[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[§ 16. Calling Witnesses; Subpenas]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 2403-2409]
CHAPTER 15
Investigations and Inquiries
C. PROCEDURE; HEARINGS
Sec. 16. Calling Witnesses; Subpenas
This section discusses the calling of witnesses generally, and,
specifically, subpenas ad testificandum to compel testimony, and
subpenas duces tecum to compel production of papers, before the House
or Senate or their committees or subcommittees.(2) It does
not encompass all material relating to calling witnesses; subjects not
discussed here include court subpenas for House papers,(3)
investigations leading to impeachment,(4) inquiries into
conduct of Members,(5) or qualifications or
disqualifications of Members or Members-elect.(6)
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2. See Sec. 4, supra, for a discussion of subpenas issued to the
executive branch, and Sec. 11, supra, for discussion of fourth
amendment considerations. See also 1 Hinds' Precedents Sec. 25;
2 Hinds' Precedents Sec. Sec. 1313 and 1608; 3 Hinds'
Precedents Sec. Sec. 1668, 1671, 1673, 1695, 1696, 1699, 1700,
1714, 1732, 1733, 1738, 1739, 1750, 1753, 1763, 1766, 1800,
1801-1810, 1813-1820; 6 Cannon's Precedents Sec. Sec. 336, 338,
339, 341, 342, 344, 346-349, 351, 354, 376, for earlier
precedents. For related discussion, see Sec. 13.11, supra,
regarding a subpenaed witness right not to be photographed;
Sec. Sec. 15.1 and 13.6, supra, relating to disposition of
requests to subpena witnesses when derogatory information has
and has not been received, respectively; and Sec. Sec. 17.4 and
19.4, infra, relating to citation of persons who have not been
subpenaed. See also all precedents in Sec. 20, infra, as they
relate to refusals to appear, be sworn, testify, or produce
documents in response to subpenas.
3. See Ch. 11, supra, discussing privilege.
4. See Ch. 14, Impeachment Powers, supra.
5. See Ch. 12, supra.
6. See Ch. 7, Members, supra.
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A subpena is not a necessary prerequisite to an indictment and
conviction for contempt under the
[[Page 2404]]
statute, 2 USC Sec. 192, because its provisions apply to contumacy by
every person who has been ``summoned as a witness by the authority of
either House of Congress to give testimony or to produce papers. . .
.'' (7)
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7. Kamp v United States, 176 F2d 618 (D.C. Cir. 1948). See also,
Sinclair v United States, 279 U.S. 263, 291 (1929), which held
that the contempt statute extends to a case where a witness
voluntarily appears as a witness. Nonetheless, the House has
deleted from a contempt citation names of persons who had not
been subpenaed; see Sec. 17.4, infra.
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A voluntary appearance before a committee does not immunize a
person against service of a subpena. Consequently, a witness who was
served with a subpena at a hearing at which he appeared voluntarily and
refused to answer questions could legally be indicted and convicted of
contempt.(8)
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8. Dennis v United States, 171 F2d 986 (D.C. Cir. 1948).
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A properly authorized subpena issued by a committee or subcommittee
has the same force and effect as a subpena issued by the House or
Senate itself.(9) Authority to issue subpenas is granted
either by provisions of the rules of the House (10) or
resolutions approved by the House or Senate.(11)
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9. McGrain v Daugherty, 273 U.S. 135, 158 (1927). See discussion at 6
Cannon's Precedents Sec. 341; see also In re Motion to Quash
Subpenas and Vacate Service, 146 F Supp 792 (W.D. Pa. 1956).
10. In the 93d Congress, five committees, Appropriations, Budget,
Government Operations, Internal Security, and Standards of
Official Conduct, possessed authority under the rules to grant
subpenas; see Rule XI clauses 2(b), 8(d), and 11(b)
respectively, House Rules and Manual Sec. Sec. 679, 691, and
703 A (1973). In the 94th Congress, all committees functioning
under Rule X or XI were granted subpena authority by the
standing rules and only select committees derived subpena
authority from special resolutions.
11. Note: Recent changes in the procedure described herein, including
methods of authorization, will be discussed in supplements to
this edition as they appear.
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Because failure to comply with procedures prescribed in the rules
or authorizing resolution invalidates subpenas, a subpena signed by the
chairman but not authorized by a subcommittee (12) and
another authorized by the chairman after consultation with one other
member but not the full subcommittee,(13) were held invalid.
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12. Shelton v United States, 327 F2d 601 (D.C. Cir. 1963).
13. Liveright v United States, 347 F2d 473 (D.C. Cir. 1965).
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Parliamentarian's Note: The committee or subcommittee must actually
meet with a quorum
[[Page 2405]]
present to authorize the issuance of a subpena, since under section 407
of Jefferson's Manual a committee ``can only act when together, and not
by separate consultation and consent.''
Minor irregularities in the form of a subpena do not invalidate it
when the meaning is clear to the person to whom it is directed. An
objection to a variance between a subpena duces tecum which directed
the witness to produce records of the United Professional Workers of
America, and an indictment, which alleged refusal to produce records of
the United Public Workers of America, of which the witness was
president, was held to be frivolous, particularly because the witness
called attention to the error.(14)
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14. Flaxer v United States, 235 F2d 821 (D.C. Cir. 1956), vacated and
remanded, 354 U.S. 929 (1957), aff'd., 258 F2d 413 (D.C. Cir.
1958), reversed on other grounds, 358 U.S. 147 (1958).
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A subpena directing a member of the executive board of an
association to produce organizational records was held not defective as
being addressed to an individual member of the board rather than to the
association.(15) And postponement of a hearing did not
excuse a refusal to testify on a date subsequent to the one that
appeared on the subpena, despite the fact that the subpena did not
contain a clause directing the witness to remain until excused, when
the witness was present in Washington on the later date to attend the
hearing and did not raise the issue at the time.(16)
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15. United States v Fleischman, 339 U.S. 349 (1950), rein. denied, 339
U.S. 991 (1950).
16. United States v Groves, 18 F Supp 3 (W.D. Pa. 1937).
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Unlike a minor irregularity in form, a finding of invalidity of
part of a subpena voids the whole subpena. Following the general rule
that, ``one should not be held in contempt under a subpena that is part
good and part bad,'' (17) a court of appeals stated in one
case that the court had a burden to see that the subpena was good in
its entirety. Believing that a person facing punishment should not have
to cull the good from the bad, the court dismissed the indictment for
contempt, because the subpena exceeded the authority delegated to the
committee.(18) Similarly, the contempt conviction of the
Executive Director of the Port of New York Authority, who provided
subpenaed materials relating to the actual activities and
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17. Bowman Dairy Company v United States, 341 U.S. 214 (1951).
18. United States v Patterson, 206 F2d 433 (D.C. Cir. 1953).
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[[Page 2406]]
operations of the authority but refused to supply materials relating to
the reasons for these activities, was reversed on the ground that the
latter category exceeded the authority granted by the House to the
investigative unit, a subcommittee.(19) Nonetheless, in one
case it was held that the mere possibility that the general terms of a
subpena could be construed to include materials protected by the first
amendment could not justify a blanket refusal to produce anything, in
the absence of an objection that the subpena was too
broad.(20) And a witness' conviction for obstruction of
justice for mutilating or concealing records subpenaed was upheld on
appeal notwithstanding the fact that the subpena had not been properly
authorized. A valid subpena was not considered vital, since the
defendant knew the documents were desired by a congressional
committee.(1)
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19. Tobin v United States, 306 F2d 279 (1962), cert. denied, 371 U.S.
902 (1962).
20. Shelton v United States, 404 F2d 1292 (D. C. Cir. 1968), cert.
denied, 393 U.S. 1024 (1969).
1. United States v Presser, 292 F2d 171 (6th Cir. 1961), aff'd. 371
U.S. 71 (1961).
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To assure the attendance of a witness who refused to answer
questions before a committee, the House or Senate may order the Speaker
or President of the Senate, respectively, to issue a warrant ordering
the Sergeant at Arms to arrest the witness and bring him before the bar
of the parent body, if there is a reasonable belief that important
evidence may otherwise be lost.(2)
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2. Barry v United States ex rel. Cunningham, 279 U.S. 597, 619 (1929).
This case, based on an investigation of a Senator-elect, is
discussed at 6 Cannon's Precedents Sec. Sec. 346-349.
The fact that an alien who had been subpenaed by a House
committee was arrested by Immigration and Naturalization
Service officers and taken before the committee in their
custody did not relieve him of his obligation to testify.
Although the issue of legality or illegality of the arrest
could be raised in a judicial proceeding, it was irrelevant to
the committee proceedings. Eisler v United States, 170 F2d 273
(D.C. Cir. 1948), cert. dismissed, 338 U.S. 883 (1949).
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Where a committee of Congress has subpenaed a witness to appear at
a hearing without defining questions to be asked, the judicial branch
should not enjoin in advance the holding of the hearing or suspend the
subpena; the rights of a witness regarding any question actually asked
at the hearing are subject to determination in appropriate proceedings
thereafter.(3)
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3. Mins et al. v McCarthy, 209 F2d 307 (D.C. Cir. 1953).
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[[Page 2407]]
Two recent cases discussing injunctions against compliance
with congressional requests or subpenas will be treated in more
detail in supplements to this edition. In an action by Ashland
Oil, Inc., to enjoin the Federal Trade Commission from
furnishing certain trade secrets to a congressional
subcommittee, the Court of Appeals for the District of Columbia
held that the Federal Trade Commission was not precluded by
statute from transmitting trade secrets to Congress pursuant
either to subpena or formal request. Ashland Oil, Inc. v
Federal Trade Commission, 548 F2d 977 (D.C. Cir. 1976). In the
other case, the Justice Department sought to enjoin American
Telephone & Telegraph Co. from complying with a subpena issued
by the Chairman of the House Committee on Interstate and
Foreign Commerce. The information sought pursuant to the
subpena related to electronic surveillance, and the executive
branch contended that disclosure of the information created a
risk to national security. The District Court for the District
of Columbia having issued an injunction against compliance with
the congressional subpena, the U.S. Court of Appeals for the
District of Columbia remanded the case without decision on the
merits and called for further negotiations between the parties.
United States v American Telephone & Telegraph Co., 551 F2d 384
(D.C. Cir. 1976). The Court further directed the District Court
to modify the injunction with respect to information regarding
domestic surveillance, disclosure of which had not been found
to create an undue risk to national security.
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Habeas Corpus
Sec. 16.1 A subcommittee may petition a court to issue a writ of habeas
corpus to compel attendance of an incarcerated person at a
committee hearing.
On Sept. 10, 1973,(4) the fact that the Special
Subcommittee on Intelligence of the Committee on Armed Services had
petitioned a U.S. district court to issue a writ of habeas corpus ad
testificandum to compel the attendance of a witness, G. Gordon Liddy,
before a hearing of the subcommittee, was revealed to the House in
House Report No. 93-453.
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4. 119 Cong. Rec. 28951, 93d Cong. 1st Sess.
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Background
At the time of the subcommittee hearings, Mr. Liddy was in
confinement in the District of Columbia Jail as the result of his
conviction on the Watergate breakin. Accordingly, the subcommittee
petitioned Chief Judge John J. Sirica of the United States District
Court for the District of Columbia for a Writ of Habeas Corpus Ad
Testificandum as the only means of obtaining Mr. Liddy's presence
before the subcommittee. In his discretion Judge Sirica signed that
petition and an order was delivered to the United States Marshal
for Mr. Liddy's appearance before the subcommittee on July
[[Page 2408]]
20, 1973. [See Appendix 1, pp. 16-17.] Mr. Liddy appeared as
ordered.
Subpena as Prerequisite for Contempt
Sec. 16.2 The House and not the Chair determines whether persons who
have not been subpenaed may be cited for refusal to produce
organizational books, records, and papers.
On Mar. 28, 1946,(5) Speaker Sam Rayburn, of Texas,
responded to a point of order regarding authority to entertain a
resolution citing for contempt persons who had not been subpenaed.
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5. 92 Cong. Rec. 2743-45, 79th Cong. 2d Sess.
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Mr. [John S.] Wood [of Georgia]: Mr. Speaker, by direction of
the Committee on Un-American Activities, I present a privileged
report and ask that it be read. . . .
Committee on Un-American Activities
The Speaker: The Clerk will read the report of the Committee on
Un-American Activities.
The Clerk read as follows:
Proceeding Against Dr. Edward K. Barsky and Others
Mr. Wood, from the Committee on Un-American Activities,
submitted the following report:
The Committee on Un-American Activities as created and
authorized by the House of Representatives by House Resolution
5 of the Seventy-ninth Congress, caused to be issued a subpena
to Dr. Edward K. Barsky, chairman of the Joint Anti-Fascist
Refugee Committee, an unincorporated organization with offices
at 192 Lexington Avenue, New York, N.Y. The said subpena
required the said person to produce books, papers, and records
of the organization for the inspection of your committee; the
subpena is set forth as follows: . . .
In his appearance before the committee, Dr. Barsky stated that he
was unable to produce the subpenaed materials because that authority
had not been granted by the members of the executive board.
At the request of a committee member, he supplied a list of names
and addresses of board members. This list appeared in the report and
resolution. Thereafter the following resolution was considered:
Mr. Wood: Mr. Speaker, I offer a privileged resolution (H. Res.
573) and ask for its immediate consideration.
The Clerk read the resolution, as follows:
Resolved, That the Speaker of the House of Representatives
certify the report of the House Committee on Un-American
Activities as to the willful and deliberate refusal of the
following persons to produce before the said committee for its
inspection the books, papers, and records of an unincorporated
organization known as the Joint Anti-Fascist Refugee Committee,
with offices at 192 Lexington Avenue, New York, N. Y., together
with all the facts relating
[[Page 2409]]
thereto, under seal of the House of Representatives, to the
United States attorney for the District of Columbia to the end
that the said persons named below may be proceeded against in
the manner and form provided by law:
Dr. Edward K. Barsky, 54 East Sixty-first Street, New York
City.
Dr. Jacob Auslander, 288 West Eighty-sixth Street, New York
City.
Prof. Lyman R. Bradley, New York University, New York City.
Mrs. Marjorie Chodorov, 815 Park Avenue, New York City. . .
.
Mr. [Vito] Marcantonio [of New York]: Mr. Speaker, a point of
order.
The Spearer: The gentleman will state it.
Mr. Marcantonio: Mr. Speaker, I make a point of order against
the resolution on the ground that it seeks to have cited by this
House individuals who were never subpenaed, and never given an
opportunity to appear and state whether or not they would or could
comply with a subpena. Under those circumstances, I maintain that
insofar as those individuals are concerned this matter is not
properly before the House, in that neither the resolution nor the
report from the committee sets forth that these individuals were
subpenaed, with the exception of Dr. Barsky. None of the others
were subpenaed; none of the others came before the committee and
were accorded even an opportunity to say ``yes'' or ``no'' as to
whether or not they had authority or control over the records and
books and whether they could or would comply with the committee's
subpena. For that reason, as far as they are concerned, this
resolution is not properly before this House.
The Speaker: The Chair is ready to rule.
The report and the resolution are both before the House for its
determination, and not the determination of the Chair. The Chair
overrules the point of order.(6)
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6. See Sec. 17.4, infra, discussing adoption of an amendment deleting
names of all persons who had not been subpenaed.
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