[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 113th Congress]
[House Document 112-161]
[Jeffersons Manual of ParliamentaryPractice]
[From the U.S. Government Printing Office, www.gpo.gov]
sec. xiii--examination of witnesses
Parl., 115; Grey, 16-22, 92; 8 Grey, 21, 23, 27, 45.
Witnesses are not to be produced but where the House has previously
instituted an inquiry, 2 Hats., 102, nor then are orders for their
attendance given blank. 3 Grey, 51.
In the House common fame has been held sufficient to justify procedure
for inquiry (III, 2701), as in a case wherein it was stated on the
authority of common rumor that a Member had been menaced (III, 2678).
The House also has voted to investigate with a view to impeachment on
the basis of common fame, as in the cases of Judges Chase (III, 2342),
Humphreys (III, 2385), and Durell (III, 2506).
In the House witnesses are summoned in pursuance and by virtue of the
authority conferred on a committee by the House to send for persons and
papers (III, 1750). Even in cases wherein the rules give to certain
committees the authority to investigate without securing special
permission, authority must be obtained before the production of
testimony may be compelled (IV, 4316). The rules require that subpoenas
issued by order of the House be signed by the Speaker (clause 4 of rule
I) and attested and sealed by the Clerk (clause 2 of rule II). However,
in clause 2(m) of rule XI the House has authorized any committee or
subcommittee to issue a subpoena when authorized by a majority of the
members of the committee or subcommittee voting, a majority being
present. A committee may also delegate the authority to issue subpoenas
to the chair of a full committee. Authorized subpoenas are signed by the
chair of the committee or by any other member designated by the
committee. Sometimes the House authorizes issue of subpoenas during a
recess of Congress and empowers the Speaker to sign them (III, 1806),
and in one case the two Houses, by concurrent resolution, empowered the
Vice President and Speaker to sign during a recess (III, 1763). See
McGrain v. Daugherty, 273 U.S. 135 (1927); Barry v. U.S. ex rel.
Cunningham, 279 U.S. 597 (1929); Sinclair v. United States, 279 U.S. 263
(1929). Under section 2954 of title 5, United States Code, an executive
agency, if so requested by the Committee on Government Operations (now
Oversight and Government Reform), or any seven members thereof, shall
submit any information requested of it relating to any matter within the
jurisdiction of the committee.
Sec. 341. Common fame as ground for
Common fame is a good ground for the House to proceed by
inquiry, and even to accusation. Resolution House of Commons, 1 Car., 1,
1625; Rush, L.
tive, legislative, or judicial branch of the Government of the United
States (18 U.S.C. 1001).
The Committee of the Whole of the House was charged with an
investigation in 1792, but the procedure was wholly exceptional (III,
1804), although a statute still empowers the chair of the Committee of
the Whole, as well as the Speaker, chairs of select or standing
committees, and Members to administer oaths to witnesses (2 U.S.C. 191;
III, 1769). Most inquiries, in the modern practice, are conducted by
select or standing committees, and these in each case determine how they
will conduct examinations (III, 1773, 1775). Clause 2(k) of rule XI,
contains provisions governing certain procedures at hearings by
committees (Sec. 803, infra). In one case a committee permitted a Member
of the House not of the committee to examine a witness (III, 2403).
Usually these investigations are reported stenographically, thus making
the questions and answers of record for report to the House. To sustain
a conviction of perjury, a quorum of a committee must be in attendance
when the testimony is given. Christoffel v. United States, 338 U.S. 84
(1949). Certain criminal statutes make it a felony to give perjurious
testimony before a congressional committee (18 U.S.C. 1621), to
intimidate witnesses before committees (18 U.S.C. 1505), or to make
false statements in any matter within the jurisdiction of the execu
Another provision of the Federal criminal code (18 U.S.C. 6005)
provides for ``use'' immunity for certain witnesses before either House
or committees thereof.
Sec. 343. Examination of witnesses in the House and in
When any person is examined before a committee or at the bar of
the House, any Member wishing to ask the person a question must address
it to the Speaker or chairman, who repeats the question to the person,
or says to him, ``You hear the question--answer it.'' But if the
propriety of the question be objected to, the Speaker directs the
witness, counsel, and parties to withdraw; for no question can be moved
or put or debated while they are there. 2 Hats., 108. Sometimes the
questions are previously settled in writing before the witness enters.
Ib., 106, 107; 8 Grey, 64. The questions asked must be entered in the
Journal. 3 Grey, 81. But the testimony given in answer before the House
is never written down; but before a committee, it must be, for the
information of the House, who are not present to hear it. 7 Grey, 52,
Sec. 344. Earlier and later practice as to inquiries at
the bar of the House.
The House, in its earlier years, arraigned and tried
at its bar persons, not Members, charged with violation of its
privileges, as in the cases of Randall, Whitney (II, 1599-1603),
Anderson (II, 1606), and Houston (II, 1616); but in the case of Woods,
charged with breach of privilege in 1870 (II, 1626-1628), the respondent
was arraigned before the House, but was heard in his defense by counsel
and witnesses before a standing committee. At the conclusion of that
investigation the respondent was brought to the bar of the House while
the House voted his punishment (II, 1628). The House also has arraigned
at its bar contumacious witnesses before taking steps to punish by its
own action or through the courts (III, 1685). In examinations at its bar
the House has adopted forms of procedure as to questions (II, 1633,
1768), providing that they be asked through the Speaker (II, 1602, 1606)
or by a committee (II, 1617; III, 1668). And the questions to be asked
have been drawn up by a committee, even when put by the Speaker (II,
1633). In the earlier practice the answer of a witness at the bar was
not written down (IV, 2874); but in the later practice the answers
appear in the journal (III, 1668). The person at the bar withdraws while
the House passes on an incidental question (II, 1633; III, 1768). See
McGrain v. Dougherty, 273 U.S. 135 (1927); Barry v. U.S. ex rel.
Cunningham, 279 U.S. 597 (1929); Jurney v. MacCracken, 294 U.S. 125
Sec. 345. Procuring attendance of a witness in custody of
the other House.
If either House have occasion for the presence of a
person in custody of the other, they ask the other their leave that he
may be brought up to them in custody. 3 Hats., 52.
before committees of investigation, and in at least one case the Speaker
has thus appeared (III, 1776). But in a case wherein a committee
summoned a Member to testify as to a statement made by him in debate he
protested that it was an invasion of his constitutional privilege (III,
1777, 1778; see also H. Rept. 67-1372, and Jan. 25, 1923, pp. 2415-23).
In one instance the chair of an investigating committee administered the
oath to himself and testified (III, 1821). The House, in an inquiry
preliminary to an impeachment trial, gave leave to its managers to
examine Members, and leave to its Members to attend for the purpose
At an examination at the bar of the House in 1795 both the written
information given by Members and their verbal testimony were required to
be under oath (II, 1602). In a case not of actual examination at the
bar, but wherein the House was deliberating on a proposition to order
investigation, it demanded by resolution that certain Members produce
papers and information (III, 1726, 1811). Members often give testimony
Sec. 346. Members as witnesses.
A Member, in his place,
gives information to the House of what he knows of any matter under
hearing at the bar. Jour. H. of C., Jan. 22, 1744-5.
The House and the Senate have observed this rule; but it does not
appear that they have always made public ascertainment of the
willingness of the Member to attend (III, 1790, 1791). In one case the
Senate laid aside pending business in order to comply with the request
of the House (III, 1791). In several instances House committees, after
their invitations to Senators to appear and testify had been
disregarded, have issued subpoenas. In such cases the Senators have
either disregarded the subpoenas, refused to obey them, or have appeared
under protest (III, 1792, 1793). In one case, after a Senator had
neglected to respond either to an invitation or a subpoena the House
requested of the Senate his attendance and the Senate disregarded the
request (III, 1794). Where Senators have responded to invitations of
House committees, their testimony has been taken without obtaining
consent of the Senate (III, 1793, 1795, footnote).
Sec. 347. Method of obtaining testimony of a Member of
the other House.
Either House may request, but not command, the attendance of
a Member of the other. They are to make the request by message of the
other House, and to express clearly the purpose of attendance, that no
improper subject of examination may be tendered to him. The House then
gives leave to the Member to attend, if he choose it; waiting first to
know from the Member himself whether he chooses to attend, till which
they do not take the message into consideration. But when the peers are
sitting as a court of criminal judicature, they may order attendance,
unless where it be a case of impeachment by the Commons. There it is to
be a request. 3 Hats., 17; 9 Grey, 306, 406; 10 Grey, 133.
In 1804 the House admitted the counsel of certain corporations to
address the House on pending matters of legislation (V, 7298), and in
1806 voted that a claimant might be heard at the bar (V, 7299); but in
1808, after consideration, the House by a large majority declined to
follow again the precedent of 1804 (V, 7300). In early years counsel in
election cases were heard at the bar at the discretion of the House (I,
657, 709, 757, 765); but in 1836, after full discussion, the practice
was abandoned (I, 660), and, with one exception in 1841 (I, 659), has
not been revived, even for the case of a contestant who could not speak
the English language (I, 661). Counsel appear before committees in
election cases, however. Where witnesses and others have been arraigned
at the bar of the House for contempt, the House has usually permitted
counsel (II, 1601, 1616; III, 1667), sometimes under conditions (II,
1604, 1616); but in a few cases has declined the request (II, 1608; III,
1666, footnote). In investigations before committees counsel usually
have been admitted (III, 1741, 1846, 1847), sometimes even to assist a
witness (III, 1772), and clause 2(k)(3) of rule XI now provides that
witnesses at hearings may be accompanied by their own counsel for the
purpose of advising them concerning their constitutional rights
(Sec. 803, infra). In examinations preliminary to impeachment counsel
usually have been admitted (III, 1736, 2470, 2516) unless in cases
wherein such proceedings were ex parte. During impeachment
investigations against President Nixon and President Clinton, the
Committee on the Judiciary admitted counsel to the President to be
present, to make presentations and to examine witnesses during
investigatory hearings (H. Rept. 93-1305, Aug. 20, 1974, p. 29219; H.
Rept. 105-830, Dec. 16, 1998, p. 27819).
At one time the House required all counsel or agents representing
persons or corporations before committees to be registered with the
Clerk (III, 1771). The Lobbying Disclosure Act of 1995 requires all
lobbyists to register with the Clerk of the House and the Secretary of
the Senate (2 U.S.C. 1603).
Sec. 348. Admission of counsel.
Counsel are to be heard only
on private, not on public, bills and on such points of law only as the
House shall direct. 10 Grey, 61.