Harry Sacher v. United States

also judgment art. court concluded peal, vacates the but jurisdiction was without authorize district case to the remands the findings which were- allowance of cancelled claims appropriate for court Drainage Appeals. Board of Everglades not considered Kelley v. fact. [1943, 63 S.Ct. disturbing District find for ac- no basis ; States 87 L.Ed. United 1485] tion of the District Court. Cir., 1952, F.2d Trubow, v. Affirmed. 161; v. Morse-Starrett Steccone Co., Cir., 191 F.2d Products Maneja, Agr. 197; Co. v. Waialua Cir., 1949, certiorari 178 F.2d denied, 70 S.Ct. 339 U.S. 94 L.Ed. 1344.” contempt

I order should think the

affirmed.

Harry SACHER, Appellant, v. America,

UNITED STATES of Appellee. No. 13302. Appeals Court of United States District of Columbia Circuit. Appellant, JACOBS, Donald H. Argued 23,1957. Oct. v. 31,1958. Decided Jan. WATSON, Commissioner

Robert C. Patents, Appellee. No. 13902. Appeals

United States Court District of Columbia Circuit.

Argued Feb. 20, 1958.

Decided Feb. Jacobs, appellant, pro H.

Mr. Donald

se. Attorney, George Roeming, C. Office,with whom Mr. Clar-

U. S. Patent Solicitor, Moore, Patent U. S. W. ence brief, appellee. Office, was on Bazelon, Danaher and Bas- Before Judges.

tían, Circuit CURIAM.

PER brought pat- Appellant this suit navigation po- electronic an

ent sition-finding system. The District with the examiner concurred

Court Appeals that the claims Board unpatentable prior over here issue perti were found inquiry.2 nent to a then

Appellant was to six months sentenced imprisonment There and $1000 fine. after affirmed this court the District petition for certiorari Court3 and while a pending Supreme Court, the in the case of Watkins v. United States4 Shortly thereafter, the Su decided. granted preme re Court certiorari 5 manded the case for reconsider instant light ation in v. United Watkins City, Taylor, York New Telford Mr. appeal This court States. then set the Washington, Rein, Mr. David whom reargument banc, for before the court en appellant. C., brief for D. and heard received additional briefs Atty., Hitz, U. S. William Asst. Mr. arguments. Gasch, U. S. Messrs. whom Oliver with Atty., appellant raises four On remand issues Carroll, D. Lane John Lewis which he contends controlled Jr., Rhynedance, S.U. Asst. D. Harold (1) case: indictment failed brief, appellee. Attys., were on offense; allege essential elements of infringed (2) First Amend- privacy; (3) ment Senate 366, Resolution subcommittee, which established the invalid; (4) indisputably clear to Judge, and Chief Before Edgerton, inquiry. Miller, Prettyman, Baze- K. Wilbur Sufficiency I. Indictment. Danaher, Fahy, Washington, Bas- lon, sitting Judges, Burger, Circuit tían conceding While “Wat en banc. directly not, course, kins case does deal sufficiency indictment,” with the appellant Judge. BURGER, Circuit urges indictment was con Harry stitutionally Appellant Sacher was convicted did insufficient because it under three count Court “the the District recite nature matter un charged him viola indictment which the matter in der under having quiry 192 2 § tion of U.S.C.A. was within subcommittee’s questions1 delegated authority.” of a three answer view fused to our noth implied Committee opin- Senate subcommittee said the Watkins Sacher, you, timony a mem- 1. 1: “Are had Count and said be “lied when Party, Security] U.S.A.?” of the Communist [Internal before the ber testified you mem- ever been a 2: “Have and on other Count occasions.” Party Subsequently affidavits, Communist ber he executed one of States?” was used Sacher a motion United you you now or have “Are 3: trial for the for a new defendant Eliza- Lawyers’ Flynn, Sec- a member been who was convicted under ever beth Act, 2385, U.S.A.?” § of the Communist 18 in a tion U.S.O.A. trial Smith had Matusow been a announced 2. The against her. recantation. Matusow 3. U.S.App.D.C. after occasions his defec- several On 240 F.2d Party prior from the Communist 46. appearance, Har- of Sacher’s the time 1173, 1 354 U.S. 77 S.Ct L.Ed.2d 4. appeared vey had before the 1273. Security Subcommittee and de- Internal 1396, 1 77 S.Ct. L.Ed.2d infiltration activities. 354 U.S. Communist scribed Early Matusow recanted his tes- suggests U.S.App.D.C. to inter- lied.” intended ion pret the Court F. right Fed.R.Crim.P., U.S.C.A., 7c, appellant’s 2d Rule 52. We hold that say require under 2 to refuse an indictment whether he is a member greater of the au- of details U.S.C.A. 192 recite is not § right inquire thority scope see than the of the Senate to holding conspiracy just our into the no reason alter earlier described and appellant’s any, connection, know is sufficient.6 indictment groups provided with Communist action Infringement First Amendment. II. might pri the answer shed mary inquiry. urges Even if we were to as Appellant “even if right engage sume that Com pertinent,” member information as to Party right activity protect is ship in or the Amendment, ed which of First “Lawyers’ thereof, “was alto Section” right, concede, course do that gether un remote from the too being absolute, yield superior to a must inquiry to recantation] der [the public need, presented such as here. protected justify free an invasion of his Nothing sug opinion in the Watkins doms,” First Amendment. The under the gests prior holding that our re this Supreme has that where indicated Court spect investigative should not be to. powers adhered the exercise of the Congress with the comes into conflict Validity III. of Senate Resolution 366. expression (pre freedom of and prosecution contempt In a for association, sumably) freedom Congress under U.S.C.A. such as § congressional clarity for in the Res need presented here, resolution of the becomes more acute. dele olution gation “The parent body must show that was there power committee must legislative purpose valid in its charter.” revealed clearly shown, Unless this is the courts cannot Rumely, 1953, v. United States U.S. pur determine whether the was 41, 73 97 L.Ed. cited in legislative purpose suant to a valid opinion Watkins. The Watkins [354 whether the was within au emphasizes 77 S.Ct. also 1185] thority delegated by parent body. inquiries that “not all such im [which The Watkins case dealt with resolution pinge on First freedoms] Supreme criticized vagueness. Court its are barred” and in are not dealing We are with a dif legislative unless “unrelated valid ferent resolution. Senate Resolution 366 purpose.” plain is It the courts rely provides so far as we on it fol presence pur must find the of a valid lows: lawmaking justify pose related to “compelled Congress “Resolved, disclosure.” is not That the Committee on permitted only expose Judiciary, any duly embarrass. authorized carefully thereof, considered this contention subcommittee is authorized opinion, saying, complete in our earlier “It is and directed to make a continuing study imagine ‘overriding investigation difficult to a clearer public (1) administration, than an operation, interest’ into an alleged conspiracy to discredit the con enforcement of the Internal Se- gressional judicial processes by curity 1950; (2) sub Act of the adminis- orning by procuring tration, operation, witnesses and recan and enforcement testimony upon relating espionage, tations Con of other laws gress sabotage, protection courts have theretofore and the previously opinion This court considered suf In the Watkins the Court em- ficiency phasized the indictment in connection the indictment point past per- with Saeher’s now abandoned related to activities of other sons, indictment failed to recite his failure not of the witness. U.S.App. answer “willful.” was D.C. 240 F.2d 46. him; correctly points security out that United internal * * * case, sustain a conviction the Watkins States made it must portion the resolu- Bare recital clear to the witness. it tion discloses that Ap Subject Intended Matter: at the as was directed criticism same pellant’s contention under which Resolution House sufficiently were not even to be describes intended questioned. It instead, investigation inquiry, but to the Matusow the com- “the kind of ap- in were intended to be to an make.” When mittee was directed quiry relating, it, “a describes pellant before the * * * barring measure Communists Security U.S.C. Internal Act legislation; in the Federal courts.” seq., recent A. 781 et § novel, issue essen many respects en- The determination and its tially of which of fact the resolution forcement, laws was one of related and that entirely upon depends record in Con- and concern of acute interest gress, case. and the Branch the Executive of en-

public. or lack The enforcement As with almost examination in various studied could be forcement or witness whether court before in checking including ways, the truth committee, in record a main find this conspiracies reports to frus- falsity readily thread examination which is by sub- law and its enforcement digressions. trate the followed, also occasional and orning inquiries are im- witnesses. Such digression from that main One was made amending improving portant laws. and in original transcript thread. In the resolution was the We are satisfied that valid, thread, in- which is Matusow main the investigation into the pages quiry, runs 18 the Count before by was authorized recantation During Matusow question ¿he 1 course asked. was resolution, Matusow the and the pages 18 witness resisted of those the legisla- pursuant quiry to the valid was questions, various raised the issue plainly purpose revealed the res- exchanges tive the and with after gave gen- Chairman, covering olution. answers with Matusow with eral his contacts and Questions. Pertinency of IY. The the Appellant Communist leaders. contends question 1 was asked in the Count the urged by argument The final digression. context of this First, three-pronged. con he Sacher is Shortly question, questions not the even before the 1 were Count tends digressed single question pertinent sub- Matusow into intended to be to the the controlling legislation perti inquiry, be intended but were subject,8 Party altogether members nent different admission Communist to an However, practice held to have known to in Federal courts. and he be so cannot conclusively pertinent questions the Matu record were shows that urges objections appellant, he result of digression sow Second promptly pertinent questions “excursion” was were not fact questions inquiry, he line of cannot and the and terminated brought they lied back “whether Matusow to have known that were be held argues colloquy Finally, when he testified.” The between pertinent. that even he appellant indisputably assuming questions and intended to Chairman were digression inquiry, appellant to Matusow informed questions assuming approved were was the Chairman not further inquiry, he his counsel to Matusow directed ask fact still, “lay question order to two fac Count aware these he not this,” added) (emphasis put were to foundation time the tors at the scope argues, beyond ject, Viz., the admission of Communists powers. Courts, of the subcommittee’s which sub- in Federal sibly do from the Matusow i.e., “whether into —I ques the answer is—dedicated know what Count In this context lied.”9 Party.” following, Shortly the Communist asked. question was asked. Count indisputably, shows, record Thus the plainly following re- covered the Count those generally lated Chairman’s statement 1 and 2 related Counts leaders, matter, Party “whether announced with Communist contacts point gatherings Matusow lied” its tim- Com- both where attendance colloquy present, which Party in relation to members immediately Similarly gatherings appel- preceded including it. such succeeding questions professional were in that same explained confer- lant similarly meetings context, brief de- after clients ences or Consequently, fending inquiries specifically we hold that “excursion.” being involved here were intended named Communist would throw to elicit answers which to most of these leaders. As members or inquiry; recantation re- Matusow said inquiry, and was to context he was asked call. inquiry, other question. were intended to be and to questions, indictment As to each of the highly pertinent. fact protested others, appellant as well as alleged pertinence lack of Appellant Pertinence in Fact: “political inquiry about relevance of argues Party member that Communist emphatical repeatedly beliefs.” He shown, ship, “could conceiv even ly equated inquiries about Communist light ably any inquiry have shed “political” Party membership to beliefs subcommittee.” do not before We professional As to associations.10 for moment. needs no this It concede question the Chairman ex Count discussion to it was to see that plained : inquiry find whether to out question any appellant “This related to had connection with a your defending anyone conspiracy in court. to induce Matu Communist your appellant The was related to be- Whether sow recant.11 to ing being present logically of a member of one a se a Communist presumably, group designed lawyers, of osten- to ries of disclose objected digression say- 9. Appellant unwilling say appellant’s to arc to We membership Party, he had understood he was called to if the Communist testify member, “political” activity Matusow’s recantation is a is ho argued simple he had demonstrated of exercise of asso- or a protected Congressional Federal Court that Matusow lied. In ciation repeated quiry the course of Ms statement Indeed in in all circumstances. pronouncements repeated lied” three times that “Matusow ing: conclud- of Government, of all branches we three “Get there not be made here an at- be free to even were would not do so tempt prejudice inclined, to the determination which we are not. Par- we only by Judge Dimoek, peo- ticipation but the work the Communist ple simple Party, U.S.A., United States to whether is not a political flexing lied when he one’s ideas and be- testified * * * Flynn trial. do- liefs. ing a disservice to the administration pointed original opin- in our out justice. ion that when called reports linking (1) “Senator That McClellan. is what we it had Sacher Sacher trying pro- Party, reports (2) are find to out. Now let us Communist with the ceed, Counsel, proper linking Mr. and ask the the Communist with a con- lay bring spiracy the foundation this. about Matusow’s re- you, reports Sacher, cantation, (3) linking “Mr. Sourwine. Are Sacher as lawyers party a member one to this con- (Emphasis added.) spiracy. U.S.A.?” explicitness tify connection, any, himself with more if with the nature conspiracy. his preliminary are than concerning Questions background. or for legislative inquiry do not In a reliability possible of wit- bias or the pattern direct find the conventional ness their face and are also examination cross-examina followed any explanation is called for it need pleadings which tion. There are no explicit in terms no more than proof narrow toward serve to i.e., reliability, are for are to test bias or specific issues framed in advance. cross-examination. prime purpose must be posi- Appellant had fixed his announced get prove pre information than rather testi- “that when he Matusow lied viously claims. The witness asserted refusing Flynn fied” in the case. given making a state wide latitude he said answer the Count framing. necessary of his A own ment preliminary concerning “an this matter me witness, identify Party membership] is not [Communist general residence, occupation, back his anything with which this give ground, etc., for the record concerned, committee is is not rele- meaning testimony for members may properly vant full entire Con committee made of me.” gress, few of whom ever see the wit so identified The Chairman was to ac nesses. Once witness is not bound “background” statement, already qualified cept he had these concerning interrogation explained questions, main as to the * * “* covering objections: you place, earlier are matter takes phase facts, events, A on” etc. third to cross-examination state central may pertinent, made to committee.12 then become ments background questions which like the immediately In his before statement phase pertinent on their This third face. immediately ques- after testing reliability process is the referring tion, appellant the Matu- bias or his objection sow His took funda- prejudice. mental right issue with the subcommittee’s possible his The Watkins case dealt with bias test answers falling phase in or the main the second cross-examination as to connection alleged subject ques- conspiracy matter. The indictment with the Communist having study. phase appellant’s tions within the Evaluation of fall third under “testing” testimony previous- highly influ- do with answers entire would be of ly given. Certainly he no would serious- was a Com- one enced the fact that suggest ly was, munist, the must if best indeed why explain wants a iden- crucial it witness to evidence on this matter key appellant’s subcommittee, opening of mind at state with A respect pertinency investigation, dealing in with the disclosed as truth July 1956) falsity testimony given by pre-Watkins (filed brief one * ** Harvey stated, had been Matusow. “Once it es- “ * * * questions put ap- appellant had no informa- tablished that to the pellant subject give the subcommittee on the which formed the mat- tion it, e., question must be under before i. ter of the indictment tested for against leading pertinency as [the to Matusow’s re- Matu- circumstances appellant obviously subject cantation, sow] matter as stated should context, In this Chairman. have been excused. political appellant’s against ques- probing into “Tested this criterion the beliefs clearly pertinent had no conceivable rel- tions were not since affiliations to the matter under in- the answer conceivably could not evance (P. 23.) light quiry.” shed have' on the * point pre- appellant’s At another before the subcommittee scope 18, 19, 20; emphasis said, (Pp. brief he added in “The investigation ‘question excerpts.) under above quiry’ was defined Chairman knowledge interpret opin- If witness. matter.13 To first hand the Watkins organiza- establishing subjective purely party or ion as of a he was member legislative place conspired to dis- reported scope test would to have investigation largely, entirely, Communists former credit disaffected appeared the within who witnesses control of the While witness. might, be vital would it we think this wit- did, grasp ness by pertinency that fact. to know disclose his Subcommittee responses, his own who sat a witness Nothing plainer one than that mute before a committee in the face of ques- purposes indictment explanations all of “connective reasons” reliability ap- tions was pellant’s test the place beyond would himself reach concerning his relation- answers compulsory process pur- practical for all ship Matusow recantation poses. doWe not think the Watkins suspected con- connection opinion implied result, such absurd spiracy prosecution of Com- discredit nullifying power sub silentio com- all view this members. In pel testimony. Such a test would make we have no doubt contempt judge a defendant in a case the pertinent to the Matu- asked inwere fact guilt. of his own Moreover it would re- inquiry, sow and we hold. legislative investigations move control of Appellant’s Awareness Intended Congress place from the control Subject Matter and Pertinence: We the witnesses. case, reach of Sacher’s last the heart rationally must, The test of even if which is questions the contention therefore, objective be an test these asked reference to were terms: on the whole can it be evidence inquiry, he was not aware said, beyond doubt, reasonable that a pertinent to that reasonable inman the situation We have were in- seen that the particular witness would have known the Matusow in- tended to asked was to the sub- quiry, and were fact thereto. inquiry? under Pertinence But, case, the Watkins must also specific question sense means Sacher was aware of these posed contemplates an answer which will two elements the time the shed some quiry. under in- posed. theAt threshold we must mind, With this test in we turn solve the of how awareness is whether knew or should have to be demonstrated. it be Must shown known that the experienced the witness himself questions perti the were intended to be processes cerebral which included con inquiry, nent was Matusow the and that i.e., element, sciousness of that he questions the were in fact to actually aware, was indeed or is it suffi inquiry that and the manner in which person that cient show a reasonable pertinent. in same would the circumstances have latter, course, application been so aware? The Watkins case to this proving following the historic standard situation arises out of criminal the opinion intent. statement [354 U.S. 77 S.Ct. 1193]: expressly stating, While not we opinion contemplates subject think the Watkins “Unless has matter pertinency demonstration been made to with undis- clarity putable clarity, duty must be of it such a reasonable is the investigative person body, upon objection in the situation witness grounds would have understood the connection the witness subject pertinency, between the and the state for the record (1957). (1957); Cf. 43 Va.L.Rev. 803 26 Geo.Wash.L.Rev. 98 thesis, accept appellant’s subject In inquiry at order to under reasonably he could be held to not time manner and the pertinency, aware of we must believe propounded lawyer experienced meaningful, ex- that an could To be thereto. planation Party mem- understand that what Communist must describe important judging bership topic inquiry con- and the would testimony reasoning whereby pre- and the credi- the value bility nective testify it.” called to a witness asked relate cise alleged part, any, added.) his (Emphasis if in an Communist justice. conspiracy to subvert words, the wit- it unless is clear In other explana- knows, an he is entitled to ness these circumstances think is, tion of what including explanations, the Chairman’s pertinent. questions are how statement, cross- “You are * * * examination and that is what already bar that the shown haveWe proceeding do,” would committee is ended, and “excursion” was admission explanation constitute a even sufficient back thread of layman; addressed to if addressed case, questions were when Matusow thirty litigation lawyer of a seasoned posed. Appellant’s after the first words years’ actually super- experience, was it he understood were that given “for fluous. Nevertheless testify Matu- about the he was called to fully the criteria record” meets prepared he and was recantation sow case. If laid down concerning partici- his answer pation witness pertinency ever be in doubt about the could matter, connection of the instant going simply discuss he but lied Matusow into “whether “beliefs, religious, political, economic his when he and whether there testified” he Thus he demonstrated or social.” conspiracy to discredit Communist case, knew Party prosecution Communist mem- he did not think claimed but By bers, is not that man. mem- as to his bership véry given answers and statements doing it. In so testimony he for- and which made his taking the risks appellant showed was briefs, appellant mally argued in his refusing Of inherent to answer. explanation no could demonstrated by appel- we are foreclosed course possibly him or satisfied added to have he could no see lant’s statement knowledge.14 relationship Com- between legiti- any, may Party affiliation, frustrate the A enough by shutting process recantation. It mate explanation more purpose seen than that he should have mind our stuffing relationship pertinency. his ears with hence do so Chairman, compulsion, categorically, anybody make else’s 14. “I refuse sion any any my poli- religious, political, beliefs, my beliefs, disclosure discuss economic, social, past tical, religious, economic, I not do so on or social. do your ground present, to answer I I decline of the Fifth Amendment. and or question.” with it is inconsistent because do so compelled appears any dignity to man to not be that Sacher We note economic, said, political, religious, entirely what he disclose have meant any social, re- he abandoned this other views. And I later a few sentences ground inquiry “political” spectfully views that an me submit revealed and say pertinent concerning Chair not “I will matter is this to the extent: any anything been a member which this committee I never that have concerned, organization I be a believed to and relevant is is may properly inquiry of the forceable made of or advocate be teacher added.) (Emphasis of the Government overthrow violent me.” (Emphasis your added.) not, eompul- States.” “I shall the United Also hearing nation; explanation. the First was not. prevent Amendment cotton any The plain use and clear that the First Amendment And where it perti- grasp supplying “obviously shield one from criminating man would reasonable explana- nency information himself” without of the perversion for courts would a nonsense be Constitu- be sheer tion it would long must, tion, say needless so the Fifth less someone as none mechanically perver- recorded playing stands. Amendment Should a long recital sion message, parrot a the witness be sanctioned it would repeated he before shows use of evidence the First as of that which the haven from incrimination would “con- knows. taminate” that Amendment. Mere re- responses appellant’s make holdWe cital of demonstrates the these factors his actual awareness manifest folly trying adjust constitutional Matusow recantation shifting interpretation to meet re- matter to segments opinion public breezes fully aware of the lated and he was prevailing modes of witnesses before specific manner in which those legislative committees. subject. Apart to that Appellant’s conviction is mind, appellant’s from state of actual reasonably should so situated Affirmed. not fail to have have known FAHY, Judge, Circuit whom known asked these EDGERTON, Judge, Chief intending to secure informa- BAZELON, Judge, join (dis- Circuit bearing tion bearing on Matusow senting) . reliability on his own as a wit- guidance The now afforded Wat witness should un- ness such have States, kins v. United 354 U.S. derstood were there- that the 1 L.Ed.2d subject. fore available to the two-member subcommit argues dissenting opinion The hearing tee when it conducted the out slow, however, should “[t]he courts which this case arose. In Watkins the person ‘compelled’ hold that a shall be Supreme objection upon Court held that objection publicly over his ‘to be wit- by a witness nonperti because of the by supplying ness himself’ ob- nency aof viously self-incriminating information, must “with indis particularly protected by when the area putable clarity,” investigative else the threatened, the First Amendment body must state for the record the sub though objection he does rest his on then under and the manner the Fifth.” in which simple thereto, short answer to description with a topic every witness who thinks reasoning and the connective whereby the may precise questions answer will incriminate him has relate to Watkins, it. protection supra, pages absolute in the Fifth 214-215, U.S. at 77 S. Unconsciously, perhaps, Amendment. Ct. 1173. The pres subcommittee in the “forcing” shrinks authority dissent a wit ent had case to take sworn tes timony only ness to raise the Fifth upon be Amendment which had may people designated cause some draw dark infer been parent Sub years ences from its use. Over recent committee Security, Internal namely, frequent employment “Strategy of the Fifth and Tactics of World Com has, some, Significance in the minds of munism: The of the Matu brought “disrepute.” into it The Fifth Concededly sow Case.” it could en plainly properly large change inq subject or —and —was of its as a shield uiry.1 intended self inerimi- 366, Cong., Sess., 1. S.Res. 81st 2d tee of the Senate Committee on the Judi- Security ciary which the Internal Subcommit- provides, authority, owes its 838 pro- judicial though protesting, how mittee desired to know Appellant, at times by improved should be should sub cedures until asked answered all Judge judgment what had ever await on Dimock’s whether he committee counsel expressed transpired respect Matusow had prison He served a sentence. Flynn (in appellant legislative purpose of and the trial doubt as adding engaged), this line Thereupon had been question. the Chairman this inquired doing questioning He of was a disservice counsel. of subcommittee justice. The presence administration responded witness fixing said, legislation Chairman is what purpose then “That for the trying pro- us practice to find out. Now let standards for additional ceed, proper Counsel, and ask the consid under courts was law federal lay germane for the foundation to con and that it was eration legislation this."4 inquire of such sideration involving prac circumstances majority into court, The char- while by Com acterizing of law federal courts single having tice question” “a by “digressed defend Com munists or those who subject into the in legislation He he believed the controlling munists. said admission of Com- quiries have in the case bear Matusow munist members to 5 legislative problem ing upon now courts,” “that Federal main conclude that the pending This the committee.”2 before inquiry persisted thread of subject departure from the Chairman, by a clear apparently the statement au which the quoted, last Matusow returned to the testimony. The Chair subject. Surely thorized to take the witness would not lay thought “should indisputable man said he counsel have understood with the so asking by a for that clarity required by foundation first On the Watkins. member of the contrary, reasonably if he is a Com it seems clear been, if he has ever point was not return- Chairman at ing per forth.”3 witness was then The to the Matusow but was re- understanding

mitted to state peating in what he had said substance interrogated concerning regard digression he was to be from that recantation, you subject, namely, “The Chair thinks political and associations lay into beliefs foundation for that first should a diversionary, com- asking if the a witness if is member of majority quiry; “A members “business” for trans- duly committee, [Judiciary] majority author- of which there must be action thereof, present, shall consti- ized subcommittee Subcommittee there quorum February 21, 1955, for the transaction when sub- tute on except business, number that a lesser here under involved committee, Hearings such be fixed See established. Before quorum subcommittee, Security shall constitute on Internal Subcommittee administering purpose Judiciary, oaths Committee the Senate testimony.” taking Case,” Significance sworn of the Matusow “The Cong.Rec. (1950). Sess., pt. Cong., 1-3; pt. 1, See 16872 also 1st at 84th Cong., Sess., Cong. (1955). 2d 81st S.Res. at 827-40 S.Rep. (1950); 82d Ree. Cong., Hearings, pt. 10, (1955). 2. February (1950). On 1st Sess. appointed 7, 1955, Ibid. nine Senators were 3. 9.) (G.Ex. No. Subcommittee. On at 836. Id. April the Subcommittee au- General, taking testimony Solicitor his memoran of sworn thorized Supreme op (G.Ex. 6.) dum filed with the member. No. Court one certiorari, appeared April 19, posing refers When “digression” present. practicing only law aas two members were Opposi authority Matusow matter. Brief under S.Res. 366 was Their Certiorari, pp. 14-16, administering to Petition and tak- oaths limited States, They testimony. v. United Sacher could not sworn change 1396, 1 L.Ed.2d 1533. establish 839 single Party, the inquiry involving ever the has 6 been, forth,” this, say and so help the foundation case. As to it is no being respect ferred to to the sub this court can itself now from conclude appraisal Com federal courts its own and im- nature them, plications munists or defend those who of the that the Matusow case subject Matusow case. were to that inquiry; witness at the time This with the na view consistent asked was “entitled ture of the ness, then asked the wit knowledge subject to have of the lawyer practicing in federal interrogation perti- which the is deemed was, question courts: you, “Are The first 9 subject nent.” And the knowl- Sacher, a member of the Com edge, course, must be the authorized Party, refusal to USA?”7 His inquiry. question answer this and which soon approach followed as he had been to whether ever Our the case is with con- Party, a member of the constitute the sciousness that a First Amendment problem bases counts of background, first and second lies in which situation, Rumely, indictment. The rests count third as United v. States upon refusal to answer the related U.S. L.Ed. question membership narrowly Law as to the courts will “construe yers’ describing Section of the Communist resolution the committee’s au- U.S.A., thority.” Moreover, declined to answer on “when First grounds previously per threatened, to the stated as tinency delegation relevancy power of an con committee cerning political clearly beliefs or affilia must be revealed char- its By reasoning tions. jection by perti- The Chairman answered this ob ter.”11 the same gen pointing nency to him out of the revealed duty, security delegation power eral when it came to the must be clear to the Congress country, try our testifying. for the to witness when he is The re- things expose quired clarity ferret out and these supplied per- is not when directly tinency relate explained to the national secu is then to the witness rity, nondelegated and “for that reason the Chair in terms aof proper thinks that and di you explana rects it.” answer This We have in mind also that our view of bearing pertinency tion did not have authority does affect case tendency advise witness that the Congress of the to obtain the informa- pertinent, or that sought. It does pertinent, subcommittee considered them Congress prevent ascertaining inquiry, to the Matusow voluntary facts from witnesses or pursue. subcommittee was authorized to other sources. slow, courts should be however, do examine person to hold that a shall pertinency “compelled” objection pub- the full au- over his parent thority Security licly Internal “to be a himself” obviously itself supplying Subcommittee under its own char- self-incriminat- ter, supra; pros- information, particularly n. 1 S.Res. for the when the requires before us protected ecution to area First Amendment Hearings, pt. 10, p. page Frankfurter, 6. 835. 354 U.S. at 77 S. page at 1194. Ct. 836. 7. Id. at page Id., 10. 77 S.Ct. at Id. at page 1184. States, v. United 9. Watkins 354 U.S. at 11. Ibid. 208-209, pages page 1190, 77 S.Ct. at concurring opinion and see of Mr. Justice being pertinent, threatened,12 though asked as is not rest were and were he does investigation. objection many pertinent, in to the Matusow Fifth. their could from is neces well believed stances Fifth He have reference to the might asked sary were immediate context that to indicate answers that the leg- entirely different Indi to the tend witness. incriminate the by by sought protected purpose subcom- vidual islative referred to to be values practice counsel, namely, Rights courts mittee Bill of should cause persons pen unnecessarily by federal defending Communists, courts of Communists not coerce subject about alty which a answers criminal law might publicly the two-member witness convict the hearing good conducting been au- had not citi unfaithfulness a standard testimony.13 by zenship fel a few of his thorized to take held all but strong need low some citizens. Unless requires ob information be (dis- Judge WASHINGTON, Circuit from particular manner tained in this senting) . think it should the witness himself we by as it thrusts Be that I main secured other means. think one may, courts follows from Watkins we think it was this: Watkins public convic- unless such self-condemna criminal should sanction the investigative body sought by answer person is who refuses tion of legislative subject upon respect clear First to a which touch ly body’s rights de- scope author within of that Amendment entirely ity, signed “public produce clear self-condemna- this is made and unless may Fahy’s witness, tion,” Judge phrase, unless witness to the refusing legislative author- to re crime clear convicted of spond. shown there ity, record be of the con- find on the framework We cannot within the responsibilities Con- fore the subcommittee stitutional clarity viewed, gress. this conviction I think should known with have So quired stand. cannot 12. That First and did not courts in federal to prevent clear, occurring. digression threatened Hampshire, Sweezy 3, state- v. New the Chairman’s State And as to an- 1 L.Ed.2d refusal 77 S.Ct. the witness’ ment after Bar, Konigsberg 1311; swer, v. was not related State 353 U.S. anyone 810; defending in court 1 L.Ed.2d witness to the present being of a Ass’n v. member Communications American to his but 382, 393, lawyers presumably Douds, group dedicated 70 S.Ct. 339 U.S. does suffice 94 L.Ed. to the Communist when the diversion eliminate 13. We have considered the views of the hearing and con- is read course of majority court that of this so read When as whole. sidered pertinent by the Chairman’s made statement, considered, the Chairman’s he was to the witness that statement' implying the wit- criticism of while * ** “subject cross-examination particular defending case ness pro- is what the committee and that reasonably court, have been Hearings, pt. ceeding 10, p. do.” thought to refer give We do not this statement rather of the diversion majority; attributed to it effect than preceded digression respect

Case Details

Case Name: Harry Sacher v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 31, 1958

Citation: 252 F.2d 828

Docket Number: 13302

Court Abbreviation: D.C. Cir.