the most consideration, went the law-making power (among others) held by the duly constituted and elected members. History has shown us that the best law is the one which is based upon the most widespread human knowledge and proper ascertainment of the facts. A rule made by one man is not nearly so good as the one a man would make after consultation with those who are intimately acquainted with the situation the rule is designed to cover. However, large bodies of men experience difficulty in taking direct action or agreeing to take action, and a corollary of this is that large. bodies of men would waste time considering in toto each item. Congress, of course, reconciles the need for consultation with the time limitation by following the committee system. The power of Congress to investigate facts is well settled by our history and precedents. The Constitution makes the legislative grant to Congress and implied in the grant is the power to do those things necessary to bring the grant into being. One means which Congress has taken to carry out the power is the committee process. The general lack of understanding of the status, duties, and powers of the congressional committees is a matter for concern in an age when the efficient functioning of legislative bodies is the principal bulwark of free men against totalitarian ideologies. As chairman of the Senate Committee on the Judiciary I felt it was desirable to make a study of proceedings involving contempt of Congress and its committees. The committee accordingly has authorized the publication of this study. It was my thought that a work such as this would serve as a source of information on the investigative function of Congress. The emphasis naturally is upon the substantive part of the study for it is essentially a memorandum involving the rights of individuals when called upon to serve the public by testifying to facts peculiar to their knowledge. An attempt has been made to clarify the procedural aspects of committee proceedings. The aspect of committee proceedings which is most widely discussed is the typical case where the witness desires to refrain from giving answers which would tend to render him infamous and abhorrent in the eyes of his fellow men. It is the clashing of two public policies: (1) the protection of the dignity of the individual; and (2) the public policy of protecting the right of the whole people to have the legislative information which the one possesses though the disclosure may unfortunately be defamatory to the witness. I believe this situation will be understood better after studying the text. It is an earnest hope that this memorandum will be of some service to committee members and to the public. ALEXANDER WILEY, Chairman, United States Senate Committee on the Judiciary. JANUARY 6, 1948. 69222 0-56-pt. 3--16 CONGRESSIONAL POWER OF INVESTIGATION This is a revision of a study prepared in the 80th Congress by the Legislative Reference Service, at the direction of Senator Wiley, for the use of the Committee on the Judiciary. The earlier study, published as a committee print, was entitled "Proceedings Involving Contempt of Congress and Its Committees." Like the earlier work, this revision examines and discusses the investigatory powers of the Congress giving particular attention to the problems faced by the legislative branch. To other persons are left the expositions of the subject as viewed by the executive and judicial branches, except insofar as reference to such views will serve as a guide to Congress. In referring to certain instances, and in selecting certain illustrations there has been no intention to criticize or reflect discredit on actions or individuals. The instances and materials have been selected because they may serve as guides or suggest variations in methods of handling problems. In some cases they are used merely to indicate possible attitudes on the part of the judiciary. This revision follows the earlier outline except that the sections dealing with punishment at the bar of the Senate or the House are placed at the end. Proceedings at the bar have not been used in recent years although they remain a potent weapon to use in obtaining definitive adjudications if the need arises and either House wills the test. There has been no enlargment of these sections. Much of the newer material incorporated has been taken from memoranda prepared by this Service. Many problems selected for presentation or examination were suggested by questions raised earlier by Members of Congress or members of the professional staffs. It is hoped that this selected material will be useful to the Members and to committees confronted in the future with situations which may be new to them. The power of Congress and its committees to obtain information deemed necessary to the legislative process and the assertion and exercise of this power has been of extreme interest throughout the history of the national lawmaking body. That Congress considered this power to be implied in the general grant of legislative power is shown by the act of May 3, 1798 (1 Stat. 554, Chap. XXXVI), which reads: SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the Senate, the Speaker of the House of Representatives, a chairman of a committee of the whole, or a chairman of a select committee of either house, shall be empowered to administer oaths or affirmations to witnesses, in any case under their examination. SECTION 2. And be it further enacted, That if any person shall wilfully, absolutely and falsely swear or affirm, touching any matter or thing material to the point in question, whereto he or she shall be thus examined, every person so offending, and being thereof duly convicted, shall be subjected, to the pains, penalties and disabilities, which by law are prescribed for the punishment of the crime of wilful and corrupt perjury. Since that date there has evolved a considerable body of law and precedent which serves as a guide to the Congress and its committees in requiring the production of information and the attendance of witnesses and in dealing with recusancy and contumacy. In recent years the practice has been to leave the punishment of recalcitrant witnesses up to the courts under Revised Statutes 102. I. CONGRESSIONAL POWER OF INVESTIGATION GENERALLY At the outset it is deemed advisable to list the following 20 guiding principles. Only basic authorities are cited. Particular attention is invited to Revised Statutes 102 (U. S. C. 2:192, infra), which applies to "every person" who fails to appear as a witness or produce the papers requested. 1. The Constitution grants the legislative authority to Congress Any authority of a congressional committee essential to the legislative process must be found in the powers granted to Congress in article I, section 1, and in section 5, clause 2, of the Constitution. SECTION 1. All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives. SECTION 5. *** Each House may determine the Rules of its Proceedings, punish its members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. 2. The constitutional grants do not spell out express powers of Congress to compel disclosures by means of contempt proceedings It is certainly true that there is no power given by the constitution to either house, to punish for contempts except when committed by their own members. Nor does the judicial or criminal power given to the United States, in any part, expressly extend to the infliction of punishment for contempt of either house, or any one coordinate branch of the government. Shall we, therefore, decide that no such power exists? It is true that such a power, if it exists, must be derived from implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers. Had the faculties of man been competent to the framing of a system of government which would have left nothing to implication, it cannot be doubted that the effort would have been made by the framers of the constitution. But what is the fact? There is not in the whole of that admirable instrument a grant of powers which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate *** (Anderson v. Dunn (1821) 6 Wheat. 204, 224). ***Whenever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to tread warily in this domain. The loose language of Kilbourn v. Thompson, 103 U. S. 168, the weighty criticism to which it has been subjected, see e. g., Fairman, Mr. Justice Miller and the Supreme Court, 332-334; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, the inroads that have been made upon that case by later cases, McGrain v. Daugherty, 273 U. S. 135, 170-171, and Sinclair v. United States, 279 U. S. 263, strongly counsel abstention from adjudication unless no choice is left (U. S. v. Rumely (1953) 345 U. S. 41, 46). 3. Power to compel pertinent disclosures is implied in the grant of all legislative power to Congress *** there is no provision expressly investing either house with power to make investigations and exact testimony to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental to the legislative function as to be implied. In actual legislative practice power to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution; and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures (McGrain v. Daugherty (1927) 273 U. S. 135, 161). 4. A legislative purpose will be presumed in authorizing a congressional investigation We cannot assume on this record that the action of the Senate was without a legitimate object, and so encroach upon the province of that body. Indeed, we think it affirmatively appears that the Senate was acting within its right, and it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded (In re Chapman (1897) 166 U. S. 661, 670). The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating; and we think the subject matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better; but in view of the particular subject matter was not indispensable *** (McGrain v. Daugherty (1927) 273 U. S. 135, 178). *** "We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended." (Quoting People v. Keeler, 99 N. Y. 473.) Accordingly, the courts will not attempt to determine in advance whether invalid or unconstitutional legislation may emanate from the investigation (U. S. v. Dennis (1947) 72 F. Supp. 417, Barsky v. U. S. (1948) 167 F. 2d 241). 5. A congressional inquiry may be as broad as the legislative purpose requires A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress * *. A judicial inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder, and the evidence admissible must be responsive to the scope of the inquiry, which generally is very broad. Many a witness in a judicial inquiry has, no doubt, been embarrassed and irritated by questions which to him seemed incompetent, irrelevant, immaterial, and impertinent. But that is not a matter for a witness finally to decide. Because a witness could not understand the purpose of cross-examination, he would not be justified in leaving a courtroom. The orderly processes of judicial determination do not permit the exercise of such discretion by a witness. The orderly processes of legislative inquiry require that the committee shall determine such questions for itself. Within the realm of legislative discretion, the exercise of good taste and good judgment in the examination of witnesses must be entrusted to those who have been vested with authority to conduct such investigations. (Townsend v. U. S. (1938) 95 F. 2d 352, 361. See also Marshall v. U. S. (1949) 176 F. 2d 473, 474, cert. den. 339 U. S. 933). 6. Appeals by persons investigated to courts for aid should be timely and necessary Once information is in the possession of a committee, courts are reluctant to interfere with its use. And so we think the law is settled that if appellant were before the Senate Committee as a witness and were questioned as to matters unrelated to the legislative business in hand, as his bill alleges is true of the messages in question, he would be entitled to refuse to answer; and if, for his supposed contumacy, he were imprisoned, he could secure his release on habeas corpus. And so, also, if a Senate Committee were to attempt to force a telegraph company to produce telegrams not pertinent to the matters the committee was created to investigate, the company could be restrained at the instance of the sender of the telegrams, for as the Supreme Court said in McGrain v. Daugherty * * * the decisions in Kilburn v. Thompson * ** and Marshall v. Gordon * *, point, in such circumstances, to admissible measures of relief. We are, therefore, of opinion that the court below was right in assuming jurisdiction as to the commission, and |