YELLIN v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
Argued April 18-19, 1962. Restored to the calendar for reargument June 25, 1962. Reargued December 6, 1962.
Decided June 17, 1963.
Petitioner was summoned to appear as a witness before the House Committee on Un-American Activities, which was investigating infiltration of Communists into the steel industry. Petitioner's counsel telegraphed the General Counsel of the Committee, requesting that petitioner be permitted to testify in an executive session, because that would avoid "exposing witnesses to publicity." Without authorization, the Committee's Staff Director replied by telegram that the request was denied. At the beginning of the hearing several days later, petitioner's counsel tried to have these telegrams read into the record; but this was denied and neither petitioner nor his counsel was permitted to discuss the subject. Without specifying this as the reason, petitioner refused to answer questions asked him by the Committee, and he was indicted for violating 2 U.S.C. 192. At the trial, petitioner contended that the Committee had violated its Rule IV, which provides that witnesses shall be interrogated in executive session, if a majority of the Committee believes that his public interrogation might "endanger national security or unjustly injure his reputation, or the reputation of other individuals"; but petitioner was convicted and sentenced to a fine and imprisonment. Held: On the record in this case, it appears that the Committee violated its own Rule IV by failing to give consideration to the question whether interrogation in public would injure petitioner's reputation and by failing to act on his request that he be interrogated in executive session; and petitioner's conviction for refusal to testify in public cannot stand. Pp. 110-124.
Victor Rabinowitz reargued the cause for petitioner. With him on the briefs was Leonard B. Boudin.
Solicitor General Cox reargued the cause for the United States. With him on the briefs were Assistant Attorney General Yeagley, Bruce J. Terris, Kevin T. Maroney and Lee B. Anderson.
Osmond K. Fraenkel filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This contempt of Congress case, stemming from investigations conducted by the House Committee on Un-American Activities, involves, among others, questions of whether the House Committee on Un-American Activities failed to comply with its rules and whether such a failure excused petitioner's refusal to answer the Committee's questions. [374 U.S. 109, 111]
Petitioner Edward Yellin was indicted in the Northern District of Indiana on five counts of willfully refusing to answer questions put to him by a Subcommittee of the House Committee on Un-American Activities (hereafter Committee) at a public hearing. He was convicted, under 2 U.S.C. 192, of contempt of Congress on four counts. He was sentenced to four concurrent terms of imprisonment, each for one year, and fined $250. The Court of Appeals for the Seventh Circuit affirmed. 287 F.2d 292. Since the case presented constitutional questions of continuing importance, we granted certiorari. 368 U.S. 816 . However, because of the view we take of the Committee's action, which was at variance with its rules, we do not reach the constitutional questions raised. 1
The factual setting is for the most part not in dispute. The Committee was engaged, in 1958, in an investigation of so-called colonization by the Communist Party in basic industry. One of its inquiries focused upon the steel industry in Gary, Indiana, where petitioner was employed. Having information that petitioner was a Communist, the Committee decided to call Yellin and question him in a public rather than an executive session. The Committee then subpoenaed petitioner on January 23, 1958. His attorney, Mr. Rabinowitz, sent a telegram to the Committee's general counsel, Mr. Tavenner, on Thursday, February 6, 1958. The telegram asked for an executive session because "testimony needed for legislative . . . purposes can be secured in executive session without exposing witnesses to publicity." Since the Committee and [374 U.S. 109, 112] Mr. Tavenner had left Washington, D.C., for Gary, the telegram was answered by the Committee's Staff Director. His reply read:
Petitioner's counsel also sought to bring the matter to the Committee's attention when it commenced its public hearing the following Monday, February 10, 1958. His efforts to have the telegrams read into the record were cut short by Congressman Walter. 2 Mr. Rabinowitz would not have been justified in continuing, since Committee rules permit counsel only to advise a witness, not to engage in oral argument with the Committee. Rule [374 U.S. 109, 113] VII (B). In any event, Congressman Walter was not interested in discussing the content of the telegrams. From his sometimes conflicting testimony at trial, it appears he did not even know what the telegrams said. 3 And though Congressman Walter said the Committee would consider in executive session whether to make the telegrams a part of the record, it appears that whatever [374 U.S. 109, 114] action was taken was without knowledge of the telegrams' contents. 4
It is against this background that the Committee's failure to comply with its own rules must be judged. It has been long settled, of course, that rules of Congress and its committees are judicially cognizable. Christoffel v. United States, 338 U.S. 84 ; United States v. Smith, 286 U.S. 6 ; United States v. Ballin, 144 U.S. 1 . And a legislative committee has been held to observance of its rules, Christoffel v. United States, supra, just as, more frequently, executive agencies have been. See, e. g., Vitarelli v. Seaton, 359 U.S. 535 ; Service v. Dulles, 354 U.S. 363 .
The particular Committee Rule involved, Rule IV, provides in part:
At the threshold we are met with the argument that Rule IV was written to provide guidance for the Committee alone and that it was not designed to confer upon witnesses the right to request an executive session and the right to have the Committee act, either upon that request or on its own, according to the standards set forth in the rule. It seems clear, from the structure of the Committee's rules and from the Committee's practice, that such is not the case.
The rules are few in number and brief - all 17 take little more than six pages in the record. Yet throughout the rules the dominant theme is definition of the witness' rights and privileges. Rule II requires that the subject of any investigation be announced and that information sought be "relevant and germane to the subject." Rule III requires that witnesses be subpoenaed "a reasonably sufficient time in advance" to allow them a chance to prepare and employ counsel. Rule VI makes available to any witness a transcript of his testimony - though at his expense. Rule VII gives every witness the privilege of having counsel advise him during the hearing. Rule VIII gives a witness a reasonable time to get other counsel, [374 U.S. 109, 116] if his original counsel is removed for failure to comply with the rules. Rule X makes detailed provision for those persons who have been named as subversive, Fascist, Communist, etc., by another witness. Such persons are given an opportunity to present rebuttal testimony and are to be "accorded the same privileges as any other witness appearing before the Committee." Rule XIII permits any witness to keep out of the range of television cameras. Finally, Rule XVII requires that each witness "shall be furnished" a copy of the rules. All these work for the witness' benefit. They show that the Committee has in a number of instances intended to assure a witness fair treatment, viz., the right to advice of counsel, or protection from undue publicity, viz., the right not to be photographed by television cameras. Rule IV, in providing for an executive session when a public hearing might unjustly injure a witness' reputation, has the same protective import. And if it is the witness who is being protected, the most logical person to have the right to enforce those protections is the witness himself.
The Committee's practice reinforces this conclusion. Congressman Walter testified that the Committee "always" gave due consideration to requests for executive sessions. 5 Weight should be given such a practice of [374 U.S. 109, 117] the Committee in construing its rules, United States v. Smith, 286 U.S. 6, 33 . That the Committee has entertained, and always does entertain, requests for executive sessions reinforces the conclusion that the Committee intended in Rule IV to give the individual witness a right to some consideration of his efforts to protect his reputation.
It must be acknowledged, of course, that Rule IV does not provide complete protection. The Committee may not be required by its rules to avoid even unjust injury to a witness' reputation. Assuming that the Committee decides to hold an executive session, the Committee need do so only "for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing." (Emphasis added.) By inclusion of the word "necessity" the rule may contemplate cases in which the Committee will proceed in a public hearing despite the risk or even probability of injury to the witness' reputation. 6 [374 U.S. 109, 118]
That petitioner may be questioned in public, even after an executive session has been held, does not mean, however, that the Committee is freed from considering possible injury to his reputation. The Committee has at least undertaken to consider a witness' reputation and the efforts a witness makes to protect it, even though the Committee may in its discretion nevertheless decide thereafter to hold a public hearing. The Committee failed in two respects to carry out that undertaking in Yellin's case.
First, it does not appear from Congressman Walter's testimony that the Committee considered injury to the witness' reputation when it decided against calling Yellin in executive session:
Secondly, the Committee failed to act upon petitioner's express request for an executive session. 7 The Staff Director, who lacked the authority to do so, acted in the Committee's stead. That petitioner addressed his request to the Committee's counsel does not alter the case. The Committee did not specify in Rule IV to whom such requests [374 U.S. 109, 120] should be addressed. But from other rules it may be inferred that the general counsel is an appropriate addressee. In Rule IX, the Committee permits witnesses to file prepared or written statements for the record. The statements are to be sent to the "counsel of the Committee." Rule X makes provision for third parties who have been named as subversive, Fascist, Communist, etc., in a public hearing. A person, notified of having been named, who feels that his reputation has been adversely affected is directed to "[c]ommunicate with the counsel of the Committee." As a footnote to that rule, the Committee has said: "All witnesses are invited at any time to confer with Committee counsel or investigators for the Committee prior to hearings." Also it should be noted that the Staff Director's telegraphed response had the misleading appearance of authority and finality. The Chairman of the Committee should not now be allowed to say that had petitioner disregarded the response he received from the Chairman's staff and instead renewed his request to the Chairman, "this could not have happened" - especially when petitioner's counsel tried to bring the matter to the attention of the Committee and was brusquely cut off.
Thus in two instances the Committee failed to exercise its discretion according to the standards which Yellin had a right to have considered. His position is similar to that of the petitioner in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 . Accardi had been ordered deported. Concededly the order was valid. However, Accardi applied to the Board of Immigration Appeals for suspension of the order. This, in the discretion of the Attorney General, was permitted by 19 (c) of the Immigration Act of 1917, 39 Stat. 889, as amended, 8 U.S.C. (1946 ed., Supp. V) 155 (c). (The successor to that section in the 1952 Act is 244, 66 Stat. 214, 8 U.S.C. 1254.) [374 U.S. 109, 121] The Attorney General had by regulation permitted the Board of Immigration Appeals to make final decisions upon applications for this discretionary relief, subject to certain exceptions not involved in Accardi's case. Shortly before petitioner appealed to the Board, the Attorney General published a list of "unsavory characters," including petitioner, who were to be deported. Accardi claimed that since the Board knew he was on the list, it did not exercise the full discretion the Attorney General had delegated to it. Its decision was predetermined.
This Court held that the Board had failed to exercise its discretion though required to do so by the Attorney General's regulations. Although the Court recognized that Accardi might well lose, even if the Board ignored the Attorney General's list of unsavory characters, it nonetheless held that Accardi should at least have the chance given him by the regulations.
The same result should obtain in the case at bar. Yellin might not prevail, even if the Committee takes note of the risk of injury to his reputation or his request for an executive session. But he is at least entitled to have the Committee follow its rules and give him consideration according to the standards it has adopted in Rule IV.
At that point, however, the similarity to Accardi's case ends. Petitioner has no traditional remedy, such as the writ of habeas corpus upon which Accardi relied, by which to redress the loss of his rights. If the Committee ignores his request for an executive session, it is highly improbable that petitioner could obtain an injunction against the Committee that would protect him from public exposure. See Pauling v. Eastland, 109 U.S. App. D.C. 342, 288 F.2d 126, cert. denied, 364 U.S. 900 . Nor is there an administrative remedy for petitioner to pursue, should [374 U.S. 109, 122] the Committee fail to consider the risk of injury to his reputation. To answer the questions put to him publicly and then seek redress is no answer. For one thing, his testimony will cause the injury he seeks to avoid; under pain of perjury, he cannot by artful dissimulation evade revealing the information he wishes to remain confidential. For another, he has no opportunity to recover in damages, U.S. Const., Art. I, 6; Kilbourn v. Thompson, 103 U.S. 168, 201 -205. Cf. Tenney v. Brandhove, 341 U.S. 367, 377 . Even the Fifth Amendment is not sufficient protection, since petitioner could say many things which would discredit him without subjecting himself to the risk of criminal prosecution. The only avenue open is that which petitioner actually took. He refused to testify.
As a last obstacle, however, the Government argues that Yellin's rights were forfeited by his failure to make clear at the time he was questioned that his refusal to testify was based upon the Committee's departure from Rule IV. Whatever the merits of the argument might be when immediately apparent deviations from Committee rules are involved, 8 it has no application here. Yellin was unable, at the time of his hearing, to tell from the actions of the Committee that his rights had been violated. So far as Yellin knew, the Staff Director acted as Congressman [374 U.S. 109, 123] Walter's agent, announcing the results of the Committee's deliberations. And so far as he knew, the Committee, when it initially decided to hold a public hearing, did so in accordance with Rule IV. It was not until petitioner's trial, when his attorney for the first time had an opportunity for searching examination, that it became apparent the Committee was violating its rules.
It may be assumed that if petitioner had expressly rested his refusal to answer upon a violation of Rule IV and the Committee nevertheless proceeded, he would be entitled to acquittal, were he able to prove his defense. Otherwise, if Yellin could be convicted of contempt of Congress notwithstanding the violation of Rule IV, he would be deprived of the only remedy he has for protecting his reputation. Certainly the rights created by the Committee's rules cannot be that illusory.
Of course, should Yellin have refused to answer in the mistaken but good-faith belief that his rights had been violated, his mistake of law would be no defense. Watkins v. United States, 354 U.S. 178, 208 ; Sinclair v. United States, 279 U.S. 263, 299 . But he would at least be entitled to submit the correctness of his belief to a court of law.
Yellin should be permitted the same opportunity for judicial review when he discovers at trial that his rights have been violated. This is especially so when the Committee's practice leads witnesses to misplaced reliance upon its rules. When reading a copy of the Committee's rules, which must be distributed to every witness under Rule XVII, the witness' reasonable expectation is that the Committee actually does what it purports to do, adhere to its own rules. To foreclose a defense based upon those rules, simply because the witness was deceived by the Committee's appearance of regularity, is not fair. [374 U.S. 109, 124] The Committee prepared the groundwork for prosecution in Yellin's case meticulously. It is not too exacting to require that the Committee be equally meticulous in obeying its own rules.
[ Footnote 2 ] The Committee's General Counsel had asked Mr. Yellin a few preliminary questions when Mr. Rabinowitz interrupted.
[ Footnote 3 ] Consider, for example, the following testimony of Congressman Walter:
[ Footnote 4 ] The following occurred during Mr. Rabinowitz' direct examination of Congressman Walter:
[ Footnote 5 ] Mr. Rabinowitz asked Congressman Walter:
Note also the following question by Mr. Rabinowitz and answer by Mr. Tavenner:
[ Footnote 6 ] Although, for reasons to be developed later, it does not appear that the Committee was following Rule IV in Yellin's case, it seems clear that the Committee realized its public interrogation of Yellin would injure his reputation. Congressman Walter testified, for example, that:
From the Committee's knowledge, whether it be reliable or not, the Committee could only have concluded that Yellin's reputation would suffer. Yet Congressman Walter said this was the kind of case in which a public hearing was appropriate.
[ Footnote 7 ] Any suggestion that petitioner's request was untimely cannot be accepted. For one thing, only 14 days intervened between service of the subpoena upon petitioner and delivery of his request to the Committee's offices in Washington. Also it is of some significance that the Committee did not hold another witness at the Gary hearings, one Joseph Gyurko, to the strict standard of timeliness now urged. Gyurko had sent a telegram to the Committee's offices in Washington about noon on Saturday, February 8, 1958. When Gyurko was called on Tuesday, February 11, he was given an executive hearing, even though Congressman Walter expressed the opinion that Gyurko had deliberately waited until after business hours on Saturday to send his request. Since the Committee did not evenhandedly deny executive sessions to all who made such eleventh hour requests, it is not in a fair position to plead the untimeliness of Yellin's request.
[ Footnote 8 ] Although, as a matter of due process, a witness is entitled to an explanation of the pertinency of a question, if he asks for it, it appears he may lose that right if he fails to make a timely objection. See Deutch v. United States, 367 U.S. 456, 468 -469; Barenblatt v. United States, 360 U.S. 109, 123 -124; Watkins v. United States, 354 U.S. 178, 214 -215.
For other instances in which a witness' defense has been rejected because he failed to make timely objection, see McPhaul v. United States, 364 U.S. 372, 379 ; United States v. Bryan, 339 U.S. 323, 332 -333; Hartman v. United States, 290 F.2d 460, 467.
MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK, MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting.
Petitioner stands convicted of having refused, in violation of 2 U.S.C. 192, 1 to answer four questions asked him by the Committee on Un-American Activities of the House of Representatives. He was sentenced to one year on each count, the sentences to run concurrently, and a fine of $250. The Court of Appeals affirmed unanimously, 287 F.2d 292.
Pursuant to House of Representatives Rules XI 2 and [374 U.S. 109, 125] XII, 3 the Committee resolved that hearings would be held in Gary, Indiana, to inquire into Communist Party activities in basic industry. 4 Petitioner was subpoenaed to appear before the Committee in Gary on February 10, 1958. Four days prior to the hearing, petitioner's counsel [374 U.S. 109, 126] sent a telegram to the Committee's counsel requesting that petitioner be questioned in executive session in lieu of an open session. The Staff Director of the Committee responded the same day and denied the request.
Petitioner appeared on the appointed date with counsel. The Committee Chairman began the proceedings by reading the above-quoted resolution and by stating further the purposes of the inquiry. 5 The first witness, an organizer [374 U.S. 109, 127] and high official in the Communist Party from 1930 to 1950, testified that the Party had begun a policy of infiltrating into basic industry, that Party "colonizers" were sent to coordinate Party work in these industries, including the steel industry, and that these colonizers were mainly young men from colleges and universities. These colonizers, he continued, would misrepresent their backgrounds in applying for jobs and would conceal their educational qualifications so as to gain jobs alongside other less-educated workers without casting suspicion on their motives. [374 U.S. 109, 128]
Petitioner, who had been present for all of the foregoing, was called as the second witness immediately thereafter. After answering preliminary questions as to his name and address and after his counsel requested that the exchange of telegrams concerning the executive session be made part of the record, petitioner was asked the following question:
Petitioner was then asked to state his formal education and whether he was a student at the College of the City of New York, which he refused to do and, when directed to answer, added: "Mr. Tavenner, I will refuse to answer that question under the grounds already stated; but it just occurs to me that if the committee knows all these things, I can't see the purpose or the [374 U.S. 109, 129] pertinency of asking me what they consider a known fact. Furthermore, it kind of appears to me as if this line of questioning is merely trying to create an impression and expose me for the sake of merely exposing me and not leading to any valid legislative purpose." The Committee Chairman, in response, stated: "I will assure you that that is farthest from the intention of anybody on this committee, and this committee has never, for the mere sake of exposing, asked a question."
The Committee thereupon received in evidence copies of petitioner's college records showing that he transferred from the College of the City of New York to the University of Michigan in 1948 and that he had applied for employment in a Gary steel mill on June 23, 1949. After continued unproductive questioning, petitioner was asked:
Upon report and recommendation by the Committee, petitioner was cited for contempt by the House of Representatives and was indicated and tried for refusing to answer the four questions designated above by count numbers. The sole government witness at the trial was the Committee's counsel who testified that the purpose of the hearings was to find out how serious the Communist propaganda infiltration was in basic industry, particularly in the steel industry. The Committee wanted information on this subject, he stated, to decide whether to [374 U.S. 109, 131] amend various Acts of Congress and, in fact, members of the Committee did introduce several bills around the time of these hearings. 7 Prior to calling petitioner, he continued, the Committee had information that petitioner was a member of the Communist Party while at the University of Michigan, that he had applied for employment in Gary without disclosing his college education and that he had been employed in the steel industry in Gary.
The Committee Counsel emphasized that petitioner was summoned with the hope that he would cooperate and that the Committee believed petitioner had information about the colonization activities which had not been presented by any of the other witnesses. "We know nothing about the actual activities of the Communist Party in the steel plants in Indiana as of the time of this hearing, or shortly before. Mr. LaFleur, who did testify [at the Gary hearings], according to my recollection got out of the Communist Party in 1950. This witness, Mr. Yellin, as to whom we had testimony by several people, had been a member of the Communist Party at Michigan University, and had left there and come down and taken employment in Gary." 8 [374 U.S. 109, 132]
With respect to the denial of the request for an executive hearing, Committee Counsel testified as follows:
When asked to state the considerations which the Committee uses in determining whether to hold executive sessions, Chairman Walter explained: "This is usually done when the Committee is fearful lest a witness will mention the name of somebody against whom there is no sworn testimony, and in order to prevent the name of somebody being mentioned in public that we are not sure has been active in the conspiracy, at least that there isn't sworn testimony to that effect, we have an executive [374 U.S. 109, 135] hearing." He was aware that many witnesses refused to testify but "it is always worth a chance that somebody will testify . . . occasionally we are very pleasantly surprised at having somebody give us information that is of great value in the drafting of legislation."
Petitioner's challenge to his conviction is predicated upon, among other matters, 9 the claim that by the rules of the Committee he was improperly denied an executive session or at the very least a good-faith consideration of his request for one.
Since petitioner did not refuse to testify at the hearing on the ground that it was a public rather than a private session, it is my view that he is not entitled, at this late stage, to rely upon the Committee's alleged failure to apply its executive session rule to him.
As the courts have repeatedly held, to be available as a defense in a contempt of Congress trial, an objection must have been relied upon and asserted before the congressional committee. United States v. Bryan, 339 U.S. 323, 332 -333; United States v. Fleischman, 339 U.S. 349 , [374 U.S. 109, 136] 352; Barenblatt v. United States, 360 U.S. 109, 123 -125; McPhaul v. United States, 364 U.S. 372 ; Eisler v. United States, 83 U.S. App. D.C. 315, 170 F.2d 273; Hartman v. United States, 290 F.2d 460 (C. A. 9th Cir.); United States v. Kamin, 136 F. Supp. 791. This is no technical quibble, for there are compelling reasons to require an objection to be pursued before the Committee. It serves the administration of justice to have objections seasonably made in order that asserted errors may be corrected at the earliest possible time. As is the case in proceedings before a trial court, 1 Wigmore (3d ed. 1940) 18, at 322, the objecting party is required to state his position and afford an opportunity to act upon his claim. "The practice of withholding all objection until time of trial is not helpful in protecting a witness' right to a valid [hearing]. It prevents correction of any error in that respect and profits only the witness who seeks a concealed defect to exploit." United States v. Bryan, supra, at 344 (concurring opinion). Accordingly, if possible damage to petitioner's reputation was a ground for his demanding an executive session under the Committee's rules and for his refusal to answer questions put to him by the Committee, "a decent respect for the House of Representatives . . . would have required that [he] state [his] reasons . . . . To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of its authority and an obstruction of its processes." Id., at 332-333.
There is certainly nothing in petitioner's telegram 10 which makes out a substantial demand for an executive session. It contains simply the request itself and the unsupported [374 U.S. 109, 137] conclusion of petitioner's counsel, who, without knowing the extent or direction of the investigation, insists that petitioner's questioning could as well be conducted in executive session. There is no mention of the Committee rule or the particular grounds upon which the request was founded, nor are there any factual assertions to bring to light considerations which under the rule would call for the executive session, such as facts showing potential damage to his reputation. Indeed, it is difficult to understand how petitioner, at the time of the request, could have anticipated any ground for an executive session under the rule since he had no way of knowing what questions would be asked of him. It was not at all unlikely that petitioner would be called, like any other employee working in the steel mills at that time irrespective of Communist Party affiliation, to relate what instances of infiltration he observed while at work. See Question, ante, p. 129. Moreover, the wire was directed to one without authority to grant or deny an executive session and was sent only four days prior to the hearings and after the Subcommittee had departed for Gary.
At the opening of the hearing, Chairman Walter was entirely unfamiliar with the contents of the wire. And the exchange which occurred at that time, set out in the margin, 11 can hardly be construed as a denial of a pointed [374 U.S. 109, 138] request for an executive session based upon possible injury to Yellin's reputation. To be sure, Chairman Walter cut off petitioner's counsel immediately, but in terminating the discussion with counsel, the Chairman was simply making it clear that counsel's function before the Committee was to confer with the witness and not to argue with the Committee, which is in accordance with the Committee's rules. It was for the witness, with the help of his attorney, to answer the questions or to state his grounds for refusing to do so. The Chairman in no way indicated that the witness could not take up where counsel had left off. [374 U.S. 109, 139]
As the immediately ensuing questioning reveals, 12 petitioner had every opportunity to state his reasons for refusing to answer and every opportunity to confer with counsel. But the grounds which petitioner then gave for not answering the Committee's questions were based principally upon the First Amendment and were not grounded upon Rule IV-A, upon an alleged right to testify [374 U.S. 109, 140] in private rather than in public or upon injury to his reputation.
More than once during the hearing the Committee took particular pains to ascertain the precise grounds upon which petitioner was refusing to testify. And on more than one occasion petitioner expanded and enlarged upon his reasons for not answering the Committee's questions. At no time, however, did he mention Rule IV-A or the matter of an executive session or specify how his reputation might be injured in a public hearing. Quite the contrary, when petitioner at one point asserted that he could not "see the purpose or the pertinency of asking me what they consider a known fact . . . it kind of appears to me as if this line of questioning is merely trying to create an impression and expose me for the sake of merely exposing me and not leading to any valid legislative purpose," Chairman Walter assured him that the Committee had never asked questions for the mere sake of exposing and then inquired: "And now I would like to ask you: What do you mean by exposing you? Exposing you to what?" Petitioner's answer was entirely unresponsive. He did not explain how he would be exposed or injured and instead launched upon a discussion of academic freedom. At another point, when petitioner said: "I don't like to have my loyalty questioned or my character questioned," Chairman Walter said: "Isn't this the best place to clarify the atmosphere? If you feel as you say you do, and I am sure that you do, is this not a great opportunity to eliminate whatever question might be in anybody's mind, particularly mine, about your activities?" Petitioner's answer was to decline to discuss himself. He did not accept the invitation to say how or in what manner his reputation would be unjustly injured by testifying in public.
Even if there could be sifted from this record a bona fide assertion of a right to an executive session and a refusal [374 U.S. 109, 141] to answer based upon that ground, petitioner consistently relied upon other grounds as well and it would sweep away much established law in this Court to give his claim to an executive session any practical significance. Petitioner's central thesis and repeated reasons for not responding to questions put to him by the Committee were based upon the First Amendment. These grounds were firmly and clearly put and petitioner in no way indicated that an executive session would have made any difference in his willingness to answer questions.
The Court considered a similar situation in United States v. Bryan, 339 U.S. 323 , in connection with the same congressional committee. There, the witness at her trial for contempt asserted that her failure to produce records at the hearing was excusable because there was not a quorum present, but that ground was held unavailable because she had relied upon other grounds at the hearing. "Testimonial compulsion is an intensely practical matter. . . . [T]he fact that the alleged defect upon which respondent now insists is, in her own estimation, an immaterial one, is clearly shown by her reliance before the Committee upon other grounds for failing to produce the records. She does not deny, and the transcript of the hearing makes it perfectly clear, that she would not have complied with the subpoenas no matter how the Committee had been constituted at the time." Explaining an analogous case, Hale v. Henkel, 201 U.S. 43 , the Bryan Court noted that the witness in Hale, "having refused compliance for other reasons which the lower court could not remedy . . . could not later complain of its refusal to do a meaningless act - to grant him additional time to gather papers which he had indicated he would not produce in any event. Here respondent [Bryan] would have the Committee go through the empty formality of summoning a quorum of its members to gather in solemn conclave to hear her refuse to [374 U.S. 109, 142] honor its demands." United States v. Bryan, supra, at 334. 13
Petitioner was represented at the hearing before the Committee by experienced counsel, the same counsel who represented the witness in the Bryan case. It is difficult to believe that if petitioner was in fact refusing to answer because he was called at a public hearing instead of an executive session, express reliance upon the Committee rule would not appear in the record along with the supporting reasons. Rather, it is far more likely that petitioner preferred to include among his several reasons for refusing to answer the ground that the Committee was seeking only to expose him for exposure's sake. See Watkins v. United States, 354 U.S. 178, 187 , 200; Sweezy v. New Hampshire, 354 U.S. 234 ; NAACP v. Alabama, 357 U.S. 449 . It would have weakened if not destroyed that ground if petitioner based his refusal to testify on the executive session ground and had been granted a private hearing. Quite plainly petitioner was seeking to keep his constitutional grounds intact.
It is no answer to say that this rule of diligence can be relaxed here because petitioner was not aware until the trial that the Committee might have ignored its own rules in deliberating upon whether or not to question him in private. The point is that if petitioner has any standing to complain about the manner in which the Committee acted, it must be because he asserted at the Committee hearing, when matters were still open to direct explanation and correction, that he would suffer unjust damage to [374 U.S. 109, 143] his reputation by a public session and that he had a right under the rules of the Committee to have his reputational interest considered. Compare Watkins v. United States, 354 U.S. 178 , and Sweezy v. New Hampshire, 354 U.S. 234 , where the specific grounds sustained by the Court were vigorously asserted at the hearing. The Committee is obliged to make clear the demands which it makes upon the witness. Quinn v. United States, 349 U.S. 155 . There surely must be a reciprocal obligation on the part of the witness to advise the Committee of the precise grounds for his silence.
In any event, however, the Committee did not, as petitioner contends, fail to apply its executive session rule to him.
Article I, 5, cl. 2, of the Constitution provides that "Each House may determine the Rules of its Proceedings." The role that the courts play in adjudicating questions involving the rules of either house must of necessity be a limited one, for the manner in which a house or committee of Congress chooses to run its business ordinarily raises no justiciable controversy. Field v. Clark, 143 U.S. 649 ; United States v. Ballin, 144 U.S. 1 ; Leser v. Garnett, 258 U.S. 130, 137 ; cf. Flint v. Stone Tracy Co., 220 U.S. 107, 143 . However, when the application or construction of a rule directly affects persons other than members of the house, "the question presented is of necessity a judicial one." United States v. Smith, 286 U.S. 6, 33 ; Christoffel v. United States, 338 U.S. 84 . Even when a judicial controversy is presented, the function of the courts is a narrow one. "With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable [374 U.S. 109, 144] relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just." United States v. Ballin, supra, at 5; United States v. Smith, supra.
The Committee, pursuant to enabling resolutions of the House of Representatives in exercise of that rule-making power, promulgated its rules of procedure, number IV-A of which is in issue here:
My understanding of the testimony in the trial court is that when a witness before the Committee may implicate third persons about whom the Committee does not have reliable information, an executive session is held. In terms of Rule IV-A an executive session is afforded in these circumstances because an open hearing "might . . . unjustly injure . . . the reputation of other individuals." It is otherwise and a closed session is not required when the Committee has adequate and reliable information about the other individuals the witness may mention, for their reputation would not then be "unjustly injured" by revealing verified information in a public session.
The same considerations apply to the witness himself. "Certainly," as Mr. Tavenner testified, the rule operates for the benefit of the party testifying. See Opinion of the Court, ante, p. 116, n. 5. According to both Mr. Tavenner and Mr. Walter, Yellin was denied an executive session under the rule because he was a known Communist and the Committee had sworn testimony to this effect. The Committee believed the information furnished by its investigators about Yellin to be reliable. Measured against the plain terms of Rule IV-A, these facts did not call for a closed session. There was sworn testimony or other proof to back up the questions to be asked. There would be no "unjust injury" to the reputation of the witness Yellin. Publicly interrogating a witness if the Committee's foundation for its questions rests only upon suspicion or rumor falls within the area of unjust injury to reputation. But public revelation of the truth does not.
The foregoing appears to me to be the construction which the Committee placed upon its own rules and as so [374 U.S. 109, 146] construed it was applied here. It is true that in stating generally the considerations entering into the holding of an executive session, Mr. Walter said that private hearings are "usually" granted when third persons may be mentioned against whom there is no sworn testimony and that he did not know of any other considerations. But this general remark is, at best, ambiguous and is supplemented by his previous statements concerning the Committee's decision to hold a public hearing in petitioner's own case. That decision, according to his testimony, plainly was based upon the Committee's appraisal of its information about petitioner. Yellin was not denied an executive session because there was no indication of injury to third persons. The considerations underlying the denial were peculiar to Yellin himself. In the Committee's view, its information about him was reliable and adequate, his reputation would not be unjustly injured and he was therefore not entitled to a closed session. The Committee did not, as petitioner urges, fail to consider any element of its rule when it determined to interrogate him in a public hearing.
While the testimony is reasonably clear as to the Committee's construction and application of its own rule, if there were any doubt about the matter it is not our place to resolve every doubt against the Committee. "The presumption in favor of regularity, which applies to the proceedings of courts, cannot be denied to the proceedings of the Houses of Congress, when acting upon matters within their constitutional authority." Barry v. United States ex rel. Cunningham, 279 U.S. 597, 619 . See also McGrain v. Daugherty, 273 U.S. 135, 179 -180; In re Chapman, 166 U.S. 661, 670 . Cf. Tenney v. Brandhove, 341 U.S. 367, 378 . Due regard for the legislative branch of the Government requires a considerably clearer showing than what is offered here that the long-time Chairman of the Committee did not know his own rules when he [374 U.S. 109, 147] testified that the Committee had considered the request for an executive session and determined that the rule did not require it.
The Committee's construction of its own rules is entitled to great weight. United States v. Smith, 286 U.S. 6 ; Christoffel v. United States, 338 U.S. 84 . "To place upon the standing rules of the [Congress] a construction different from that adopted by the [Congress] . . . is a serious and delicate exercise of judicial power." United States v. Smith, supra, at 48. Here, the Committee under its rule does not deem it to be unjust injury where the truth about the witness or a third person is brought out in a public hearing in pursuance of a valid legislative purpose. This reading of Rule IV-A is not bizarre, irrational or so out of keeping with history as to permit a court to ignore it because it would prefer a different construction or an entirely different rule. The House of Representatives has its own rule concerning executive sessions, Rule XI (m), which, according to the testimony at petitioner's trial and as contrasted with the rule of the Committee, has been construed by the House to afford no protection at all to the witness himself. Moreover, 103 of the Revised Statutes, as amended, 2 U.S.C. 193 provides that "[n]o witness is privileged to refuse to testify to any fact . . . upon the ground that his testimony to such fact . . . may tend to disgrace him or otherwise render him infamous." Whatever other problems may inhere in the rule of the Committee, of the House or in the statute, the Committee's construction of its own rule heralds no break with the tradition of the House or of Congress in affording privacy to a witness when the hearing may be a fishing expedition or an inquiry into mere rumor but permitting a public session when the matter to be brought out is both pertinent to a legislative purpose and nothing but the unvarnished truth. "The Constitution commits to the [House] the [374 U.S. 109, 148] power to make its own rules; and it is not the function of the Court to say that another rule would be better." United States v. Smith, supra, at 48.
Nor is there substance in petitioner's claim that the Committee erroneously failed to act upon the telegraphic request. Under the rule, all that is required is that the Committee consider whether to hold the session in an executive hearing. Cf. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 . Here, the Committee on its own motion, even before the telegram was transmitted, had given full consideration to whether petitioner should be questioned in private. Whatever would have been the prejudice resulting from disregarding the telegram and totally failing to consider whether the questioning should be conducted in secret, there is no room for complaint on this record since the Committee had already deliberated on the matter. Once it made its assessment, as it did here, it discharged any obligation which its own rules imposed.
If "testimonial compulsion is an intensely practical matter" and "every exemption from testifying or producing records thus presupposes a very real interest to be protected," United States v. Bryan, 339 U.S. at 332, much of this discussion is really beside the point. Petitioner was convicted for refusing to answer four questions, each refusal constituting a separate count in the indictment. He was found guilty on all four counts, his sentences to run concurrently. His conviction must stand if his refusal to answer any one of the questions was unjustified. Claassen v. United States, 142 U.S. 140, 147 ; Hirabayashi v. United States, 320 U.S. 81, 85 ; Barenblatt v. United States, 360 U.S. 109, 115 . The first question which petitioner refused to answer was: "Mr. Yellin, where did you reside prior to September 1957?" Petitioner refused to respond because to him it was obvious [374 U.S. 109, 149] where "this line of questioning will probably lead" and, expressly disclaiming Fifth Amendment protection, declined to answer on First Amendment grounds.
Petitioner's conviction on Count 1 should stand quite independently as against the claim to an executive session for it is difficult indeed to ascribe any reality to the view that petitioner may not be compelled, in a public hearing held by a legislative committee in pursuit of information pertinent to a legislative purpose, to answer, or to refuse to answer, a question about his residence prior to 1957 because of danger to his reputation. Oversight of congressional committee procedures should not be based upon such frivolous grounds.
In my view, petitioner's executive session argument is totally without support, and therefore I dissent.
[ Footnote 1 ] "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."
[ Footnote 2 ] "Rule XI
[ Footnote 3 ] "Rule XII
[ Footnote 4 ] The Committee's resolution enumerated these areas of inquiry:
[ Footnote 5 ] "Under the provisions of Public Law 601, 79th Congress, the Congress has placed upon this committee certain legislative and investigative duties and, in addition, the duty of exercising continuous watchfulness over the execution of any laws, the subject matter of which is within the jurisdiction of this committee. Accordingly, within the framework of this broad jurisdiction and objectives, this subcommittee of the Committee on Un-American Activities is here in Gary for the purpose of receiving testimony concerning Communist techniques and tactics of infiltration and the extent, character, and objects of Communist Party propaganda activities in basic industries. The importance of this area of inquiry from the standpoint of national [374 U.S. 109, 127] security, cannot be overemphasized. Without this information, it would be impossible for the committee to carry out its legislative duties as required of it by the Congress.
[ Footnote 6 ] "It has been testified here that colonization of young men in the middle of their educational courses in industry was a deep-seated plan of the Communist Party to strengthen itself within basic industry. The chairman's opening statement indicated that the activities of the Communist Party within basic industries was the subject of inquiry here.
[ Footnote 7 ] H. R. 2369, 86th Cong., 1st Sess., sponsored by Congressman Walter, to redefine "organize" as used in the Smith Act; H. R. 3693, 86th Cong., 1st Sess., introduced by Congressman Scherer, to permit the Federal Government to guard strategic defense facilities against espionage, sabotage and other subversion; H. R. 9352, 85th Cong., 1st Sess., an omnibus bill to amend the Internal Security Act of 1950; H. R. 8121, 86th Cong., 2d Sess., a bill to provide a security program for defense contractors and their employees.
[ Footnote 8 ] "Q. [By Mr. Rabinowitz.] . . . [W]ill you state what information you had, and what additional information you hoped to get?
. . . . .
[ Footnote 9 ] Petitioner also raises the following questions:
(1) Did the public interest in securing answers to the questions which were the subject of the indictment outweigh the petitioner's rights under the First Amendment and the public interest in the protection of the free exchange of ideas?
(2) Was the investigation carried on by the Committee in violation of the Constitution and particularly of the First Amendment thereof?
(3) Did the trial court err in excluding certain proffered evidence on the issue of the balancing of public rights and private interests?
(4) Was the statute under which petitioner was convicted unconstitutionally vague?
(5) Were the questions which formed the basis of Counts 2 and 4 too vague to support a valid indictment?
(6) In the circumstances here shown, was there any proper legislative purpose in issuing a subpoena to petitioner?
[ Footnote 10 ] The telegram read: "Undersigned represents Edward Yellin and Nicholas Busic. On their behalf I request executive session in lieu of open session. Testimony needed for legislative purposes can be secured in executive session without exposing witnesses to publicity. Victor Rabinowitz."
[ Footnote 11 ] "Mr. TAVENNER. Will you state your name please, sir.
[ Footnote 12 ] "Mr. TAVENNER. Mr. Yellin, where did you reside prior to September 1957?
[ Footnote 13 ] See also Loubriel v. United States, 9 F.2d 807, 808: