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UNITED STATES v. WELDEN.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. No. 235.
Argued February 27, 1964.
Decided April 20, 1964.
An indictment against appellee under the Sherman Act and Conspiracy Act concerned matters about which he had previously testified before a congressional subcommittee. The District Court dismissed the indictment, upholding appellee's contention that prosecution was barred under the immunity provision of the Act of February 25, 1903, providing that no person shall be prosecuted on account of any matter concerning which he testifies "in any proceeding, suit, or prosecution" under the Sherman Act and other specified statutes. Held: Appellee's testimony before the congressional subcommittee did not immunize him from prosecution, the Act of February 25, 1903, as amended in 1906, confining immunity to persons who testify in judicial proceedings under oath and in response to a subpoena.
215 F. Supp. 656, reversed and remanded.
Irwin A. Seibel argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Orrick and Robert B. Hummel.
George H. Lewald argued the cause for appellee. With him on the brief were Edward B. Hanify and Alan D. Hakes.
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
This appeal presents the question of whether a person who has testified under subpoena before a congressional committee investigating the operation of the Antitrust Acts has testified in a "proceeding, suit, or prosecution under said Acts" thereby acquiring immunity from prosecution [377 U.S. 95, 96] under the Act of February 25, 1903, 32 Stat. 854, 904. 1
The facts are undisputed. On September 6, 1962, appellee, along with other individuals and corporations, was indicted on charges of conspiring to fix milk prices and to defraud the United States, in violation of 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1, and the Conspiracy Act, 62 Stat. 701, 18 U.S.C. 371. Appellee moved to dismiss the indictment on the ground, inter alia, that the prosecution was barred under the immunity provision of the Act of February 25, 1903, because he had previously testified before a subcommittee of the House Select Committee on Small Business concerning matters covered by the indictment. The Government opposed the motion to dismiss contending that the immunity provision of the Act of February 25, 1903, extends only to judicial proceedings and not to hearings before congressional committees. 2 The District Court for the District of Massachusetts, rejecting the Government's contention, dismissed the indictment against appellee. The Government appealed the dismissal directly to this Court pursuant to the Criminal Appeals Act, 62 Stat. 844, as amended, 18 U.S.C. 3731. Probable jurisdiction was noted. 375 U.S. 809 .
We hold, for the reasons stated below, that the immunity provision of the Act of February 25, 1903, applies only to persons testifying in judicial proceedings, not to persons testifying before committees or subcommittees of Congress.
The immunity provision in question was enacted as part of an appropriations act which declared:
In Hale v. Henkel, 201 U.S. 43 , decided only three years after the passage of the Act of February 25, 1903, this Court construed that Act in accordance with the plain meaning of its words as follows:
Appellee does not really dispute this. His basic contention, which is not accepted by any member of the Court, 5 is that the 1906 immunity statute 6 amended the Act of February 25, 1903, to extend immunity to persons who testified in nonjudicial as well as judicial proceedings. He does not contend that the 1906 statute, by its terms, so amended the 1903 Act. He offers the following interpretation of the events leading up to the enactment of the 1906 statute in support of the contention that the 1903 Act was amended by implication to extend to non-judicial proceedings. In the case of United States v. Armour & Co., 142 F. 808, decided three years after the enactment of the 1903 Act, the United States District Court for the Northern District of Illinois held that certain defendants had been immunized from prosecution under the Antitrust Laws by giving unsubpoenaed and unsworn testimony in a nonjudicial investigation conducted [377 U.S. 95, 100] by the Commissioner of Corporations, 7 an official of the Department of Commerce and Labor. 8 Congressional reaction to this decision was immediate and adverse, and within four months Congress enacted the 1906 immunity statute. 9 This statute specifically limited immunity under existing immunity statutes to persons testifying under oath and in obedience to subpoena. 10 Appellee contends that the purpose of Congress in enacting the 1906 statute was to remedy the objectionable features of the Armour decision, and that since the statute did not "remedy" the court's holding that immunity could be obtained by testifying in a nonjudicial proceeding, it follows that Congress did not regard that holding as objectionable. He asks us to conclude, therefore, that [377 U.S. 95, 101] "proceeding" as used in the immunity provision of the Act of February 25, 1903, must now be read to include nonjudicial as well as judicial proceedings.
This argument erroneously assumes that the Armour decision rested on a construction of "proceeding, suit, or prosecution" in the immunity provision of the Act of February 25, 1903. A reading of that decision reveals, however, that it rested primarily on the Commerce and Labor Act, which contained a specific grant of immunity to persons who testified in investigations, admittedly nonjudicial, conducted by the Commissioner of Corporations. 11 In deciding the Armour case, the court felt it [377 U.S. 95, 102] "necessary to look into the purposes of Congress in passing the commerce and labor act in order that the court may determine what construction will best carry out the legislative intent." 142 F., at 819. After a detailed analysis of that statute and its history, the court concluded that the Commerce and Labor Act was dispositive of the case and that defendants were entitled to immunity thereunder. Following this conclusion, the judge added a brief paragraph in which he said, without analyzing (or even quoting) the language or history of the Act of February 25, 1903, that he was "of opinion" that the defendants would also be entitled to immunity under that Act as well. Id., at 826. 12 In the very next paragraph, [377 U.S. 95, 103] however, the judge again described the opinion as resting on "the construction here given to the commerce and labor law . . . ." Ibid.
The controversial feature of the Armour decision, and the only one which Congress was interested in remedying, was the holding that unsubpoenaed and unsworn testimony came within "the purposes of Congress in passing the commerce and labor act . . . ." 142 F., at 819. Congress wanted to be certain that persons anticipating indictment could not immunize themselves from prosecution by volunteering to give unsworn testimony. 13 There was nothing controversial about the court's holding that immunity could result from testimony given in an investigation conducted by the Commissioner of Corporations, since the Commerce and Labor Act specifically granted immunity for testimony given in such an investigation.
It is not at all significant, therefore, that Congress, while "remedying" the Armour holding that immunity could be obtained from testimony which was unsworn and voluntary, did not "remedy" the holding that immunity could result from testimony given in nonjudicial investigations conducted by the Commissioner of Corporations. [377 U.S. 95, 104]
Congress, in enacting the 1906 statute, did not manifest any intent to enlarge the reach of the immunity provision of the Act of February 25, 1903, to include nonjudicial proceedings. The purpose of the 1906 statute was not to define the type of proceeding in which immunity, under existing statutes, could be obtained. Its sole purpose was to define the type of testimony for which immunity, under existing statutes, could be obtained. This is all Congress was asked to do by President Theodore Roosevelt in his message recommending the legislation which became the 1906 statute. In his message the President said:
We conclude, therefore, that the 1906 statute did not, either expressly or implicitly, extend the immunity provision of the Act of February 25, 1903, to include non-judicial proceedings. The 1906 Act simply limited immunity to persons testifying under oath and in response to subpoena.
Our decision today is based solely on the language and legislative history of the relevant congressional enactments. Congress has extended immunity, with careful safeguards, to persons testifying before congressional committees in certain limited situations not here involved. 18 Where Congress, however, has limited immunity to persons testifying in judicial proceedings, as it has plainly done here, it is not for the courts to extend the scope of the immunity.
The District Court erred, therefore, in holding that appellee's testimony before a congressional subcommittee had immunized him from prosecution. The judgment dismissing the indictment is reversed and the case remanded for proceedings in conformity with this opinion.
[ Footnote 2 ] The Government concedes that the testimony given before the subcommittee related to matters charged in the indictment.
[ Footnote 3 ] Congressional hearings are generally conducted under the Legislative Reorganization Act of 1946, 60 Stat. 812, under the rules or regulations of either House, or, as in the present case, under a special resolution. H. Res. 51, 86th Cong., 1st Sess., 105 Cong. Rec. 1785.
[ Footnote 4 ] This Act, as codified, appears at 15 U.S.C. 32. The codification, which has not been enacted into positive law, eliminates the appropriation provision of the Act which by its terms was of no effect after June 30, 1904. The codification makes no other change. 61 Stat. 638, 1 U.S.C. 204 (a), declares that the United States Code establishes "prima facie the laws of the United States, general and permanent in their nature . . . Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts . . . ." This Court, in construing that statute has said that "the very meaning of `prima facie' is that the Code cannot prevail over the Statutes at Large when the two are inconsistent." Stephan v. United States, 319 U.S. 423, 426 . Even where Congress [377 U.S. 95, 99] has enacted a codification into positive law, this Court has said that the
[ Footnote 5 ] See dissenting opinion of MR. JUSTICE BLACK, post, at 113, note 11.
[ Footnote 6 ] The text of the 1906 statute is set forth infra, note 9.
[ Footnote 7 ] This conclusion was reached after the taking of testimony. Accordingly, the Government could not appeal the trial court's directed verdict of acquittal.
[ Footnote 8 ] The Armour case arose before the creation of independent Departments of Labor and of Commerce.
[ Footnote 9 ] The full text of the 1906 Act is as follows.
[ Footnote 10 ] See discussion of these events in United States v. Monia, 317 U.S. 424, 428 -429.
[ Footnote 11 ] "An Act to establish the Department of Commerce and Labor" provided in relevant part:
[ Footnote 12 ] Although Congressman Littlefield referred to this dictum in the debate on the House version of the bill, 40 Cong. Rec. 8738, he did not intimate that the 1903 Act was applicable to congressional investigations or that the purpose of the 1906 Act was to make it so applicable. On the contrary, Congressman Littlefield stated that the sole purpose of the Act was to limit immunity to subpoenaed and sworn testimony. He specifically said, moreover, that the 1906 Act and the Acts which it amended were intended to apply only to a "criminal prosecution . . . [and to investigations conducted by] the Interstate Commerce Commission . . . or by the Commissioner of Corporations . . .," and that the 1906 Act was intended to assure that no "person shall have the power to offer immunity to a witness except the Government of the United States or some officer acting in behalf thereof." Id., at 8739. This language, in its context, would not seem to include members or Committees of Congress. See also H. R. Rep. No. 3797, 59th Cong., 1st Sess. Furthermore, even if we were to assume arguendo that the Armour decision was based on a construction of the Act of February 25, 1903, we would be hesitant to accept appellee's argument that the failure of Congress to overrule that construction resulted in an amendment by implication. Amendments by implication, like repeals by implication, are not favored. See 1 Sutherland, Statutory Construction (3d ed.) 365-366 (citing cases). As this Court said in Jones v. Liberty Glass Co., 332 U.S. 524, 534 : "We do not expect Congress to make an affirmative move every time a lower court indulges in an erroneous interpretation. In short, the original legislative language speaks louder than such judicial action."
[ Footnote 13 ] See United States v. Monia, supra, at 429.
[ Footnote 14 ] The Senate version of the bill prevailed in conference and was adopted. See H. R. Rep. No. 5049, 59th Cong., 1st Sess.
[ Footnote 15 ] Senator Daniel's supposition that the 1906 Act "applies" to congressional committees was probably based on the erroneous assumption that the 1906 Act, in addition to amending the Acts to which it made specific reference, see note 9, supra, also amended 12 Stat. 333 which provided that: "the testimony of a witness examined and testifying before either House of Congress, or any committee of either House of Congress, shall not be used as evidence in any criminal proceeding against such witness in any court of justice . . . ." This statute was superseded in 1954 by 68 Stat. 745, 18 U.S.C. 3486.
[ Footnote 16 ] Although the 1906 amendment referred to the Act of February 25, 1903, along with other immunity statutes, in limiting immunity to persons testifying under oath and in response to subpoena, Senator Knox was correct in suggesting that the Amendment would have little, if any, application to judicial testimony which is commonly sworn and subpoenaed.
[ Footnote 17 ] In Monia, which involved a grand jury investigation, the appropriate "Government officials" were the Attorney General and his subordinates. In Armour the appropriate government official was the Commissioner of Corporations. Congress may of course designate its own members as appropriate officials, as it has in fact done in certain limited situations not here involved, see note 18, infra.
It is true that the Monia opinion, with regard to the issue raised in that case, considered the 1903 Act as having the same effect as the Interstate Commerce Act. The issue in that case was whether a witness was required to claim his privilege against self-incrimination as a condition of obtaining immunity. It is undisputed that the 1906 Act standardized the rules relating to the types of testimony which would be privileged under the Interstate Commerce Act, the Commerce and Labor Act, and the Act of February 25, 1903. The 1906 Act did not, however, standardize (or alter) the types of proceedings in which immunity could be obtained.
[ Footnote 18 ] See Immunity Act of 1954, 68 Stat. 745, 18 U.S.C. 3486.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting.
The appellee was indicted for conspiracy 1 and violation of 1 of the Sherman Act 2 shortly after he had [377 U.S. 95, 108] appeared and testified about the alleged violation before a Committee of Congress in obedience to its subpoena. The District Court dismissed the indictment on the ground that the prosecution was barred by the Antitrust Immunity Act of February 25, 1903, 3 as amended in 1906. 4 The Immunity Act provides:
The Court appears to find much comfort for its holding in the Act's language appropriating funds to the Attorney General for the employment of special counsel and agents of the Department of Justice "to conduct proceedings, suits, and prosecutions under said [Interstate Commerce or Antitrust] Acts in the courts of the United [377 U.S. 95, 109] States." The Immunity Act itself was appended to the appropriation language following the word "Provided." But the appropriation provision was merely utilized as a legislative vehicle for passage of the substantive Immunity Act in the form of a proviso. The language after the word "Provided" is a separate and distinct immunity enactment, itself part of an immunity program enacted by Congress in 1903 in order to aid in the enforcement of the Antitrust Acts by compelling witnesses to testify upon this broad statutory promise of immunity by the Government. 6 This immunity provision of the 1903 enactment is complete in itself, independent of the appropriation provision. In fact, so independent is the immunity provision, that in the codification of the statute, 15 U.S.C. 32, the appropriation provision has been dropped altogether, making the majority's effort to limit the immunity provision's language by that of the appropriation provision even more strained. Therefore the 1903 Act, as amended in 1906, clearly - unless the meaning of its language is to be amended by judicial decree - stands as a lasting obligation upon the Government to give complete immunity to a witness who testifies "in obedience to a subpoena . . . under oath," not merely in a "suit, or prosecution under said Acts" but "in any proceeding . . . under said [Interstate Commerce or Antitrust] Acts." The word "proceeding," broad enough to include testimony before a grand jury, Hale v. Henkel, 201 U.S. 43 , is also broad enough to include testimony given under oath in obedience to a subpoena before any federal agency or legislative committee investigating antitrust violations. [377 U.S. 95, 110]
The historical setting of the 1903 Immunity Act shows, I think, beyond any shadow of a doubt, that the word "proceeding" was deliberately chosen in order to provide a grant of immunity for testimony concerning antitrust violations given before investigatory agencies that were wholly nonjudicial. During the month of February 1903, Congress also passed an Act, including provisions for immunity, which established the Department of Commerce and Labor and conferred upon the Commissioner of Corporations (an official of the Department of Commerce and Labor) the investigatory powers possessed by the Interstate Commerce Commission. 32 Stat. 825, 828. See also 32 Stat. 847, 848. Soon after the 1903 legislation was passed, officers of Armour & Company testified voluntarily before the Commissioner of Corporations concerning antitrust violations. The company and the officers were later indicted by a federal grand jury for violation of the Sherman Act. United States District Judge Humphrey in 1905, in United States v. Armour & Co., 142 F. 808 (D.C. N. D. Ill.), directed a verdict for the individual defendants on the ground that the Antitrust Immunity Act of February 25, 1903, gave individuals who testified before the Commissioner of Corporations complete immunity from prosecution. The district judge held that this immunity was granted both by that Act (the Act here in question) and by the Commerce and Labor Act of 1903, supra. As to the applicability of the Act before us, he said:
The subsequent legislative treatment of the Antitrust Immunity Act of 1903 supports Judge Humphrey's holding that the complete immunity which that Act granted was not limited to testimony given in judicial proceedings only. The part of Judge Humphrey's opinion that caused great concern to the Government was his holding that witnesses obtained complete immunity from prosecution based on their testimony even though they had not been subpoenaed or put under oath. This concern prompted President Theodore Roosevelt to send a message to Congress requesting that the law be amended in this respect. The President's message specifically showed that he did not want to take away the immunity of witnesses who testified or produced documentary evidence, but simply wanted the law to grant immunity only to witnesses who appeared under subpoena and testified under oath - that is, those who were compelled to testify. Showing that this was his only objection to Judge Humphrey's holding, the President in his message told the Congress:
From that day until this no one seems ever to have doubted that this reading of the 1903 Antitrust Immunity Act was correct. In fact, in 1942 this Court obviously read the statute the same way in United States v. Monia, 317 U.S. 424 . Monia and another claimed complete immunity under that Act as amended in 1906 because they had testified before a federal grand jury inquiring into alleged violations of the federal antitrust laws. The Act [377 U.S. 95, 114] was fully considered in the majority opinion by Mr. Justice Roberts and in the dissenting opinion of Mr. Justice Frankfurter. Not only was there in that case no intimation that the immunity provided in the Act was for testimony given before judicial agencies only, but both opinions went on a precisely opposite assumption. In holding that the Act gave immunity even to a witness who had not asserted his Fifth Amendment privilege against being compelled to testify against himself, Mr. Justice Roberts speaking for the Court treated the 1903 Act before us as covering the same kinds of "proceedings" as the immunity provisions of the Interstate Commerce Act, as amended in 1893, 12 which gave a complete immunity for testimony given before the Commission. Moreover, in his detailed dissent Mr. Justice Frankfurter referred at length to the immunity provisions contained in various statutes establishing governmental agencies both before and after the passage of the 1903 Act, such as the Securities Act, 13 the Public Utility Holding Company Act, 14 the Motor Carrier Act, 15 the Fair Labor Standards Act, 16 and various others. 317 U.S. 424, 431 . Surely all these were not cited in the belief that the 1903 Act related to testimony given before judicial bodies only. It is plain beyond doubt that they were referred to on the assumption that the 1903 Act granted whatever immunity it did, not merely for testimony given before judicial bodies, but for testimony given before all the various governmental agencies that subpoena witnesses to give evidence before them on antitrust matters.
The Antitrust Immunity Act of 1903 was passed at a time when the fear of prosecution was making testimony [377 U.S. 95, 115] from witnesses often impossible to obtain and thereby impeding enforcement of the antitrust laws. It was passed by a Congress friendly to those laws, not to frustrate but to help enforce them. 17 Whether it was a wise or, in the case of an unwilling witness, constitutionally legitimate 18 means for Congress to use in seeking that goal is not the issue in this case. Wise or unwise, it was a solemn promise made by Congress which I think the Government should keep, just as I thought that the Government should have been compelled to keep a solemn promise of immunity made by the Secretary of the Treasury in Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367 (dissenting opinion). The very fact that the Court must labor so long and hard to reach its result is in my judgment strong evidence that that result should not have been reached, for I think that when the Government makes an obligation in broad terms on which individuals have a reasonable right to rely, it should not seek to have all doubts resolved in its own favor against the private citizens who have taken it at its word. Important as I believe the antitrust laws to be, I believe it is more important still that there should be no room for anyone to doubt that when the Government makes a promise, it keeps it. Cf. Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 124 (dissenting opinion).
I would affirm the judgment.
[ Footnote 1 ] 62 Stat. 701, 18 U.S.C. 371.
[ Footnote 2 ] 26 Stat. 209, as amended, 15 U.S.C. 1.
[ Footnote 3 ] 32 Stat. 854, 904, 15 U.S.C. 32.
[ Footnote 4 ] 34 Stat. 798, 15 U.S.C. 33.
[ Footnote 5 ] The Acts with respect to which immunity from prosecution was given are the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. 1-27, 41-43, 301-327, the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1-7, and the antitrust provisions of the Wilson Tariff Act of 1894, 73-76, 28 Stat. 509, 570, as amended, 15 U.S.C. 8-11.
[ Footnote 6 ] See also the identical immunity provisions in the Commerce and Labor Act of February 14, 1903, 6, 32 Stat. 825, 828, incorporating by reference Compulsory Testimony Amendment of 1893 to the Interstate Commerce Act, 27 Stat. 443, 49 U.S.C. 46, and in the Elkins Amendment to the Interstate Commerce Act, Act of February 19, 1903, 3, 32 Stat. 847, 848, 49 U.S.C. 41-43.
[ Footnote 7 ] 142 F., at 826.
[ Footnote 8 ] Message of the President, H. R. Doc. No. 706, 59th Cong., 1st Sess., p. 2.
[ Footnote 9 ] 40 Cong. Rec. 8738.
[ Footnote 10 ] 40 Cong. Rec. 7657 (emphasis supplied).
[ Footnote 11 ] I agree with the Court that Congress in the 1906 statute did not "manifest any intent to enlarge the reach of the immunity provision of the Act of February 25, 1903, to include nonjudicial proceedings." Ante, p. 104. But the Act of 1903, as pointed out above, clearly applied to nonjudicial proceedings without any enlargement; it was never limited to judicial "proceedings," but granted complete immunity to witnesses who testified before governmental agencies other than those that could be called judicial.
[ Footnote 12 ] 27 Stat. 443, 49 U.S.C. 46.
[ Footnote 13 ] 48 Stat. 74, 87, 15 U.S.C. 77v (c).
[ Footnote 14 ] 49 Stat. 803, 832, 15 U.S.C. 79r.
[ Footnote 15 ] 49 Stat. 543, 550, 49 U.S.C. 305 (d).
[ Footnote 16 ] 52 Stat. 1060, 1065, 29 U.S.C. 209.
[ Footnote 17 ] See 36 Cong. Rec. 411-419. The provision was not debated in the Senate. See id., 989-990.
[ Footnote 18 ] Compare Ullmann v. United States, 350 U.S. 422, 440 (dissenting opinion).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.
I am inclined to construe this Immunity Act more in harmony with its literal language than is the Court; [377 U.S. 95, 116] and the reasons I do so are in part those stated by Mr. JUSTICE BLACK and in part the nature of the modern congressional committee. The trial-nature of the modern investigating committee argues strongly for a construction of this Act that gives immunity to one subjected to scrutiny and probing under the full glare of today's hearing methods.
Congressional investigations as they have evolved, are in practice "proceedings" of a grave nature so far as individual liberties are concerned. Not all committee hearings are "trials" of the witness; not all committee hearings are televised or broadcast; and so far as appears this witness was not subjected to any such ordeal. 1 But the problem with which we deal concerns not a particular committee nor a particular hearing but the generalized meaning of "proceeding" as used in the Act of February 25, 1903.
Courts cannot enjoin a committee from questioning a witness anymore than they can enjoin passage of a palpably unconstitutional bill. See Nelson v. United States, 93 U.S. App. D.C. 14, 208 F.2d 505. But courts, knowing the manner in which committees often operate, are properly alert either in denying legal effect to what has been done or in taking other steps protective of the rights of the accused. 2 See Nelson v. United States, 93 U.S. App. D.C., at 22, 208 F.2d, at 513. That is one reason why I would not import any ambiguities into this Immunity Act to the disadvantage of the accused.
The present investigation was in my view a "proceeding, suit, or prosecution" under the antitrust laws within [377 U.S. 95, 117] the meaning of the Act of February 25, 1903. The House Committee before which Welden testified was trenching on the same ground as the present antitrust prosecution. Its power to proceed derived of course from the Legislative Reorganization Act of 1946, 60 Stat. 812, the Rules and Regulations of the House, or a Special Resolution. The power to investigate extends to the manner in which laws are being administered and to the need for new laws. Watkins v. United States, 354 U.S. 178, 187 . The questions put by the House Committee were allowable, as they clearly were, only because they pertained to the manner in which the antitrust laws were operating or to the need for more effective laws. They were therefore "under" the antitrust laws.
We have repeatedly said that a congressional investigation which exposes for exposure's sake or which is "conducted solely for the personal aggrandizement of the investigators or to `punish' those investigated is indefensible." Watkins v. United States, 354 U.S., at 187 . Congress is not a law enforcement agency; that power is entrusted to the Executive. Congress is not a trial agency; that power is entrusted to the Judiciary. Some elements of a "fair" hearing are provided by Committee Rules (Yellin v. United States, 374 U.S. 109 ); some by constitutional requirements. By reason of the First Amendment Congress, being unable to abridge freedom of speech or freedom of the press, may not probe into what a witness reads (cf. United States v. Rumely, 345 U.S. 41 ), or why a publisher chose one editorial policy rather than another. Since by reason of the First Amendment Congress may make no law "prohibiting the free exercise" of religion, it may not enter the field through investigation and probe the minds of witnesses as to whether they go to church or to the confessional regularly, why they chose this church rather than that one, etc. By reason of the Self-Incrimination Clause of the Fifth Amendment, witnesses [377 U.S. 95, 118] may refuse to answer certain questions. See Quinn v. United States, 349 U.S. 155 ; Emspak v. United States, 349 U.S. 190 ; Bart v. United States, 349 U.S. 219 .
There are other limitations. "The Senate, for instance, could not compel a witness to testify in a Senate investigation whose sole and avowed purpose was to determine whether a particular federal official should be impeached, since only the House can impeach. The House could not force a witness to testify in a House investigation whose sole and avowed purpose was to decide the guilt of a person already impeached, or to determine whether or not a treaty should be ratified, since the Constitution entrusts these functions to the Senate. Neither House could conduct an investigation for the sole and avowed purpose of determining whether an official of the State of New York should be impeached, since that determination is reserved to the Legislature of that State." Snee, Televising Congressional Hearings, 42 Geo. L. J. 1, 9 (1953).
In these and other related ways, congressional committees are fenced in. Yet in the view of some of us the tendency has been to trench on First Amendment rights. See Braden v. United States, 365 U.S. 431 ; Wilkinson v. United States, 365 U.S. 399 ; Barenblatt v. United States, 360 U.S. 109 ; Gibson v. Florida Legislative Comm., 372 U.S. 539 . There was a time when a committee, knowing that a witness would not answer a question by reason of the Fifth Amendment, would not put the question to him. Today, witnesses who invoke the Fifth Amendment at the threshold have been minutely examined, apparently to see how many times they can be forced to invoke it. 3 Hearings have indeed often become a spectacle, 4 [377 U.S. 95, 119] some of the reasons being succinctly stated by the experienced Chairman of the Senate Committee on Government Operations, and head of the Permanent Committee on Investigations, Senator McClellan of Arkansas:
Some may see wisdom in this modern kind of "trial by committee," so to speak, with committees and prosecutors competing for victims. But the more I see of the awesome power of government to ruin people, to drive them from public life, to brand them forever as undesirable, the deeper I feel that protective measures are needed. I speak now not of constitutional power, but of the manner in which a statute should be read. I therefore incline to construe the Immunity Act freely to hold that he who runs the gantlet of a committee cannot be "tried" again.
[ Footnote 1 ] Respondent's testimony before the Committee appears in Hearings, Special Subcommittee of the House Select Committee on Small Business, 86th Cong., 2d Sess., pursuant to H. Res. 51, Pt. IV, pp. 665-700.
[ Footnote 2 ] For analogous instances of the alertness of the Court to protect an accused against the effect of pretrial publicity, see Irvin v. Dowd, 366 U.S. 717 ; Rideau v. Louisiana, 373 U.S. 723 .
[ Footnote 3 ] See Hearings before Senate Committee on Rules and Administration on Financial or Business Interests of Officers or Employees of the Senate, 88th Cong., 1st and 2d Sess., pp. 1337-1363 (Robert G. Baker); Hearings before Senate Select Committee on Improper [377 U.S. 95, 119] Activities in the Labor or Management Field, 85th Cong., 1st Sess., pp. 1511-1578, 1654-1684, 2038-2047, 2374-2405 (Dave Beck); Beck v. Washington, 369 U.S. 541, 583 -587 (dissenting opinion).
[ Footnote 4 ] Barth, Government by Investigation (1955), p. 81; Rogge, The First and the Fifth (1960), p. 204; American Bar Association, Report on Congressional Investigations (1954).
[ Footnote 5 ] Metropolitan Broadcasting, "Opinion in the Capital," Interview with Senator John McClellan, March 1, 1964. For a like defense of televised hearings see Senator Kefauver, 97 Cong. Rec. 9777 et seq.
[ Footnote 6 ] Snee, Televising Congressional Hearings, 42 Geo. L. J. 1, 2-3 (1953).
[ Footnote 7 ] White House Press Release, as quoted by Chicago Daily News, June 27, 1951, p. 49, col. 5, and quoted in Snee, supra, note 6, at 2.
Congressman Magee said in 97 Cong. Rec. A1145: ". . . there is no more reason for televising crime investigations than there is in televising criminal trials. Of necessity, many of our criminal cases develop lurid and obscene testimony. Some of it is unfit to put in public print. Certainly it is unfit to go out over the air waves. Many witnesses would despair at the thought of testifying when they were being viewed by television. It is bad enough for a timid witness to face a small courtroom of spectators; but it would be far worse if that person knew that he or she was being spied upon by television addicts all over the Nation. Certainly it would not be conducive to clear thought or expression. I cannot feel that the courts will ever force witnesses to subject themselves to this needless procedure. To me the whole idea is inane and repulsive. It would bring the Congress to a new low level in public esteem. The dignity of the courtroom would become only a memory while its sacred portals became a testing ground for the future Faye Emersons and Jimmie Durantes." And see Gossett, Justice and TV, 38 A. B. A. J. 15 (1952); Yesawich, Televising & Broadcasting Trials, 37 Cornell L. Q. 701 (1952); Arnold, Mob Justice and Television, 12 Fed. Com. B. J. 4 (1951); Klots, Trial by Television, Harper's, October 1951, 90; Report of the Special Committee on Televising and Broadcasting, 77 Rep. A. B. A., p. 607 et seq. (1952).
Telecasting and broadcasting of committee hearings are banned by the House. See 98 Cong. Rec. 1334-1335, 1443, 1567-1571, 1689-1691, 1949-1952, 5394-5395, A1152-A1153, A1176, A1180, A1196, A1227; 108 Cong. Rec. 267-269.
[ Footnote 8 ] Op. cit., supra, note 4, at 82.
[ Footnote 9 ] Id., at 83.
[ Footnote 10 ] When Men Fear to Speak, Freedom Withers on the Vine, Address, Indiana B'nai B'rith Convention, Sept. 27, 1953. See Delaney v. United States, 199 F.2d 107, 113, where the Court of Appeals in setting aside a conviction said:
[ Footnote 11 ] 97 Cong. Rec. 9768. [377 U.S. 95, 124]