senator Ervin said the same thing, and each time he said, “No.”

Then the discussion with Senator Ervin went off to an effort to explicate, “Well, how could there be this other privilege under the Fifth Amendment, if you weren’t relying on the privilege against self-incrimination?”

And that was usually cut off and I think quite properly because the petitioner wasn’t a lawyer, and was obviously in no position to discuss it, and quite obviously, was just reading what his lawyer had given him to read.

Earl Warren:

And you think it’s a fair reading of Mr. Blaier’s objection to testifying that he claimed the Fifth Amendment privilege against self-incrimination?

Archibald Cox:

I haven’t had any doubts, Your Honor, that on that — on the record of the inquiries put to Mr. Blaier, that if the privilege had been disallowed and he had simply stood on his statement and refused to answer, and the case was brought here, that it would’ve held that he had properly invoked the privilege against the Fifth Amendment within the — I can’t think of the name of the case now, but they were the men in the —

Quinn.

Archibald Cox:

Quinn, and there’s another beginning with E – Emspak.

I see.

Archibald Cox:

And I think the Committee quite properly said that no particular ritual is required.

Archibald Cox:

What the man is saying —

Earl Warren:

Both were taken by the same reasoning that if this petitioner said that he wouldn’t testify because if he did, it would help the prosecution that he ought to get the benefit of the same reasoning of Quinn and Emspak that he — he fairly raised before the Committee his reason for — for not testifying therefore, the Committee should have (Voice Overlap) —

Archibald Cox:

I think that if the petitioner had not explicitly and repeatedly disavowed relying on the privilege against self-incrimination, if you take that fact away, and simply take the language that the petitioner used then I think he would have been entitled of the privilege, but here he said over and over again, “I don’t rely on the privilege.”

I don’t see how under those circumstances, the Committee was under an obligation to say, “Oh, yes, you’ve invoked the privilege, we’ll give it to you,” and he said, “No, don’t give it to me.”

Earl Warren:

He didn’t say to Mr. Blaier, “You’ve invoked.

You have not invoked the —

Archibald Cox:

That’s in — that —

Earl Warren:

— the privilege against self-incrimination, and therefore we let you go,” did it?

Archibald Cox:

It didn’t say one way or the other.

Earl Warren:

No.

Archibald Cox:

We do know that petitioner’s — all we know about that beyond the bare record where — from which it would seem to me it was a fair inference that that was what he was claiming.

All we know is that the next day, Mr. Travis, his attorney, said the press seems to have gotten the impression that Mr. Blaier stood on the privilege against self-incrimination.

That was what he was doing.

Now, if the press got that impression, it seems to me likely that the Committee had the same impression, and when he used the words, he claimed that the answers might aid the prosecution in a case in which I am under indictment, I would think anyone would draw the conclusion that he was invoking the privilege against self-incrimination.

Felix Frankfurter:

Mr. Solicitor, I don’t know what Mr. Blaier did or didn’t do, but can I — have we got to the point where they were going to the newspapers to find out what the legal significance of a form of word to the only ones we’ve got in the record here?

Archibald Cox:

No, I was just —

Felix Frankfurter:

I know (Voice Overlap) — but are we going to go to newspapers to find out what they do or don’t understand and what consequences of disavow, what they did or didn’t understand?

Archibald Cox:

Well, as I said to the Chief Justice, I think the words are clear on their face.

Perhaps, I shouldn’t have invoked this little bit of incidental aid from the record.

Earl Warren:

Well, I’m not interested in what the press said either, but I am interested in — in what the reaction of the Committee was to that statement by counsel.

Did the Committee then say we make a differentiation between you and Mr. Blaier because we consider that Mr. Blaier raised the Fifth Amendment, but — that you did not therefore, we treat you differently.

Is there anything by fair implication which show that the Committee so treated it?

Archibald Cox:

No, sir.

No one suggested to the Committee at the time the questions were being put to Mr. Blaier, if my memory is correct, that the petitioner was invoking the same privilege on which — which had been allowed to Blaier, except that — I don’t want to state unfairly — there was this little reference earlier that at the time of the colloquy about the petitioner’s asking, if my memory is right, there was no reference to discrimination between the petitioner and Blaier, and I must say given this record, with deference, I can’t see how anyone could’ve thought the two were the same.

Tom C. Clark:

Blaier was indicted, wasn’t it?

Blaier was not (Inaudible)

Archibald Cox:

No, he was not because he was allowed the privilege.

The Committee, you see, Mr. Justice Clark, did not stand on the Murdock case and allowed the privilege even so theoretically after it followed the Murdock case it might have disallowed it.

Felix Frankfurter:

Well, is it —

Tom C. Clark:

Is involved in these cases?

Felix Frankfurter:

Have we actually before us so far as the record goes anymore than this that Blaier was asked questions, he made some statement, the words are in the record, and he was allowed to go, and along comes Hutcheson, he was asked some questions.

He explicitly disavowed the privilege against self-incrimination.

Don’t we have to dispose of that on what we have regarding the Hutcheson without entering the debatable territory as to what Blaier, why Blaier was or wasn’t excused?

Archibald Cox:

I think that — I think we do have to dispose of it in that way.

I suppose that the government — I’m not sure it’s material but I think in terms of fairness, that the government should point out that there was no discrimination between the two —

Felix Frankfurter:

(Inaudible)

Archibald Cox:

— that the facts of the record —

Felix Frankfurter:

(Inaudible) of fairness, but — but the fairness is within the covers of the record.

Archibald Cox:

And I was just going to say that in order to deal with that within the covers of the record, it is clear that the statements made by petitioner were very different from the statements made by Blaier.

So that there’s no discrimination between the two in the way the Committee treated them.

Because the essential difference in this case seems to us to turn on one’s appraisal of the record.

I wanted at the beginning of my argument to develop at little length exactly what happened in a broader context in the specific pleas made by Blaier and the petitioner.

In the background of these hearings, were two transactions which I think it tried to characterize as related but quite distinct.

One of them is what I would call the Indiana highway scandal.

According to widespread reports, petitioner and two other union officials had bought land in Indiana for $20,000 in an area where it was expected to the state highway would be laid down.

They bribed an official named Doggett in the Indiana Highway Department who dealt with the acquisition of rights of way, and then transferred the rights of way across this land to India — to the State of Indiana for a highway for the sum of $78,000 or about four times what they paid for the land.

When questioned about this transaction before another Senate Committee some time before, petitioner claimed the privilege against self-incrimination.

Prior to the hearings with which we are concerned, he and his associates had been indicted for this transaction, the highway scandal, in Marion County for a conspiracy to bribe, and actual bribery of Doggett.

It’s plain that the indictment had not been tried prior to the time when petitioner was questioned by the McClellan Committee.

The second and what I see is an entirely different transaction was what I will call the alleged obstruction of justice or colloquially an attempt to fix the investigation in Lake County.

In July 1957, a year roughly after the land transactions have been completed, and after the reports of the alleged bribery were out, the prosecutor in Grand County of Lake — a grand jury of Lake County began an investigation into the highway scandal.

This was before the indictment had been returned in the Marion County seat.

After a few days, the Lake County investigation was dropped and Holovachka, the prosecutor had announced that there would be no indictment.

Sometime later, information came to the attention of the McClellan Committee indicating that the investigation had been dropped at the request of the petitioner and his union associates.

As a result of the bribes that had been paid with labor union funds, and through a series of labor union transactions involving the Teamsters, and through the influence of union officials.

The information indicated that Holovachka, the Lake County prosecutor, had received Carpenters Union funds.

What Raddock, James Hoffa, Sawochka, the head of the big Teamsters Union in Lake County, Teamsters local in Lake County, were supposed to have been the intermediaries.

The Lake County investigation had been dropped shortly after some telephone calls had been made from a Chicago hotel to Hoffa and to Sawochka, the Teamster man, in Lake County.

The calls have been made by Raddock.

They were paid for with Carpenters Union funds.

Archibald Cox:

At the time Raddock made the calls, petitioner Blaier and another Teamsters official had been staying in the same hotel, and the hotel bills had been paid for with labor union funds.

In addition, it appeared that Raddock who is alleged to have been the leading man, the obstruction of justice, had received $310,000 from the Carpenter’s Union for preparing a biography of a former president of the union, the petitioner’s father, and the evidence before the McClellan Committee had showed that the work at most should have cost about one-third of this amount, so that was $200,000 roughly unaccounted for.

Now, it’s unquestionably true that the highway transaction in the alleged obstruction of justice were related in two ways.

The Lake County investigation which was believed to have been fixed by the use of union funds was an investigation into the highway transaction.

Evidence that the petitioner attempted to stop the Lake County investigation might have been admissible against him in the trial of the Marion County indictment on the theory that it indicated consciousness that the effort to fix indicated the consciousness of guilt, and of course under familiar rules such evidence is admissible at a criminal trail.

But I would emphasize that in every other respect, these were two distinct transactions, separate in both time and place.

The Marion County indictment could be and indeed it later was tried without any reference to the attempted obstruction of justice in Lake County, and the alleged obstruction of justice in Lake County could be investigated without hearing any evidence upon the bribery or the real estate transaction on account of which the Marion County indictment had been returned.

Taking up first now, the Lake County transactions, I submit that it was plainly a proper subject for investigation by the McClellan Committee.

The authorizing resolution appears at page 176 of the record, down to the bottom of the page.

It established the Select Committee which was authorized and directed to conduct a study and investigation of the extent to which criminal or other improper practices or activities are or have been engaged in the field of labor-management relations or in groups or organization of employees or employers to the detriment of the interest of the public, employers or employees, and to determine whether any changes are required in the laws of United States in order to protect such interests against the occurrence of such practices or activity.

Petitioner argues in several points in his brief and summarized the argument here, and since this resolution authorized the McClellan Committee to investigate criminal activities, it directed the Committee to investigate the activities for their own sake.

And therefore, attempted unconstitutionally to have it act as sort of a legislative grand jury, prosecutor, and judge, thus, assuming powers which are given to the executive and judiciary.

The error of that view, it seems to me, becomes perfectly plain when one reached the whole resolution in the light of the legislative background.

Let me speak very briefly about the background.

At the time of the hearings, although the federal law protected and encouraged unionization and collective bargaining, there was no federal law dealing with the internal affairs of labor organizations, none relating to the expenditure or management of union funds, non-declaring or enforcing the fiduciary duties of labor union officials.

After some prior disclosures, Congress came — became concerned about the question whether there should not be enacted federal legislation which would prevent the labor union leaders from abusing the power which they had obtained largely by virtue of federal legislation such as the National Labor Relations Act and the Taft-Hartley Amendments.

The extent to which there were criminal activities or other improper practices plainly would bear upon the need for such legislation, and in understanding of the way in which such practices were carried on would certainly be very helpful in framing a precise remedy in drafting the terms of the legislation, deciding which solutions to follow and which to reject.

Colonel Wiener says that there is no legislative practice because the resolution authorized the Committee to investigate criminal activities.

Now first may I say that if his interpretation of criminal activity as applied to — applies only to violations of federal law, then of course the Committee was not functioning under that part of the resolution in this case.

It was functioning under the part of the resolution that authorized it to investigate other improper activities.

It would draw its authority from there, but I think this assumption is quite wrong if this context, the word “criminal” applies to criminal or other improper activities is not so precise, and it seems to me quite plain that it applies to federal crimes and state crimes equally.

Hugo L. Black:

You mean this — they have authority to investigate every local crimes committed in the Unites States if somebody connected with the labor union had something to do with it?

Archibald Cox:

I think it would be limited to crimes committed by a labor unions whose activities could be said to affect interstate commerce so that they were exercising or might have been exercising a power which was the result of the federal legislation, giving unions properly so, a certain status under the National Labor Relations Act and Taft-Hartley Amendment.

Hugo L. Black:

Does they allege —

Archibald Cox:

Now, I think I spoke —

Hugo L. Black:

Did they alleged local drafts in Indiana having anything to do in interstate commerce directly?

Archibald Cox:

I — sir, I can’t imagine that it had anything to do directly.

But, if the — if the suspected facts are true to with that the president of the Carpenters Union used union funds to bribe the prosecutor, then he was using union funds collected from members covered by the National Labor Relations Act, and if union influence was used by Hutcheson or Sawochka, the Lake County Teamsters or by Hoffa, that they were using influence accumulated in large part as a result of their status as the head of unions are protected and given the legal status under federal legislation because the activities of the unions affected interstate commerce.

Hugo L. Black:

I asked you the question because I didn’t understand you were arguing or going far enough to say that a committee could set itself up as the investigator of purely local crimes all over the country so that it could bring about a better enforcement of the local criminal laws.

Archibald Cox:

Oh, no.

Archibald Cox:

No, I — I certainly didn’t mean to Mr. Justice Black.

What I meant to say was that the Committee could investigate these criminal activities for the purpose in which it was instructed to investigate, to determine the extent to which they were to the detriment of the interest of the public and then, and most necessarily, to determine whether any changes are required to the laws of the United States in order to protect such interest against the occurrence of such practices or activity.

It — the investigation, of course, must look forward and did look forward I think because I tried — for the reasons I tried to explain to the enactment of federal legislation, which would be broadly limited within the confines of the commerce clause.

Felix Frankfurter:

May I ask you this, Mr. Solicitor, am I right in recalling — I may well be wrong, that the original Wagner Act had no reference to any — didn’t deal with any aspect of criminal activities by labor unions?

Archibald Cox:

That’s correct.

It didn’t deal with any aspect of any improper activity of any kind.

Felix Frankfurter:

Any improper of any kind?

Archibald Cox:

Yes.

Felix Frankfurter:

Now, the 1960 Act has a number of such provisions, is that right?

Archibald Cox:

The — 1959.

Felix Frankfurter:

1959, I think —

Archibald Cox:

Yes.

Felix Frankfurter:

— has a number of such provisions?

Archibald Cox:

Yes.

Felix Frankfurter:

Would you just take a minute just to summarize what they are to refresh your mind and not mine.

Archibald Cox:

Well, they — they fall into three major — four major groups.

I’m afraid I may think of others while we’re talking but the first one secures certain rights of individual members within the union with respect to participation in elections, taking part in meetings and so on.

Felix Frankfurter:

The internal (Voice Overlap) —

Archibald Cox:

The Internal Affairs.

Felix Frankfurter:

— of unions.

Archibald Cox:

The second part deals with the management and accounting of union funds and of course if I may interrupt for just a second, that is the kind of legislation to which this sort of investigation was highly relevant because knowing how the funds have gotten out of the union and into improper hands was exceedingly important in drafting that legislation, (Inaudible) one detailed here the money, it was said, went through a series of inter union transaction.

I don’t — I don’t have any knowledge about the McClellan Committee, but I don’t think any other incident of that kind had come to light, and in drafting the sections dealing with the accounting for union funds, this sort of thing would be very important in knowing just what provisions that you should put in.

The third major area of the 1959 legislation deals with receiverships and union elections.

This would not be particularly important to that and the fourth deals — the fourth put certain restrictions upon union conduct in relation to organizing activities and labor disputes.

And of course, this sort of investigation, according to some person — people’s reasoning was very pertinent there, because one of the theories which was advocated before the Congress, I don’t personally agree with it, but one of the theories was that the unions are abusing this power through this kind of activity in Lake County as the way to prevent them from doing it is to destroy the source of the power, that is to say, take away some of the protection they have under the Wagner Act and under the Taft-Hartley Act.

As I say, that was not adapted to any considerably impairment by the Congress, but it certainly in terms of relevance, helped to make this material.

Felix Frankfurter:

Is there any specific provision in the 1959 Act comparable to the order from legislation in New York and Jersey?

Archibald Cox:

There are provisions in the 1959 Act.

I don’t recall the details of which prohibit those convicted of certain crimes from holding union office for a period, I think it’s five years unless the Secretary of Labor — this in Exculpatory Clause, I forget just how it reads.

It seems to me to pick up and thread again that this investigation was plainly relevant to the authorized subject of the Committee’s investigations and that the Committee’s resolution which instructed it to investigate criminal activities and other improper practices for the purpose of saying how they injured the public, and then to decide what changes in federal laws were needed was obviously a valid resolution.

Archibald Cox:

Now, I should point out that the relationship between the investigation of the Lake County transaction and the Committee’s legislation as set forth in the governing resolution was plainly established in the hearings before the petitioner and his associates were questioned.

The first evidence of that appears at page 23 of the record.

Going back to page 21, Mr. Kennedy, the counsel had referred to the Indiana highway scandal, then he referred to the evidence that the Committee had of the alleged obstruction of justice in Lake County and he mentioned some of the detail and then he said, “We are inquiring into the situation in connection with the presentation before the grand jury in Lake County, Indiana.”

The explicit mention of that seems to me to exclude as later events prove any inquiry into the highway scandal, any direct inquiry into the highway scandal, then he (Inaudible) inquiring into the intervention of certain union officials in that matter.

Then the Chairman anxious to make sure that there was a connection to the authorizing resolutions then, is there some information that either union funds were used in the course of those transaction or that the influence of union — of official positions of high union officials was used in connection with this illegal operation, and Mr. Kennedy replied, “We have information along both lines, Mr. Chairman.”

Hugo L. Black:

What page is that?

Archibald Cox:

This is page 23 of the record, Mr. Justice.

“We have information along both lines, Mr. Chairman.

Not only the influence, but also in connection with the expenditure of union funds,” and then skipping a few lines which they discuss then, down at the bottom of the page, Chairman McClellan said, that is the interest of this Committee in a transaction of this kind or alleged transaction of this kind, to ascertain again whether the funds or dues money of union members is being misappropriated, if properly spent, or whether officials of unions are using their position to intimidate, coerce, or in any way illegally promote transactions in which the public interest is involved.

As I suggested before, the extent to each union funds were being diverted from their proper purposes was clearly a proper subject of federal concern and the way in which it was done would plainly be of interest to the Committee and to other members of the Congress in determining what kind of a remedy to frame.

Hugo L. Black:

Do you think it’s a sufficient answer simply to show as a matter of federal concern?

What branch of the Federal Government?

Archibald Cox:

Well, I think the third —

Hugo L. Black:

That makes a — does that make a difference under our cases?

Archibald Cox:

Making —

Hugo L. Black:

What — what branch of the (Voice overlap) —

Archibald Cox:

Well, this was a matter of concern to the legislative branch.

Hugo L. Black:

I think it’s held in one case, if they can go to the extent where it’s shown to be a matter for the judicial branch.

Archibald Cox:

Well, we don’t need — I’m — I don’t — confess, I don’t recall the case Mr. Justice, but we don’t need to simply argue that it was matter of federal concern, because here, it was a matter of legislative concern under the authorizing resolution and was demonstrably a matter which would be of the greatest help in drawing legislation that was enacted.

This was not a matter of self-hypothetical-interest on the part of the Senate.

Indeed, at the time these hearings were going forward, a bill was being — was in the Committee stage or had been reported on the floor but then it was the next session that the legislation was adopted.

So this was a very real practical legislative concern to the Senate Committee.

I was afraid I didn’t quite understand your question, maybe I haven’t answered it.

Hugo L. Black:

No.

What I meant was that it’s not enough simply to say something to federal concern, there’s two branches of government — or three —

Archibald Cox:

Three.

Hugo L. Black:

— that has something to do with that.

And whenever it reaches a point, I think it was held in one case it appears to me, an effort to the trial or to do something to somebody for what they’ve done instead of really a genuine matter of legislative concern, then it’s not enough to say a federal concern, it has to be a matter of legislative concern, it has a right to do what it is there, do it, and go as far as it is they are going.

Archibald Cox:

Well, I’d — I suggest that I have shown that this was a matter of appropriate legislative concern as to what —

Hugo L. Black:

It’s of course a — it’s of course a matter of legislative concern in connection with the labor union, to regulate what they do in a way.

Hugo L. Black:

That does not mean I suppose, that in asking — having investigation to branch over into the department which shows that your purpose and that is — is to do something to somebody —

Archibald Cox:

Well, I don’t —

Hugo L. Black:

— what they’ve done which might be punishable locally —

I think —

— or federally?

Archibald Cox:

I think perhaps I understand now.

At this point, all I was seeking to show was that these inquiries of this subject were both pertinent to the authorized subject of the resolution.

Now, I agree that I have to go out further and deal with the question of whether there was any proper reason for which petitioner couldn’t answer, and I also had to deal either as a matter of law or as a matter of fact, and I should think to do both with the argument that the Committee really wasn’t doing here what is was pretending to do.

Felix Frankfurter:

You have to take this situation out of Kilbourn and Thompson, a fortiori Kilbourn and Thompson because that has to do all along with federal matters, bankruptcy, etcetera, you have to take this out of Kilbourn and Thompson insofar as Kilbourn and Thompson is still — for what Kilbourn and Thompson — what survived in Kilbourn and Thompson after the Daugherty case.

Archibald Cox:

Well, Kilbourn Well, of course, I think I have to say — show — I have — I have two things to say ultimately in answer to what understand to be the thrust of Mr. Justice Black’s question.

First, that is held in the Watkins and Braden that if the questions were pertinent to a subject of investigation authorized by the Senate Resolution, then the Committee — then the Court will not inquire into what may have been the actual motives of the McClellan Committee.

Hugo L. Black:

I didn’t understand that either of those cases or the Daugherty case supported to overrule Kilbourn and Thompson, in that aspect?

Felix Frankfurter:

As suggested so far as the McGrain against Daugherty, the has left Kilbourn against Thompson with vitality namely, it was there interpreted to mean that Kilbourn and Thompson had no foreshadow of the legislative purpose, but was merely directed towards regulating something that could be dealt with exclusively in a court.

Hugo L. Black:

In that connection, I — you referred us parts of the record.

I don’t understand why some of them are there.

They show where a witness has claimed the privilege of self-incrimination and the interrogator without accepting that at all, continued to ask repeatedly detailed questions.

Do you deny — do you testify about this and this without recognizing in effect — substantial effect is claim on self-incrimination.

Archibald Cox:

There was no — there was no specific compulsion to — by the Committee or the counsel for the Committee to answer those questions.

He at least accepted the claim to the extent that he went on to ask another question.

Hugo L. Black:

Asked many more questions after the privilege of self-incrimination has been asked.

Now, I’ve been unable to find yet the purpose of those repeated question if it was not a denial, the man’s benefit of the privilege of self-incrimination.

Archibald Cox:

Well, I think that the — the asking of additional questions is something which must reside in the judgment of the Committee and —

Hugo L. Black:

Does it?

Archibald Cox:

I would suggest that up to a point, it certainly must rely in the judgment of the Committee to determine how far the witnesses’ refusal goes.

These questions are detailed.

They’re somewhat different.

It can’t be assumed, I think, in the refusal to answer one particular question that this is a refusal to answer others.

Now at some point — at some point, a question might arise of whether asking additional question was oppressive and served no useful purpose.

And I would think if a man were indicted and sentenced in the 25 counts of — for failing to answer 25 questions in the same investigation – (Inaudible) case on that which I have forgotten, I think, then this Court might well deal with it and say there has been only one offense.

But here, the petitioner — there was a general verdict and there was a single sentence of six months imposed on all counts.

Archibald Cox:

This was below the minimum — below the maximum that might have been imposed on anyone and it would seem to me therefore that that question is not before us.

Earl Warren:

But do you think they in asking these questions that they did ask of him, that they arrived at that point that you just spoke of?

Archibald Cox:

I don’t think that this record shows any oppression of the petitioner with respect to his claim of privilege.

No, sir, I don’t.

Hugo L. Black:

Well, the question I was asking you about was not with reference to the petitioner which seemed to be a part, back at the place where you referred use to where a witness after having claimed his privilege of self-incrimination was repeatedly asked, if he honestly believed that he gave that — that would incriminate, in other words are you willing — afraid to ask — answer, repeatedly, he was pounded with questions of that kind.

Archibald Cox:

Well, I wouldn’t think that the questions that were put too radically would be ground for reversing the conviction of petitioner, Hutcheson.

Second, as I read the record, Raddock had testified some in executive session, and it seems to be that the Chairman’s urging of him to answer these questions and saying, “Do you really want to standup?”

Hugo L. Black:

“Are you really guilty,” that’s in substance what the question was.

Archibald Cox:

Well, I’d — I’ve — I would like —

Hugo L. Black:

As I read —

Archibald Cox:

As I understand it Mr. Justice, many of the answers, I think the Chairman (Inaudible) in fairness — but many of the — many of the things said by the Chairman read to mean equally consistently with an effort to persuade the witness to give this information even in the Court.

Hugo L. Black:

Even though he claims self-incrimination?

Archibald Cox:

Well, you might change — one might change his mind.

Hugo L. Black:

In other words, is it your idea that — that the privilege of self-incrimination starts when a man claims it honestly, he can be held on the stand for hours for instance.

Archibald Cox:

No sir, but I don’t think —

Hugo L. Black:

(Voice overlap) ask you if he’s guilty?

Archibald Cox:

We therefore —

Hugo L. Black:

Or just try to persuade him?

Archibald Cox:

It would seem to that a — there was no — certainly nothing that would vitiate the whole proceeding in seeking to persuade him for a brief period.

There was no holding him here for hours.

Hugo L. Black:

It might reflect a light with, might it, on what the Committee was doing, what is the purpose of the investigation, whether it was pertinent, whether it was a real legislative inquiry or something like Kilbourn and Thompson.

Archibald Cox:

Well, I would think that it could be taken into account.

I would differ with Your Honor as to have serious as is here, and I would also suggest that if — if this case, where the subject matter and the actual question are so plainly material to the very thing that the Committee was authorized to do, to see what changes in the laws of United States were necessary, to prevent the continuation of this kind practice, which was injuring employees, employers, and the public, that it would take a far stronger showing than there is here to convict the Committee of any improper motive.

Now on — as to the question of whether the Committee had an improper motive or whether that is relevant, I would like to call the Court’s attention to two things.

First, it seems to me as I suggested earlier that it was clearly held in Watkins and later in Braden that where the inquiries are pertinent to the authorized purposes of the Committee and would aid Congress in preparing legislation in a field of the Committee’s concern, federal concern, that in that event, the Court would inquire no further.

In Watkins, the Chief Justice said, “The solution to our problem is not to be found in testing the motives of Committee members to this purpose, such is not our function.”

Their motives alone would not vitiate an investigation which had been instituted by House of Congress if that assembly’s legislative purpose is being served, and that the inves — that the facts sought to be obtained here would serve the Committee’s legislative purpose and that it was a legislative purpose, seem to me to be really beyond any doubt.

Furthermore, this case, although it really isn’t necessary to go further, I think fairness to the Committee requires me to point out that the record does not support the attack which petitioner makes on the petition — on the Committee’s motives.

Most of his argument is centered about a statement made by the Chairman of the Committee which appears at page 152 of the record, begins way down at the bottom.

At this stage, the Committee had just completed this phase of its investigation, says — say it apparently did not contemplate any further inquiry into the management of the Carpenters Union funds or into the alleged obstruction of justice in Lake County.

Archibald Cox:

The Chairman stated first certain conclusions which he drew from the evidence.

It seems that at the very least, Mr. Hutcheson is President of the United Brotherhood of Carpenters and Joiners was grossly careless with the use of union funds and completely failed to meet the responsibility as president.

This was certainly an authorized subject of investigation.

Then he goes on at some length to describe the evidence which had been introduced about this biography and about Raddock’s activities on behalf of the union.

And then he said coming down, it’s really quite a minor thing in the statement, testimony further indicates that certain high officials of both the Teamsters and Carpenters Union, two of the largest unions in the country, with the help and assistance of Mr. Raddock, were involved in a conspiracy to subvert justice in the State of Indiana.

He does state there what conclusions, he as a member of the Senate, came to after hearing the testimony.

But I find nothing improper or nothing that would at least — that would justify the Court in refusing to force — to punish a witness for contempt, if he was guilty of contempt, is the fact that a member of the Senate Committee publicly stated what conclusions he had drawn from the testimony.

Neither does it seemed to me that the fact that he stated what conclusions he had drawn is enough to convict him of some improper purpose in answering the question.

Hugo L. Black:

Would that be material if — if you assumed that exposure for exposure’s sake cannot be done by the Committee constitutionally?

Archibald Cox:

I think not.

Hugo L. Black:

You don’t think it’ll be relevant even then?

Archibald Cox:

I — I think that if one had the case where it were conceded that a Committee engaged in exposure for exposure’s sake, then what would not to left this because the concession would have been made.

The —

Hugo L. Black:

But suppose — suppose — is this relevant to reaching a conclusion on that point?

Are you arguing on the basis that exposure for exposure’s sake can be done by the Committee?

Archibald Cox:

No.

I disclaim any such argument —

Hugo L. Black:

(Voice Overlap) —

Archibald Cox:

— and that exposure for exposure’s sake can be done by the Committee.

I say two things.

In answer —

Hugo L. Black:

At least now, I want to make it clear.

I understood you —

Archibald Cox:

I say two things in answer to the charge that this was exposure for exposures sake.

I say first that it is clear here that these inquires were pertinent to an authorized subject of the Committee’s on the — so defined in the Committee’s resolution and that they were — this was in fact evident which would aid the Committee and the Congress in the formulation of legislation.

But I say that where that is established, that the Court held through the Chief Justice in Watkins, that the Court would not inquire further into the Committee’s motives (Voice Overlap) —

Hugo L. Black:

I don’t like to interrupt you, but I don’t quite — suppose that this is pertinent and the general statement is generally pertinent to find out if they’re misusing union funds, that wouldn’t mean, would it, that they could put on 500 witnesses to show that for the idea that it was still necessary for the legislative purpose.

Archibald Cox:

Well, then we — I want to repeat one thing if I may, and then I’ll try to deal directly with your observation.

But first, I understand Watkins, and I do stand on this proposition to say that if the inquiries are in fact pertinent, then this Court won’t start probing the minds of the Committee to find out what they thought they were doing but that’s the subject that is shut off.

Now, without waiving that point, I say second that here, I submit that on this record, even if the Court made the inquiry.

Archibald Cox:

There was no basis for concluding that this Committee was engaged in exposure for exposure’s sake.

Now Your Honor, puts to be the case dealing with the second question of facts as I understood it.

Suppose that the Committee called a —

Hugo L. Black:

Well, that was an exaggeration —

Archibald Cox:

Yes.

Hugo L. Black:

— to point out —

Archibald Cox:

Well, it’s pert — no.

Hugo L. Black:

So if you can see the point, I was —

Archibald Cox:

Well, what I was going to say if I may skip the intervening steps is that there’s nothing here in my judgment to the suggestion that the Committee already had all the information that it needed about this Lake County transaction.

There’s really no basis for that for several reasons.

In the first place, there was never any evidence brought out which revealed all the details of this Lake County transaction.

It — there was certain amount that was enough to convince the Committee there was something phony about it, but the way it was done, how it was accomplished, the facts of the inter-union transaction, which could be plainly helpful, very helpful in drawing legislation, never were detailed.

In the second place, surely, it is within limits of discretion, I concede for the sake of argument, surely up to the Committee to make up its mind when evidence becomes cumulative and it needs no more.

It’s not, I think, a proper exercise for the — of the judicial function for the Court to say, “What we’ve looked at this and we really don’t think you needed to find anything more in order to frame legislation.”

That certainly within broad limit is a function for the Congressional Committee.

And however narrow those limits are I submit that the Committee had not gone beyond here and that no one reading this record could suppose that the Committee had all the information that would be helpful bearing upon the way this Lake County investigation was fixed, if it was fixed, which I only assumed for the purposes of argument.

Similarly, it seems to be that there’s a very little to the argument, it did nothing to the argument, that Colonel Wiener makes based on Mr. McClellan’s testimony before the judge at the trial of this case.

The testimony is on page 153 of the record.

He was called to explain this statement that we — excuse me, I got the wrong reference, 165 of the record, he was called to explain the statement that was put out at the end of the — at the end of the hearing, the Senate hearing.

And he said, “This was at the conclusion of the hearings in this particular investigation.”

At the conclusion, I made this brief statement which is in the record.

“Our legislative function had been performed in seeking information regarding crimes and improper activities.

Now, there I think what he is saying is that they in relation to the Lake County investigation, in relation to drawing the facts about the Lake County investigation, they were done, but I think in stretching that to say that that impliedly excludes any purpose to use the information later, in drafting legislation where the Committee was specifically charged with the duty of drafting legislation.

What he’s saying in effect is our legislative function, in relation to this Lake Country transaction, in relation to investigating was over.

We’ve got no (Inaudible) about it.

So then, since there was some evidence that a state crime had been committed, it’s our practice to cooperate with the state officials.

So what I was saying was, my statement is to the effect that if the state officials desired to pursue any testimony that we had developed, we’d cooperate and make the record available.

Now I suggest —

John M. Harlan II:

(Inaudible) in the trial in Indiana?

Archibald Cox:

The Indiana case was tried in 1960.

John M. Harlan II:

(Inaudible)

Archibald Cox:

The appearance before the Congressional Committee was in 1959.

John M. Harlan II:

1959?

Archibald Cox:

Yes, it preceded the trial of the Indiana indictment.

I may say that although certain preliminary motions remained with respect to the Indiana indictment, that — that at the trial, there was no reference whatsoever to the Senate Committee hearing and now, I’ve spent a great deal of time on the facts of the case, I would like very briefly to try the state our position with respect to the question of law.

William J. Brennan, Jr.:

May I just ask Mr. Solicitor, I gather the trial in the District Court of this proceeding was April 5, 1960.

What is that — how does that relate to the date of the trial in (Voice Overlap) —

Archibald Cox:

I think that preceded the trial of the Marion County indictment which I think came in the summer or early fall of 1960.

I said earlier — let me put it this way.

I think a fair way to state the question of law that this case raises is this.

We have on the one hand, this highway scandal which was a separate transaction on the indictment concerning it, raised many issues of fact, all of which were carefully avoided by the committee.

We also have another transaction, the Lake County obstruction of justice or the alleged case.

Now, the Committee’s questions did — there was a relation between them, sort of a nexus, if you will, between these two quite different things.

And the Committee asked questions only about the Lake County transaction.

But it is true as I sought to say that the answers to those questions might have revealed a consciousness of guilt, and therefore, might have borne over on the trial of the Marion County Indictment.

And the question was —

Potter Stewart:

And it would have been admissible?

Archibald Cox:

What is that admissible enough?

Now, the question is — we’re given — whether given those facts, the committee could constitutionally put the questions to the witness which were pertinent to its investigation and tell him either to answer or claim the privilege of self — privilege against self-incrimination.

We say that the right to put the questions under these circumstances is perfectly plain.

They were pertinent questions and that the fact that the answers might possibly affect the trial in the state indictment does not forbid the Committee to put the question that the way for the witness to protect himself is to claim the privilege against self-incrimination.

We say, second, that in this case, for reasons I sought to state to the Chief Justice earlier, that we think the privilege plainly would have been allowed.

Perhaps it didn’t have to be, but it was allowed in the case of four other witnesses who were understood to claim the privilege against self-incrimination and that’s the slightest reason to think that if the petitioner had not disclaimed the privilege, it would have been allowed here.

In any event, since petitioner disavowed it, he could hardly be heard to say that it wouldn’t have been allowed if he had made the claim.

There could have been, we submit, no — or let me put it this way, that the dilemma that Colonel Wiener says the petitioner faced, where his answers would be used against him in the Indiana Case or his pleading the privilege would be used against him in the Indiana Case is unreal.

In the first place, the privilege he did claim would be allowed.

Surely it would be the basis for his many adverse inferences against him as a claim of the privilege against self-incrimination.

Second, we think is the Slochower case, although it can be distinguished on the fact, in effect prohibits drawing adverse consequences from a federal claim of the privilege against self-incrimination.

Twining and Adamson against California have nothing to do with it, because and the Indiana (Inaudible) case has a little to do with it, because those are all about the effect of a state claim of privilege in a state proceeding.

And finally we say, with respect to this point, that any basic unfairness, if there was any, despite what I have said, should have been raised in the Indiana case, but at this point, it’s entirely hypothetical.

Archibald Cox:

Petitioner might or might not have taken the stand.

The fact that he claimed the privilege might or might not have been invoked against the prosecutors or when the prosecutor attempted to invoke it, then and there was the time for him to claim the prejudice.

And if there was any basic unfairness, of course, he could have brought the case to this Court.

And if there was no basic unfairness, it certainly isn’t any greater — in this case, what is hypothetical and potential, that it would be in that case if it were accurate.

So, what the case boils down to is, I submit, that petitioner is asserting that although he disclaimed the privilege against self-incrimination the Fifth Amendment gives him a right to obtain the same protection under another name.

And we think that that falls of its own weight and indeed it’s inconsistent with the view that one must claim the privilege, that it’s not a right not to be asked a question.

And finally, that the introduction of such a doctrine, such reading this into the vaguer parts of the Fifth Amendment, when the fifth man is already adequately protected by the specific guarantee, would simply create confusion, and put a looseness into the Fifth Amendment which fortunately now is absent so far as the privilege against self-incrimination is concerned.

Earl Warren:

We’ll recess now.

Frederick Bernays Wiener:

— Several witnesses gave — who were called on this Lake County matter were not answering.

First we had Raddock.

On the advice of counsel, I refuse to answer the question on the ground that it may tend to make me a witness against myself and that went on for page after page after page, beginning at about page 34, he’s asked one question after another, the same answer, the same answer, namely, that.

Second witness, Sawochka, on the advice of a counsel, I respectfully decline to answer the question and exercise my privilege under the Fifth Amendment of the United States Constitution not to be a witness against myself.

Next witness —

(Inaudible)

Frederick Bernays Wiener:

That’s 48, 49, 50, 51, 52, I’m reading from my reply — petitioners’ reply brief at page 15 where that’s (Inaudible) —

Felix Frankfurter:

What’s the last phrase?

Not to be a witness against myself?

Frederick Bernays Wiener:

Not to be a witness against myself.

Then, the third witness, “On the advice of my counsel, sir, I decline to answer the question upon the ground that my answer might tend to incriminate me.”

Fourth witness invoked the attorney-client privilege.

Then comes Blaier; that it relates solely to a personal matter not pertinent to any activity which this committee is authorized to investigate and also because it might aid the prosecution in the case in which I am under indictment.

Now, if the Court please, I don’t see how anyone could possibly understand from that even if it were a stupid report that he had invoked the privilege against self-incrimination.

Tom C. Clark:

What page is that read?

Frederick Bernays Wiener:

That last is on pages 82, 83 to 84, 86.

Then, there comes in his counsel, Mr. Travis and Mr. Travis says on page 91 of the record, “It was not Mr. Blaier’s intention is — in his refusal as I draft it,” I suppose it’s, “I drafted it,” “To rely on the Fifth Amendment.

I feel there are other guarantees that a man under indictment has including the Due Process of Law Clause, that he must be tried only before the Court where the indictment is pending.”

Let me once more review the phrases used by Blaier and by this petitioner.

Blaier says because it might aid the prosecution in the case under which I am — in which I’m under indictment and this petitioner — it relates or might be claimed to relate to or aid the prosecution in the case in which I am under indictment unless be in denial of due process of law.

Now, where is the difference between those two?

Felix Frankfurter:

Now, suppose you’re right, suppose you’re right, suppose you’re right, counsel and court often let one witness go for one reason or another and ask another witness the same the question which they thought not to illicit from the —

Frederick Bernays Wiener:

Yes.

Felix Frankfurter:

— or reject it —

Frederick Bernays Wiener:

Yes.

But they didn’t —

Felix Frankfurter:

What’s the constitutional doctrine that Hutcheson must be treated the way Blaier was treated, is that a constitutional doctrine?

Frederick Bernays Wiener:

No, but it suggested — it was suggested by the prosecution in its brief at some length that if Hutcheson had invoked self-incrimination, they would have let them go as the others had gone, had been permitted to go.

I say, it underscores the speculative nature and I think it underscores the speculative nature of the argument and what I don’t want to go outside the record, I cannot shut my mind to the fact that Hutcheson was the general president, and Blaier was only the second general vice-president.

Now, it’s suggested by the prosecution that the way for Hutcheson to protect himself was to invoke the specific guarantee of the self-incrimination clause and not rely on the Due Process Clause, to which I think the answer is that if he relied on self — if he invoked self-incrimination, he would be disadvantaging himself in three respects and he would not be adequately protected and only the Due Process Clause, it seems to me, would protect him.

And then it suggested and here I do not understand the legal reasoning that this after all, if Your Honors please, don’t take this too seriously, this was a mild sentence, it’s true there were 18 counts that they build up against them, but they only got six months.

I suppose if they’ve got the maximum, he could have had one year on 18 counts consecutively which would be 18 years and an $18,000 fine and would the questions before Your Honors be any different?

Of course they were the same questions because the appellate court cannot revise sentences.

But the — to me the most significant portion of Mr. Cox’s argument was his introduction when at some length he denigrated my client by going into the details of the alleged conspiracy to subvert justice or to use a shorter word, the “fix.”

Well, that showed pretty clearly that they didn’t need this petitioner’s answers.

They didn’t need these answers.

They had the answers and then it seemed to me terribly significant that in reading from the Chairman’s testimony at the trial, Mr. Cox in his argument omitted what Mr. Cox in his written argument omitted this sentence, “Our legislative purpose is to search out and find if crime has been committed.”

Now, I don’t go into that as a notion of motive.

I distrust the attribution of motives because too often, when one person attributes motives to another, he’s attributing his own baser emotions to someone else.

I refer to that not as a statement of motive but as a particularly authoritative statement of purpose.

Our legislative purpose is to search out and find if crime has been committed and up above it said, “Our legislative function had been performed in seeking information regarding the crimes and improper activities.”

And then when the Chairman had concluded, the Committee came in with the detailed pinpointed report on page 592.

This was incorporated by a reference at the request of the prosecution and they pinpointed this alleged conspiracy to obstruct justice and I submit that any competent legislative draftsman would have had enough from those legislative findings to draft a proper act to stop that in the future.

They didn’t need — they didn’t need these petitioners’ answers.

Well, Mr. Cox said that this is a very delicate matter for a court to tell a Committee when it has sufficient evidence.

I recall the Court, the case of United States versus Smith in the 286 United States where the Court in the very careful opinion by Mr. Justice Brandies had to interpret the Senate rules in order to determine whether George Otis Smith had been properly confirmed as a member of the Federal Power Commission.

And to the argument that this Court cannot interpret the rules of the Senate, the answer was, we have to interpret the rules of the Senate when other people’s rights depend on it.

Now, what is involved here is the consequences of judicial action and judicial power which up to now has been exerted with the view to sending this petitioner to jail for contempt of Congress.

I submit it is not only proper, it is necessary for this Court, in that situation to ascertain whether these questions were asked for any proper legislative purpose or whether they were asked simply to embarrass this petitioner.

The Committee had enough facts to make the accusation.

They had enough facts for the Committee Chairman at the close of the petitioner’s testimony to come in with a verdict of guilty.

They had enough facts when the staff got together the Committee report to come in with very detailed findings as to what went on in Lake County and why did they want the petitioner there?

Frederick Bernays Wiener:

They wanted him either to admit or to plead the privilege against self-incrimination in circumstances that would have disadvantaged him in three respects.

Now, I submit, that is the — that is the — as I see it, the vital focus of this case, is it asking questions for a legitimate legislative purpose when you’re asking one man 18 questions, not for information, but in the colloquial sense, to put him on the spot, to embarrass him, to make him subject to penalties, to make him claim a privilege which will not wholly protect him, which will carry a stigma and which will disadvantage him.

I submit, if the Court please, that those questions are not questions asked for legitimate legislative fact finding purposes.