FOR RELEASE ON DELlv~RY

I~n~~rrTY FROM PROSECUTION

VERSUS

PRIVILEGE AGAINST SELF-INCRIMINATION

ADDRESS

BY

HONORABLE HERBERT BOOylNELL JR

ATTORNEY Gr~rmRAL OF THE UIaTED STATES

Prepared for Delivery

Before

The Law Club of Chicago

Law Club

Chicago I1l1nois

Friday Evening November 6 1953

730 PM CST

The Fifth Amendment to the Federal Constitut10n provides that no

person shall be compelled in a criminal case to be a witness against

himself t1 The courts have construed this provision to mean that a

person may remain mute before a Congressional COmmittee a grand jury

or trial court if a criminal charge I no matter how remote may

possibly be asserted against him with respect to any matters as to

which he is questioned Subversives and criminals have been quick to

rely upon this provision which was uritten into our Constitution to

protect law-abiding citizens against tyranny and despotism

Many tormer federal employees and members of the armed services

holding key jobs have also refused to answer the $64 question about

their Communist affiliations The problem is a live one too before

universities and other private and public schools where professors

and teachers have claimed their privilege in refuSing to testify as to

their previous and present 83sociat1ons The abuses to which the conshy

stitutional privilege has been put by the long parade of witnesses sugshy

gests the desirability of reviewng the subject to determine whetller it

is possible to strike a fair balance between the Governments right to

obtain vital information and th0 1~diidualts right not to incriminate

himself

In discussing this important problem with you I plan first to

deal with the history of constitutional privilege and the exchange of

1umnlnity for it second the function of Congressional investigations

and how they as well as courts and grand juries have been thwarted by

resort to the privilege third pending proposals before Congress for

an exchange of immunity for privilege and my suggestions for improvement

of these proposals

The Fifth Amendment to the Federal Constitut10n provides that no

person shall be compelled in a criminal case to be a witness against

himself t1 The courts have construed this provision to mean that a

person may remain mute before a Congressional COmmittee a grand jury

or trial court if a criminal charge I no matter how remote may

possibly be asserted against him with respect to any matters as to

which he is questioned Subversives and criminals have been quick to

rely upon this provision which was uritten into our Constitution to

protect law-abiding citizens against tyranny and despotism

Many tormer federal employees and members of the armed services

holding key jobs have also refused to answer the $64 question about

their Communist affiliations The problem is a live one too before

universities and other private and public schools where professors

and teachers have claimed their privilege in refuSing to testify as to

their previous and present 83sociat1ons The abuses to which the conshy

stitutional privilege has been put by the long parade of witnesses sugshy

gests the desirability of reviewng the subject to determine whetller it

is possible to strike a fair balance between the Governments right to

obtain vital information and th0 1~diidualts right not to incriminate

himself

In discussing this important problem with you I plan first to

deal with the history of constitutional privilege and the exchange of

1umnlnity for it second the function of Congressional investigations

and how they as well as courts and grand juries have been thwarted by

resort to the privilege third pending proposals before Congress for

an exchange of immunity for privilege and my suggestions for improvement

of these proposals

First a few words about the history of the privle~e

The prlvilege aga~ft self-ircrimilation has deep roots ir earl~f

21g11sh historl The tyranny of Charles I dur1~G the ~ealS 1629 to

l61~O middot~n dealing with no~-middotmiddotconformists afd the Star Chamber proceedings

in which innocent persons were tortured into ronfession of crimes

whch they did not commit) engendered such hosttlity amo~G the people

that strong demands were made to er-d compulsot1 testimony as far back

~ 11 as

L lal~7 By early lc50 the privilege against self-i1criminat1oll was

so well established in the common law of ~~gland that it was rever

even thought necessary by an Erglish ParI tament to pass s act touch 51

ing the ma~ter

With this heritage it was ~ot surprising that the early settlers

in America fiercely r~s1sted attempts of the Governors af the Royal 3

provinces to resort to compulsory testimony for coerci~g confessions

By the time of the formation of the Union the principle that no

person could be compelled to be a witress against himself had become

fixed in the common law II It was regaxoded then 8S ow l as a protection

to the innocelt BS well as to the guilty ad an essential safeguard4

against unfourded nnd tyrannical prosecution

The privilege was not ircluded ir the Federal Constftut1ol as

originally adopted 3ubsequently it was placed in one of the group

of ten Amendments recommended to the States by the First COl1gress and

by them adopted Since then) all the States of the U~ton have included

the privileGe in their Constitutions except New Jersey and Iowa where 5

the principle prevails as ~~rt of tru~ commor law

During the development of the privilege against self-incrimination

there was experimentation with statutes granting immunity in exchange for

compulsory testimony In 1857 an act was passed by Congress granting a

complete legislative pardon for any fact or act as to which the witness 6

was required to testify- This provision of the bfll was amended five

years later when it was fOlmd to have worked greater evil than good

It was a Senator from Illinois Senator Turnbull by name who was

largely responsible for its amenrunent In debate Senator Turnbull

graphically demonstrated that the Act offered inducement for the worst

criminals to appear before an investigating committee to obtain immunity

from their crimes As an example he pointed to lie man who stole two

millions in bonds if you please out of the Interior Department What

does he do He gets himself called as a itness before one of the in

vestigating committees and testifies something in relation to that matter

and then he cannot be indicted u Senator Turnbull then went on to show how

the clerk who purloined two millions in bonds from the Interior Department

was discharged and the indictment against him quashed merely because of

some statement in reference to the matter before an investigating committee

Shortly thereafter the legislative pardon was withdrawn and an imshy

munlty statute was enacted which provided in part that no evidence

obtained from a party or witness shall be used against him 7

in Bfy criminal proceeding u- Under this statute it was merely

the testimony itself which could lomiddott later be used in any criminal proshy

ceeding against the witness but the immunity did not extend to other

matters to which this testimony might indirectly lead This partial

immunity statute was soon challenged in the case of Counselman v 8

Hitchcock - and the Supreme Court agreed that it was invalid for fnil shy

ing to provide the same complete protection as the constitutional privilege

which the witness was required to surrender

To meet the objection raised in the Supreme Courts decision in the

Hitchcock case a clause was thereafter included in the Act relating to

proceedings before the Interstate Commerce Commission in terms broad

enough to furnish absolute immunity from prosecution in the Federal V

Courts

Sustaining the validity of this immunity statute the Supreme Court W

in ~ v Walker in the year 1896 ruled that it fully accomplished

the object of the privilege J and therefore it was adequate to prevent the

witness from asserting his right to claim immunity

Theleaftel the Immunity Act relating to the Interstate Commerce

Commission was incorporated in temporary wartime measures and in

virtually all of the major regulatory enactments of the Federal III

Government - To guard against unwise use ot their authority these

regulatory agencieshave followed the practice of consulting the Attorney

General and getting his approval before granting immunity to witnesses

From what has been said you can readily see that there 1s notbing

novel about immunity legislation Indeed many States have also enacted

laws which provide immunity from prosecution where a witness is compelled

to testify

This shift from privilege to immunity statutes reflected in part the

view of some attorneys and legal scholars that privilege against selt shyY

incrimination was somewhat outmoded and should be strictly limited

As great a guardian ot individual rights and liberty as

Mr Justice Cardozo observed in speaking ot the privilege ot

immunity from compulsory self-incrimination This too might

be lost and justice still be done Indeed today as 1n the past

there are students of our penal system who look upon the immunity

as a Ddschief rather than a benefit and who would limit its scope

or destroy 1t altogether No doubt tpere would remain the need to

gjve protection against torture phys1cal or mental Justice

however would not perish it the accused were subject to a duty to 111

respond to orderly inquiry 1 Thele are other jurists and legal

commentators of distinction who feel that it would be abhorrent to

prinCiples of a tree government to compel a person to testify even j

upon an exchange of full immunity

Witb this background before us I come now to the need for

exchanging immunity for compulsory testimony in light of our

recent experience w1th Congressional investigations into subshy

version crime and corruption The history of Congressional

investigatory powers Just like the privileGe against selfshy121

incrimination goes back to the earlist days of our history

Unlike the privilege however the Constitution does not exshy

pressly provide for any COlBressional Ilower to investigate

It 16 considered as an implied power essential to carry out 16

the general legislative funct1on shy

Congressional investigation commdttees have traditionally 17

been regarded as having these principal fUllctons - to

secure information by which Congress may exercise an informed

judgment in legislating wisely and to check administrative

agencies for determining whether they are properly enforcing

the law and ju11c1ollsly spending the public flnds For these

purpcses Congressional Committees may summon witnesses and 18

require their testimo~ under penalty of contempt proceedings -shy

But a Congressional hearing is not a trial Its function is

primarily to ascertain facta and not to decide on the guilt

or innocence of the witness

In recent years many of these investigating commdttees have been

particula~ly concerned in alerting the American people to the nature

of subversive and other criminal activities the many forms that

these activities take and how they threaten the democratiC processes

Some persons have been critical of these investigations claiming

that th~y restrict freedom of speech by stigmatizing expressions of 19

unpopular views -- Freedom of speech they say implies freedom not to

speult ot all even undel legal compulsion Since wide publicity is

given to these proceedings by newspapers radio and television the

complaint is also that these perSOIlS investigated are exposed to

poscible insult oatruciom und loss of employment It is urged that

mere mention of a persons nome in c0110ection with an inveJtigation

that has wide-spred news vclue may create a distorted and unfair public 20

implession - Another point made is that proof of innocence may never 21

catch up with public It assertions of guilt It It is also said that if

these persons decline to profans any stutement of belief before a comshy22

mittee they iovite pUIiislIDl~lJt for contempt

Unquestionably every effort should be exerted to protect the right

of our people to speak and think freely As Chief Justice Hughes has

Hell said

The greater the importance of safeguarding the community

from incitements to the overthrow of our institutions by force

and violence the mOI~ imperative is the ne~d to preserve inviolate

the constitutioual lights of free speech free press and free

assembly in order to muintain the CJpportunity for free political

discussion l to the end that government may be responsive to the

will of the people and that changes if deSired may be obtained g)j

by peaceful means

~Je shOL1ld dread the dvy middotrhen the people could justifiably become

wary of explessing 1l110zthotLoJ or unpopular opinions or where rumor and

gossip are accepted as subotitutes for evidence

As egainst these threats to our precious liberties we must also

weigh the possible harm to the public scfety and lelfare without llhich

there can be no liberty for anyone yJhile the rights guaranteed by the

Firat Amendment may not be curtailed abuse of these rights may 24

properly be curbed

In his time Abraham Lincoln expressed the problem in these

distressed words ItMust CI government of necessity be too strong

for the libel~ies of its own people or too weak to maintain its own 25

eXistencel The same problem is with us today Obviously if Congress

is to legislate Vlisely with respect to subversion and other crime and

corruption it must not be obstructed from learning ~ho are its

leaders organizers and members the nature and scope of their activishy

ties the character and number of their adherents

I knmv of no constitutional right of privacy which immunizes a

person from giving evidence where an 1nquil~ is conducted by a legally

constituted Congressional committee Tbe person owes this duty as a

citizen just as he m~es the duty to furnish relevant and truthful

testimony in a court of law or gl~nd jury He violates his duty as a

citizen Then he suppresses the facts concerning criminal activity known

to him So long as the questions are pertinent and gel~ne to a lawful

inquiry of Congress the individual is not relieved from answering

because they delve into his private affairs his previous utterances 26

or his affiliations political or otherwise -- The constitutional

guarantee of freedom to epreS8 ones views does not include immunity

from Congressional inquiry as to hat one has said subject to ones

privilege against self-incrimination

Reference to several cases within the last few years demonstrate

how effectively Congressional Committees courts and grand juries have

been blocked in their efforts to uncover subversion as Hell as other

criminal activities because of reliance by 1middotritneases upon their

privilege

In one case the 1-1itness upon ground of privilege refused to anSler

questions before a grand jur7 as to whether she knew the names of the

State officers of the Communist Party of the State what its table of

organization waD vThether she was employed by it whethel she ever had

possession of Communist books and whether she turned the books over

to any particular person At the time the Smith Act was in effect

making it s crime for any person knowing its purposes to be a member

of any group uhich advocates the overthrow of the GovelDmellt Upon the

refusal of the itness to testify she as found to be 1n contempt of

court and sentenced to imprisonment for one year The COU1~ of Appeals

affirmed

Hm-1eve the Supreme Cou~t felt that her answers might furnish

a link in the chain of evidence necessary in a piosecution under the

Smith Act and that the witness was privileged to refuse to furnish any

such link Accordingly it unanimously reversed upon the ground that

prior decisions of this Court have clearly established that under such

circWl16tances the Constitution gives a -1itness the privilege of gy

remaining silent II

In the same way a Federal grand jury was prevented from obtaining

information in its investigation of narcotic and Hhite Slave traffic as

well as bribery perjury and other serious Federal violations 1111e

witness stood upon his privilege against self~incrimination in refusing

to respond to questions as to what he did for a living and whether he

knemiddot certain named pemiddot~son6 Hele again judgment of imprisonment

fo~ contempt was upbeld by the Court of Appeals but reversed by the 28

Supreme Couct with one judge dissenting - upon the ground that tiny

other conclu~ion Would seriously compromise an important constitutional

libecty In this cnse the court held that the defendant could refuse

to anSI-Tel questions innocent on their face since it appeared from the

climate of the investigation and the publicity given defendants

alleged criminal activity that his answers might implicate him in

some federal crime

In anothel cese a COl1gr~ssional Committee attempted in vain to

obtain information from a ~1tl1ess relating to the names of persona enmiddotmiddot

~ged in the manufacture and sale of gambling equipment and other

mutters Finally exaspeeted chief counsel fOl the Committee said

IlLet the record show that the witness just sits there mute Che1Ting

gum saying nothing 1I

The witness Has found guilty of contempt of court and sentenced

to six months in jail but judgment was reversed on appeal The Court

of Appeals declared that the methods used by the Committee for examinashy

tioD of witnesses constituted a triple th~ceat answer truly and you

have given evidence leading to your conviction for a violation of

federal lav anSler falsely and you will be convicted of perjury refuse

to aWn-Tel and you will be found guilty of criminal contempt and punished 29

by fine and imprisonment - In the opinion of the court the predicamiddot

ment in which the ltncss -Tas placed flaS contrary to fair play and in

direct violation of the Fifth Amendment

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

immunity statute was soon challenged in the case of Counselman v 8

Hitchcock - and the Supreme Court agreed that it was invalid for fnil shy

ing to provide the same complete protection as the constitutional privilege

which the witness was required to surrender

To meet the objection raised in the Supreme Courts decision in the

Hitchcock case a clause was thereafter included in the Act relating to

proceedings before the Interstate Commerce Commission in terms broad

enough to furnish absolute immunity from prosecution in the Federal V

Courts

Sustaining the validity of this immunity statute the Supreme Court W

in ~ v Walker in the year 1896 ruled that it fully accomplished

the object of the privilege J and therefore it was adequate to prevent the

witness from asserting his right to claim immunity

Theleaftel the Immunity Act relating to the Interstate Commerce

Commission was incorporated in temporary wartime measures and in

virtually all of the major regulatory enactments of the Federal III

Government - To guard against unwise use ot their authority these

regulatory agencieshave followed the practice of consulting the Attorney

General and getting his approval before granting immunity to witnesses

From what has been said you can readily see that there 1s notbing

novel about immunity legislation Indeed many States have also enacted

laws which provide immunity from prosecution where a witness is compelled

to testify

This shift from privilege to immunity statutes reflected in part the

view of some attorneys and legal scholars that privilege against selt shyY

incrimination was somewhat outmoded and should be strictly limited

As great a guardian ot individual rights and liberty as

Mr Justice Cardozo observed in speaking ot the privilege ot

immunity from compulsory self-incrimination This too might

be lost and justice still be done Indeed today as 1n the past

there are students of our penal system who look upon the immunity

as a Ddschief rather than a benefit and who would limit its scope

or destroy 1t altogether No doubt tpere would remain the need to

gjve protection against torture phys1cal or mental Justice

however would not perish it the accused were subject to a duty to 111

respond to orderly inquiry 1 Thele are other jurists and legal

commentators of distinction who feel that it would be abhorrent to

prinCiples of a tree government to compel a person to testify even j

upon an exchange of full immunity

Witb this background before us I come now to the need for

exchanging immunity for compulsory testimony in light of our

recent experience w1th Congressional investigations into subshy

version crime and corruption The history of Congressional

investigatory powers Just like the privileGe against selfshy121

incrimination goes back to the earlist days of our history

Unlike the privilege however the Constitution does not exshy

pressly provide for any COlBressional Ilower to investigate

It 16 considered as an implied power essential to carry out 16

the general legislative funct1on shy

Congressional investigation commdttees have traditionally 17

been regarded as having these principal fUllctons - to

secure information by which Congress may exercise an informed

judgment in legislating wisely and to check administrative

agencies for determining whether they are properly enforcing

the law and ju11c1ollsly spending the public flnds For these

purpcses Congressional Committees may summon witnesses and 18

require their testimo~ under penalty of contempt proceedings -shy

But a Congressional hearing is not a trial Its function is

primarily to ascertain facta and not to decide on the guilt

or innocence of the witness

In recent years many of these investigating commdttees have been

particula~ly concerned in alerting the American people to the nature

of subversive and other criminal activities the many forms that

these activities take and how they threaten the democratiC processes

Some persons have been critical of these investigations claiming

that th~y restrict freedom of speech by stigmatizing expressions of 19

unpopular views -- Freedom of speech they say implies freedom not to

speult ot all even undel legal compulsion Since wide publicity is

given to these proceedings by newspapers radio and television the

complaint is also that these perSOIlS investigated are exposed to

poscible insult oatruciom und loss of employment It is urged that

mere mention of a persons nome in c0110ection with an inveJtigation

that has wide-spred news vclue may create a distorted and unfair public 20

implession - Another point made is that proof of innocence may never 21

catch up with public It assertions of guilt It It is also said that if

these persons decline to profans any stutement of belief before a comshy22

mittee they iovite pUIiislIDl~lJt for contempt

Unquestionably every effort should be exerted to protect the right

of our people to speak and think freely As Chief Justice Hughes has

Hell said

The greater the importance of safeguarding the community

from incitements to the overthrow of our institutions by force

and violence the mOI~ imperative is the ne~d to preserve inviolate

the constitutioual lights of free speech free press and free

assembly in order to muintain the CJpportunity for free political

discussion l to the end that government may be responsive to the

will of the people and that changes if deSired may be obtained g)j

by peaceful means

~Je shOL1ld dread the dvy middotrhen the people could justifiably become

wary of explessing 1l110zthotLoJ or unpopular opinions or where rumor and

gossip are accepted as subotitutes for evidence

As egainst these threats to our precious liberties we must also

weigh the possible harm to the public scfety and lelfare without llhich

there can be no liberty for anyone yJhile the rights guaranteed by the

Firat Amendment may not be curtailed abuse of these rights may 24

properly be curbed

In his time Abraham Lincoln expressed the problem in these

distressed words ItMust CI government of necessity be too strong

for the libel~ies of its own people or too weak to maintain its own 25

eXistencel The same problem is with us today Obviously if Congress

is to legislate Vlisely with respect to subversion and other crime and

corruption it must not be obstructed from learning ~ho are its

leaders organizers and members the nature and scope of their activishy

ties the character and number of their adherents

I knmv of no constitutional right of privacy which immunizes a

person from giving evidence where an 1nquil~ is conducted by a legally

constituted Congressional committee Tbe person owes this duty as a

citizen just as he m~es the duty to furnish relevant and truthful

testimony in a court of law or gl~nd jury He violates his duty as a

citizen Then he suppresses the facts concerning criminal activity known

to him So long as the questions are pertinent and gel~ne to a lawful

inquiry of Congress the individual is not relieved from answering

because they delve into his private affairs his previous utterances 26

or his affiliations political or otherwise -- The constitutional

guarantee of freedom to epreS8 ones views does not include immunity

from Congressional inquiry as to hat one has said subject to ones

privilege against self-incrimination

Reference to several cases within the last few years demonstrate

how effectively Congressional Committees courts and grand juries have

been blocked in their efforts to uncover subversion as Hell as other

criminal activities because of reliance by 1middotritneases upon their

privilege

In one case the 1-1itness upon ground of privilege refused to anSler

questions before a grand jur7 as to whether she knew the names of the

State officers of the Communist Party of the State what its table of

organization waD vThether she was employed by it whethel she ever had

possession of Communist books and whether she turned the books over

to any particular person At the time the Smith Act was in effect

making it s crime for any person knowing its purposes to be a member

of any group uhich advocates the overthrow of the GovelDmellt Upon the

refusal of the itness to testify she as found to be 1n contempt of

court and sentenced to imprisonment for one year The COU1~ of Appeals

affirmed

Hm-1eve the Supreme Cou~t felt that her answers might furnish

a link in the chain of evidence necessary in a piosecution under the

Smith Act and that the witness was privileged to refuse to furnish any

such link Accordingly it unanimously reversed upon the ground that

prior decisions of this Court have clearly established that under such

circWl16tances the Constitution gives a -1itness the privilege of gy

remaining silent II

In the same way a Federal grand jury was prevented from obtaining

information in its investigation of narcotic and Hhite Slave traffic as

well as bribery perjury and other serious Federal violations 1111e

witness stood upon his privilege against self~incrimination in refusing

to respond to questions as to what he did for a living and whether he

knemiddot certain named pemiddot~son6 Hele again judgment of imprisonment

fo~ contempt was upbeld by the Court of Appeals but reversed by the 28

Supreme Couct with one judge dissenting - upon the ground that tiny

other conclu~ion Would seriously compromise an important constitutional

libecty In this cnse the court held that the defendant could refuse

to anSI-Tel questions innocent on their face since it appeared from the

climate of the investigation and the publicity given defendants

alleged criminal activity that his answers might implicate him in

some federal crime

In anothel cese a COl1gr~ssional Committee attempted in vain to

obtain information from a ~1tl1ess relating to the names of persona enmiddotmiddot

~ged in the manufacture and sale of gambling equipment and other

mutters Finally exaspeeted chief counsel fOl the Committee said

IlLet the record show that the witness just sits there mute Che1Ting

gum saying nothing 1I

The witness Has found guilty of contempt of court and sentenced

to six months in jail but judgment was reversed on appeal The Court

of Appeals declared that the methods used by the Committee for examinashy

tioD of witnesses constituted a triple th~ceat answer truly and you

have given evidence leading to your conviction for a violation of

federal lav anSler falsely and you will be convicted of perjury refuse

to aWn-Tel and you will be found guilty of criminal contempt and punished 29

by fine and imprisonment - In the opinion of the court the predicamiddot

ment in which the ltncss -Tas placed flaS contrary to fair play and in

direct violation of the Fifth Amendment

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

As great a guardian ot individual rights and liberty as

Mr Justice Cardozo observed in speaking ot the privilege ot

immunity from compulsory self-incrimination This too might

be lost and justice still be done Indeed today as 1n the past

there are students of our penal system who look upon the immunity

as a Ddschief rather than a benefit and who would limit its scope

or destroy 1t altogether No doubt tpere would remain the need to

gjve protection against torture phys1cal or mental Justice

however would not perish it the accused were subject to a duty to 111

respond to orderly inquiry 1 Thele are other jurists and legal

commentators of distinction who feel that it would be abhorrent to

prinCiples of a tree government to compel a person to testify even j

upon an exchange of full immunity

Witb this background before us I come now to the need for

exchanging immunity for compulsory testimony in light of our

recent experience w1th Congressional investigations into subshy

version crime and corruption The history of Congressional

investigatory powers Just like the privileGe against selfshy121

incrimination goes back to the earlist days of our history

Unlike the privilege however the Constitution does not exshy

pressly provide for any COlBressional Ilower to investigate

It 16 considered as an implied power essential to carry out 16

the general legislative funct1on shy

Congressional investigation commdttees have traditionally 17

been regarded as having these principal fUllctons - to

secure information by which Congress may exercise an informed

judgment in legislating wisely and to check administrative

agencies for determining whether they are properly enforcing

the law and ju11c1ollsly spending the public flnds For these

purpcses Congressional Committees may summon witnesses and 18

require their testimo~ under penalty of contempt proceedings -shy

But a Congressional hearing is not a trial Its function is

primarily to ascertain facta and not to decide on the guilt

or innocence of the witness

In recent years many of these investigating commdttees have been

particula~ly concerned in alerting the American people to the nature

of subversive and other criminal activities the many forms that

these activities take and how they threaten the democratiC processes

Some persons have been critical of these investigations claiming

that th~y restrict freedom of speech by stigmatizing expressions of 19

unpopular views -- Freedom of speech they say implies freedom not to

speult ot all even undel legal compulsion Since wide publicity is

given to these proceedings by newspapers radio and television the

complaint is also that these perSOIlS investigated are exposed to

poscible insult oatruciom und loss of employment It is urged that

mere mention of a persons nome in c0110ection with an inveJtigation

that has wide-spred news vclue may create a distorted and unfair public 20

implession - Another point made is that proof of innocence may never 21

catch up with public It assertions of guilt It It is also said that if

these persons decline to profans any stutement of belief before a comshy22

mittee they iovite pUIiislIDl~lJt for contempt

Unquestionably every effort should be exerted to protect the right

of our people to speak and think freely As Chief Justice Hughes has

Hell said

The greater the importance of safeguarding the community

from incitements to the overthrow of our institutions by force

and violence the mOI~ imperative is the ne~d to preserve inviolate

the constitutioual lights of free speech free press and free

assembly in order to muintain the CJpportunity for free political

discussion l to the end that government may be responsive to the

will of the people and that changes if deSired may be obtained g)j

by peaceful means

~Je shOL1ld dread the dvy middotrhen the people could justifiably become

wary of explessing 1l110zthotLoJ or unpopular opinions or where rumor and

gossip are accepted as subotitutes for evidence

As egainst these threats to our precious liberties we must also

weigh the possible harm to the public scfety and lelfare without llhich

there can be no liberty for anyone yJhile the rights guaranteed by the

Firat Amendment may not be curtailed abuse of these rights may 24

properly be curbed

In his time Abraham Lincoln expressed the problem in these

distressed words ItMust CI government of necessity be too strong

for the libel~ies of its own people or too weak to maintain its own 25

eXistencel The same problem is with us today Obviously if Congress

is to legislate Vlisely with respect to subversion and other crime and

corruption it must not be obstructed from learning ~ho are its

leaders organizers and members the nature and scope of their activishy

ties the character and number of their adherents

I knmv of no constitutional right of privacy which immunizes a

person from giving evidence where an 1nquil~ is conducted by a legally

constituted Congressional committee Tbe person owes this duty as a

citizen just as he m~es the duty to furnish relevant and truthful

testimony in a court of law or gl~nd jury He violates his duty as a

citizen Then he suppresses the facts concerning criminal activity known

to him So long as the questions are pertinent and gel~ne to a lawful

inquiry of Congress the individual is not relieved from answering

because they delve into his private affairs his previous utterances 26

or his affiliations political or otherwise -- The constitutional

guarantee of freedom to epreS8 ones views does not include immunity

from Congressional inquiry as to hat one has said subject to ones

privilege against self-incrimination

Reference to several cases within the last few years demonstrate

how effectively Congressional Committees courts and grand juries have

been blocked in their efforts to uncover subversion as Hell as other

criminal activities because of reliance by 1middotritneases upon their

privilege

In one case the 1-1itness upon ground of privilege refused to anSler

questions before a grand jur7 as to whether she knew the names of the

State officers of the Communist Party of the State what its table of

organization waD vThether she was employed by it whethel she ever had

possession of Communist books and whether she turned the books over

to any particular person At the time the Smith Act was in effect

making it s crime for any person knowing its purposes to be a member

of any group uhich advocates the overthrow of the GovelDmellt Upon the

refusal of the itness to testify she as found to be 1n contempt of

court and sentenced to imprisonment for one year The COU1~ of Appeals

affirmed

Hm-1eve the Supreme Cou~t felt that her answers might furnish

a link in the chain of evidence necessary in a piosecution under the

Smith Act and that the witness was privileged to refuse to furnish any

such link Accordingly it unanimously reversed upon the ground that

prior decisions of this Court have clearly established that under such

circWl16tances the Constitution gives a -1itness the privilege of gy

remaining silent II

In the same way a Federal grand jury was prevented from obtaining

information in its investigation of narcotic and Hhite Slave traffic as

well as bribery perjury and other serious Federal violations 1111e

witness stood upon his privilege against self~incrimination in refusing

to respond to questions as to what he did for a living and whether he

knemiddot certain named pemiddot~son6 Hele again judgment of imprisonment

fo~ contempt was upbeld by the Court of Appeals but reversed by the 28

Supreme Couct with one judge dissenting - upon the ground that tiny

other conclu~ion Would seriously compromise an important constitutional

libecty In this cnse the court held that the defendant could refuse

to anSI-Tel questions innocent on their face since it appeared from the

climate of the investigation and the publicity given defendants

alleged criminal activity that his answers might implicate him in

some federal crime

In anothel cese a COl1gr~ssional Committee attempted in vain to

obtain information from a ~1tl1ess relating to the names of persona enmiddotmiddot

~ged in the manufacture and sale of gambling equipment and other

mutters Finally exaspeeted chief counsel fOl the Committee said

IlLet the record show that the witness just sits there mute Che1Ting

gum saying nothing 1I

The witness Has found guilty of contempt of court and sentenced

to six months in jail but judgment was reversed on appeal The Court

of Appeals declared that the methods used by the Committee for examinashy

tioD of witnesses constituted a triple th~ceat answer truly and you

have given evidence leading to your conviction for a violation of

federal lav anSler falsely and you will be convicted of perjury refuse

to aWn-Tel and you will be found guilty of criminal contempt and punished 29

by fine and imprisonment - In the opinion of the court the predicamiddot

ment in which the ltncss -Tas placed flaS contrary to fair play and in

direct violation of the Fifth Amendment

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

Unlike the privilege however the Constitution does not exshy

pressly provide for any COlBressional Ilower to investigate

It 16 considered as an implied power essential to carry out 16

the general legislative funct1on shy

Congressional investigation commdttees have traditionally 17

been regarded as having these principal fUllctons - to

secure information by which Congress may exercise an informed

judgment in legislating wisely and to check administrative

agencies for determining whether they are properly enforcing

the law and ju11c1ollsly spending the public flnds For these

purpcses Congressional Committees may summon witnesses and 18

require their testimo~ under penalty of contempt proceedings -shy

But a Congressional hearing is not a trial Its function is

primarily to ascertain facta and not to decide on the guilt

or innocence of the witness

In recent years many of these investigating commdttees have been

particula~ly concerned in alerting the American people to the nature

of subversive and other criminal activities the many forms that

these activities take and how they threaten the democratiC processes

Some persons have been critical of these investigations claiming

that th~y restrict freedom of speech by stigmatizing expressions of 19

unpopular views -- Freedom of speech they say implies freedom not to

speult ot all even undel legal compulsion Since wide publicity is

given to these proceedings by newspapers radio and television the

complaint is also that these perSOIlS investigated are exposed to

poscible insult oatruciom und loss of employment It is urged that

mere mention of a persons nome in c0110ection with an inveJtigation

that has wide-spred news vclue may create a distorted and unfair public 20

implession - Another point made is that proof of innocence may never 21

catch up with public It assertions of guilt It It is also said that if

these persons decline to profans any stutement of belief before a comshy22

mittee they iovite pUIiislIDl~lJt for contempt

Unquestionably every effort should be exerted to protect the right

of our people to speak and think freely As Chief Justice Hughes has

Hell said

The greater the importance of safeguarding the community

from incitements to the overthrow of our institutions by force

and violence the mOI~ imperative is the ne~d to preserve inviolate

the constitutioual lights of free speech free press and free

assembly in order to muintain the CJpportunity for free political

discussion l to the end that government may be responsive to the

will of the people and that changes if deSired may be obtained g)j

by peaceful means

~Je shOL1ld dread the dvy middotrhen the people could justifiably become

wary of explessing 1l110zthotLoJ or unpopular opinions or where rumor and

gossip are accepted as subotitutes for evidence

As egainst these threats to our precious liberties we must also

weigh the possible harm to the public scfety and lelfare without llhich

there can be no liberty for anyone yJhile the rights guaranteed by the

Firat Amendment may not be curtailed abuse of these rights may 24

properly be curbed

In his time Abraham Lincoln expressed the problem in these

distressed words ItMust CI government of necessity be too strong

for the libel~ies of its own people or too weak to maintain its own 25

eXistencel The same problem is with us today Obviously if Congress

is to legislate Vlisely with respect to subversion and other crime and

corruption it must not be obstructed from learning ~ho are its

leaders organizers and members the nature and scope of their activishy

ties the character and number of their adherents

I knmv of no constitutional right of privacy which immunizes a

person from giving evidence where an 1nquil~ is conducted by a legally

constituted Congressional committee Tbe person owes this duty as a

citizen just as he m~es the duty to furnish relevant and truthful

testimony in a court of law or gl~nd jury He violates his duty as a

citizen Then he suppresses the facts concerning criminal activity known

to him So long as the questions are pertinent and gel~ne to a lawful

inquiry of Congress the individual is not relieved from answering

because they delve into his private affairs his previous utterances 26

or his affiliations political or otherwise -- The constitutional

guarantee of freedom to epreS8 ones views does not include immunity

from Congressional inquiry as to hat one has said subject to ones

privilege against self-incrimination

Reference to several cases within the last few years demonstrate

how effectively Congressional Committees courts and grand juries have

been blocked in their efforts to uncover subversion as Hell as other

criminal activities because of reliance by 1middotritneases upon their

privilege

In one case the 1-1itness upon ground of privilege refused to anSler

questions before a grand jur7 as to whether she knew the names of the

State officers of the Communist Party of the State what its table of

organization waD vThether she was employed by it whethel she ever had

possession of Communist books and whether she turned the books over

to any particular person At the time the Smith Act was in effect

making it s crime for any person knowing its purposes to be a member

of any group uhich advocates the overthrow of the GovelDmellt Upon the

refusal of the itness to testify she as found to be 1n contempt of

court and sentenced to imprisonment for one year The COU1~ of Appeals

affirmed

Hm-1eve the Supreme Cou~t felt that her answers might furnish

a link in the chain of evidence necessary in a piosecution under the

Smith Act and that the witness was privileged to refuse to furnish any

such link Accordingly it unanimously reversed upon the ground that

prior decisions of this Court have clearly established that under such

circWl16tances the Constitution gives a -1itness the privilege of gy

remaining silent II

In the same way a Federal grand jury was prevented from obtaining

information in its investigation of narcotic and Hhite Slave traffic as

well as bribery perjury and other serious Federal violations 1111e

witness stood upon his privilege against self~incrimination in refusing

to respond to questions as to what he did for a living and whether he

knemiddot certain named pemiddot~son6 Hele again judgment of imprisonment

fo~ contempt was upbeld by the Court of Appeals but reversed by the 28

Supreme Couct with one judge dissenting - upon the ground that tiny

other conclu~ion Would seriously compromise an important constitutional

libecty In this cnse the court held that the defendant could refuse

to anSI-Tel questions innocent on their face since it appeared from the

climate of the investigation and the publicity given defendants

alleged criminal activity that his answers might implicate him in

some federal crime

In anothel cese a COl1gr~ssional Committee attempted in vain to

obtain information from a ~1tl1ess relating to the names of persona enmiddotmiddot

~ged in the manufacture and sale of gambling equipment and other

mutters Finally exaspeeted chief counsel fOl the Committee said

IlLet the record show that the witness just sits there mute Che1Ting

gum saying nothing 1I

The witness Has found guilty of contempt of court and sentenced

to six months in jail but judgment was reversed on appeal The Court

of Appeals declared that the methods used by the Committee for examinashy

tioD of witnesses constituted a triple th~ceat answer truly and you

have given evidence leading to your conviction for a violation of

federal lav anSler falsely and you will be convicted of perjury refuse

to aWn-Tel and you will be found guilty of criminal contempt and punished 29

by fine and imprisonment - In the opinion of the court the predicamiddot

ment in which the ltncss -Tas placed flaS contrary to fair play and in

direct violation of the Fifth Amendment

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

speult ot all even undel legal compulsion Since wide publicity is

given to these proceedings by newspapers radio and television the

complaint is also that these perSOIlS investigated are exposed to

poscible insult oatruciom und loss of employment It is urged that

mere mention of a persons nome in c0110ection with an inveJtigation

that has wide-spred news vclue may create a distorted and unfair public 20

implession - Another point made is that proof of innocence may never 21

catch up with public It assertions of guilt It It is also said that if

these persons decline to profans any stutement of belief before a comshy22

mittee they iovite pUIiislIDl~lJt for contempt

Unquestionably every effort should be exerted to protect the right

of our people to speak and think freely As Chief Justice Hughes has

Hell said

The greater the importance of safeguarding the community

from incitements to the overthrow of our institutions by force

and violence the mOI~ imperative is the ne~d to preserve inviolate

the constitutioual lights of free speech free press and free

assembly in order to muintain the CJpportunity for free political

discussion l to the end that government may be responsive to the

will of the people and that changes if deSired may be obtained g)j

by peaceful means

~Je shOL1ld dread the dvy middotrhen the people could justifiably become

wary of explessing 1l110zthotLoJ or unpopular opinions or where rumor and

gossip are accepted as subotitutes for evidence

As egainst these threats to our precious liberties we must also

weigh the possible harm to the public scfety and lelfare without llhich

there can be no liberty for anyone yJhile the rights guaranteed by the

Firat Amendment may not be curtailed abuse of these rights may 24

properly be curbed

In his time Abraham Lincoln expressed the problem in these

distressed words ItMust CI government of necessity be too strong

for the libel~ies of its own people or too weak to maintain its own 25

eXistencel The same problem is with us today Obviously if Congress

is to legislate Vlisely with respect to subversion and other crime and

corruption it must not be obstructed from learning ~ho are its

leaders organizers and members the nature and scope of their activishy

ties the character and number of their adherents

I knmv of no constitutional right of privacy which immunizes a

person from giving evidence where an 1nquil~ is conducted by a legally

constituted Congressional committee Tbe person owes this duty as a

citizen just as he m~es the duty to furnish relevant and truthful

testimony in a court of law or gl~nd jury He violates his duty as a

citizen Then he suppresses the facts concerning criminal activity known

to him So long as the questions are pertinent and gel~ne to a lawful

inquiry of Congress the individual is not relieved from answering

because they delve into his private affairs his previous utterances 26

or his affiliations political or otherwise -- The constitutional

guarantee of freedom to epreS8 ones views does not include immunity

from Congressional inquiry as to hat one has said subject to ones

privilege against self-incrimination

Reference to several cases within the last few years demonstrate

how effectively Congressional Committees courts and grand juries have

been blocked in their efforts to uncover subversion as Hell as other

criminal activities because of reliance by 1middotritneases upon their

privilege

In one case the 1-1itness upon ground of privilege refused to anSler

questions before a grand jur7 as to whether she knew the names of the

State officers of the Communist Party of the State what its table of

organization waD vThether she was employed by it whethel she ever had

possession of Communist books and whether she turned the books over

to any particular person At the time the Smith Act was in effect

making it s crime for any person knowing its purposes to be a member

of any group uhich advocates the overthrow of the GovelDmellt Upon the

refusal of the itness to testify she as found to be 1n contempt of

court and sentenced to imprisonment for one year The COU1~ of Appeals

affirmed

Hm-1eve the Supreme Cou~t felt that her answers might furnish

a link in the chain of evidence necessary in a piosecution under the

Smith Act and that the witness was privileged to refuse to furnish any

such link Accordingly it unanimously reversed upon the ground that

prior decisions of this Court have clearly established that under such

circWl16tances the Constitution gives a -1itness the privilege of gy

remaining silent II

In the same way a Federal grand jury was prevented from obtaining

information in its investigation of narcotic and Hhite Slave traffic as

well as bribery perjury and other serious Federal violations 1111e

witness stood upon his privilege against self~incrimination in refusing

to respond to questions as to what he did for a living and whether he

knemiddot certain named pemiddot~son6 Hele again judgment of imprisonment

fo~ contempt was upbeld by the Court of Appeals but reversed by the 28

Supreme Couct with one judge dissenting - upon the ground that tiny

other conclu~ion Would seriously compromise an important constitutional

libecty In this cnse the court held that the defendant could refuse

to anSI-Tel questions innocent on their face since it appeared from the

climate of the investigation and the publicity given defendants

alleged criminal activity that his answers might implicate him in

some federal crime

In anothel cese a COl1gr~ssional Committee attempted in vain to

obtain information from a ~1tl1ess relating to the names of persona enmiddotmiddot

~ged in the manufacture and sale of gambling equipment and other

mutters Finally exaspeeted chief counsel fOl the Committee said

IlLet the record show that the witness just sits there mute Che1Ting

gum saying nothing 1I

The witness Has found guilty of contempt of court and sentenced

to six months in jail but judgment was reversed on appeal The Court

of Appeals declared that the methods used by the Committee for examinashy

tioD of witnesses constituted a triple th~ceat answer truly and you

have given evidence leading to your conviction for a violation of

federal lav anSler falsely and you will be convicted of perjury refuse

to aWn-Tel and you will be found guilty of criminal contempt and punished 29

by fine and imprisonment - In the opinion of the court the predicamiddot

ment in which the ltncss -Tas placed flaS contrary to fair play and in

direct violation of the Fifth Amendment

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

Firat Amendment may not be curtailed abuse of these rights may 24

properly be curbed

In his time Abraham Lincoln expressed the problem in these

distressed words ItMust CI government of necessity be too strong

for the libel~ies of its own people or too weak to maintain its own 25

eXistencel The same problem is with us today Obviously if Congress

is to legislate Vlisely with respect to subversion and other crime and

corruption it must not be obstructed from learning ~ho are its

leaders organizers and members the nature and scope of their activishy

ties the character and number of their adherents

I knmv of no constitutional right of privacy which immunizes a

person from giving evidence where an 1nquil~ is conducted by a legally

constituted Congressional committee Tbe person owes this duty as a

citizen just as he m~es the duty to furnish relevant and truthful

testimony in a court of law or gl~nd jury He violates his duty as a

citizen Then he suppresses the facts concerning criminal activity known

to him So long as the questions are pertinent and gel~ne to a lawful

inquiry of Congress the individual is not relieved from answering

because they delve into his private affairs his previous utterances 26

or his affiliations political or otherwise -- The constitutional

guarantee of freedom to epreS8 ones views does not include immunity

from Congressional inquiry as to hat one has said subject to ones

privilege against self-incrimination

Reference to several cases within the last few years demonstrate

how effectively Congressional Committees courts and grand juries have

been blocked in their efforts to uncover subversion as Hell as other

criminal activities because of reliance by 1middotritneases upon their

privilege

In one case the 1-1itness upon ground of privilege refused to anSler

questions before a grand jur7 as to whether she knew the names of the

State officers of the Communist Party of the State what its table of

organization waD vThether she was employed by it whethel she ever had

possession of Communist books and whether she turned the books over

to any particular person At the time the Smith Act was in effect

making it s crime for any person knowing its purposes to be a member

of any group uhich advocates the overthrow of the GovelDmellt Upon the

refusal of the itness to testify she as found to be 1n contempt of

court and sentenced to imprisonment for one year The COU1~ of Appeals

affirmed

Hm-1eve the Supreme Cou~t felt that her answers might furnish

a link in the chain of evidence necessary in a piosecution under the

Smith Act and that the witness was privileged to refuse to furnish any

such link Accordingly it unanimously reversed upon the ground that

prior decisions of this Court have clearly established that under such

circWl16tances the Constitution gives a -1itness the privilege of gy

remaining silent II

In the same way a Federal grand jury was prevented from obtaining

information in its investigation of narcotic and Hhite Slave traffic as

well as bribery perjury and other serious Federal violations 1111e

witness stood upon his privilege against self~incrimination in refusing

to respond to questions as to what he did for a living and whether he

knemiddot certain named pemiddot~son6 Hele again judgment of imprisonment

fo~ contempt was upbeld by the Court of Appeals but reversed by the 28

Supreme Couct with one judge dissenting - upon the ground that tiny

other conclu~ion Would seriously compromise an important constitutional

libecty In this cnse the court held that the defendant could refuse

to anSI-Tel questions innocent on their face since it appeared from the

climate of the investigation and the publicity given defendants

alleged criminal activity that his answers might implicate him in

some federal crime

In anothel cese a COl1gr~ssional Committee attempted in vain to

obtain information from a ~1tl1ess relating to the names of persona enmiddotmiddot

~ged in the manufacture and sale of gambling equipment and other

mutters Finally exaspeeted chief counsel fOl the Committee said

IlLet the record show that the witness just sits there mute Che1Ting

gum saying nothing 1I

The witness Has found guilty of contempt of court and sentenced

to six months in jail but judgment was reversed on appeal The Court

of Appeals declared that the methods used by the Committee for examinashy

tioD of witnesses constituted a triple th~ceat answer truly and you

have given evidence leading to your conviction for a violation of

federal lav anSler falsely and you will be convicted of perjury refuse

to aWn-Tel and you will be found guilty of criminal contempt and punished 29

by fine and imprisonment - In the opinion of the court the predicamiddot

ment in which the ltncss -Tas placed flaS contrary to fair play and in

direct violation of the Fifth Amendment

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

been blocked in their efforts to uncover subversion as Hell as other

criminal activities because of reliance by 1middotritneases upon their

privilege

In one case the 1-1itness upon ground of privilege refused to anSler

questions before a grand jur7 as to whether she knew the names of the

State officers of the Communist Party of the State what its table of

organization waD vThether she was employed by it whethel she ever had

possession of Communist books and whether she turned the books over

to any particular person At the time the Smith Act was in effect

making it s crime for any person knowing its purposes to be a member

of any group uhich advocates the overthrow of the GovelDmellt Upon the

refusal of the itness to testify she as found to be 1n contempt of

court and sentenced to imprisonment for one year The COU1~ of Appeals

affirmed

Hm-1eve the Supreme Cou~t felt that her answers might furnish

a link in the chain of evidence necessary in a piosecution under the

Smith Act and that the witness was privileged to refuse to furnish any

such link Accordingly it unanimously reversed upon the ground that

prior decisions of this Court have clearly established that under such

circWl16tances the Constitution gives a -1itness the privilege of gy

remaining silent II

In the same way a Federal grand jury was prevented from obtaining

information in its investigation of narcotic and Hhite Slave traffic as

well as bribery perjury and other serious Federal violations 1111e

witness stood upon his privilege against self~incrimination in refusing

to respond to questions as to what he did for a living and whether he

knemiddot certain named pemiddot~son6 Hele again judgment of imprisonment

fo~ contempt was upbeld by the Court of Appeals but reversed by the 28

Supreme Couct with one judge dissenting - upon the ground that tiny

other conclu~ion Would seriously compromise an important constitutional

libecty In this cnse the court held that the defendant could refuse

to anSI-Tel questions innocent on their face since it appeared from the

climate of the investigation and the publicity given defendants

alleged criminal activity that his answers might implicate him in

some federal crime

In anothel cese a COl1gr~ssional Committee attempted in vain to

obtain information from a ~1tl1ess relating to the names of persona enmiddotmiddot

~ged in the manufacture and sale of gambling equipment and other

mutters Finally exaspeeted chief counsel fOl the Committee said

IlLet the record show that the witness just sits there mute Che1Ting

gum saying nothing 1I

The witness Has found guilty of contempt of court and sentenced

to six months in jail but judgment was reversed on appeal The Court

of Appeals declared that the methods used by the Committee for examinashy

tioD of witnesses constituted a triple th~ceat answer truly and you

have given evidence leading to your conviction for a violation of

federal lav anSler falsely and you will be convicted of perjury refuse

to aWn-Tel and you will be found guilty of criminal contempt and punished 29

by fine and imprisonment - In the opinion of the court the predicamiddot

ment in which the ltncss -Tas placed flaS contrary to fair play and in

direct violation of the Fifth Amendment

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

knemiddot certain named pemiddot~son6 Hele again judgment of imprisonment

fo~ contempt was upbeld by the Court of Appeals but reversed by the 28

Supreme Couct with one judge dissenting - upon the ground that tiny

other conclu~ion Would seriously compromise an important constitutional

libecty In this cnse the court held that the defendant could refuse

to anSI-Tel questions innocent on their face since it appeared from the

climate of the investigation and the publicity given defendants

alleged criminal activity that his answers might implicate him in

some federal crime

In anothel cese a COl1gr~ssional Committee attempted in vain to

obtain information from a ~1tl1ess relating to the names of persona enmiddotmiddot

~ged in the manufacture and sale of gambling equipment and other

mutters Finally exaspeeted chief counsel fOl the Committee said

IlLet the record show that the witness just sits there mute Che1Ting

gum saying nothing 1I

The witness Has found guilty of contempt of court and sentenced

to six months in jail but judgment was reversed on appeal The Court

of Appeals declared that the methods used by the Committee for examinashy

tioD of witnesses constituted a triple th~ceat answer truly and you

have given evidence leading to your conviction for a violation of

federal lav anSler falsely and you will be convicted of perjury refuse

to aWn-Tel and you will be found guilty of criminal contempt and punished 29

by fine and imprisonment - In the opinion of the court the predicamiddot

ment in which the ltncss -Tas placed flaS contrary to fair play and in

direct violation of the Fifth Amendment

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

These decisions could be multiplied and undoubtedly represent

prevailing law Almo3t every heinous crime on the law books comshy

roitted by Inlt1ividuals or by groups J remains uncove ced because of the

privilege against self-incrimination But it is in the area of subshy

version and disloyalty particularly that the privelege has a field

day 11 It is haIe that legislatiye connnittees and grand juries are

held at bay for years from learning vlhich leaders are plotting the

countrys destruction merely because witnesses are relieved of giving

essential information upon the ground of privilege

It is little Vlonder that lat-l-ebiding citizens frequently are heard

to say that sub-rersives and other lrongdoers are unduly coddled by

existing law They express anlDzement that the Congress and the Courts

should conttnue to put up ith subterfuge and concealment 1 n place of

truth at a time 1vhen the peril from Communiam is 60 great and -1hen

crime 1s so rrunpa1t They earnestly ucge upon us the vital need for

modernizing the legal ~eapons for fighting subversion and crime

These pleas of the people for more dcastic action against subshy

version and other misconduct have not gone unheeded Some States and

cities provide fer the dismissal of public employees ho refuse to

testify on grounds of self-incrimination or Tho refuse to t-aive imshy30

munity from prosecution

Some States prescribe loyalty oaths for admission to the Bar -1hich

go beyond the traditional promise to uphold the State and National 31

Constitutions shy

Some States and municipalities have passed statutes requiring

affidavits of puhlic employees that they are not and have never 32

been Communists Some States make ineligible to teach in any public

school a person vTho was a memher of an organization which advocates the

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

~ overthimiddotow of the Government by force Some of these statutes have been

JY upheld us valid by the Supreme Cou~~ including the provision of the

New York State law which provides that mecbership by a person in an

organization listed as subve~sive by the Dcard of Regents shall constitute

prima facie evidence of disqualification for employment 1n the public 12

schools This was the so-called Feinberg Law aimed at protecting the school

children of lew York against teachels who were spreading communist propaganda

~e poisonous propaganda was Bufficiently subtle to escape detection in the

class room The New York Legislature recognized that while the schools must

attract and protect the critical minds the schools vlere not sanctuaries for

those who were committed to follot-l in the footsteps of Klaus Fuchs It sought

the next best solution by e4cluding froIij teaching those affiliated with certain

orgn1zations listed by the Board of Regents vlhich advocated the overthrow

of the government

One of the main constitutional objections to the law was that it vishy

alated the First Amendment by creating an atmosphere of fear which would

inevitably stifle freedom of speech The Court in an opinion by Judge

Minton formerly of the COUl~ of Appeals for this Circuit r~jected the conshy

tention that the la interfered Vlith free speech since persons uhave no right

to ork for the smiddottate in the school system on their own terms They may york

for the school system upon the reasonable terms laid d01n by the proper

authorities of Neu York If they do not choose to work on such terms they 36

are at libelty to ~etain their beliefs and associations and go elsewhere 1

The Supreme Court -las also lholly unimpressed by the contention that

the law condoned guilt by association contrary to democratic concepts of

justice On this point the Court sald ilL teacher lOrks in a sensitive area

in a school room There he shapes the attitude of young minds toward the

society in which they live In this the state has a vital concern It must

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

preserve the integcity of the schools That the school authorities haVe

the right and duty to aceen the officials teachers and their employees as

to their fitness to majnjail1 the integrity of the schools as a part of an

ordered society cannot be doubtecl One I s associates past and present as

vell os one t a conduct moy proIJerly be considered in determining fitness

and loyalty From time immemoljal one t a reputation ha3 been determined by

the company he keeps In the employment of officials and teachers of the

school systeil the state may very properly inquire into the company they 37

keep n

The Fedel~al GOyernrlent (llso has taken effective measures to protect

the interests of netional cecu1ity One long step forward in that direction

was to enact legislation requiring non middotmiddotCommul1ist affidavits from trade

union leaders vihose unions rBnted to resort to the advantages of the Taftshy38

Hartley Act - Tl1e Ptllpose of thiu requirement vas to prevent disruption of 39

industry in obedience to Communist Party orders If the union leaderls

affidavit us false be CQuId be sent to jail

The Federal Government has also tried its best to clean its Gvln

house fI On April 27 1953 the President by Executive oXde~ established

his security requirements for employment so that pelsons employed by the

Federal Government will be reliable trustworthy of sood character and 40

loyal to the United States On October 13 1953 the President amended

his Executive order so as to provide that imiddotlbe~~e a government employee refuses

to testify before a Congressional Coramittee regarding charges of his diashy

loyalty or misconduct an agency may take this factor into consideration

in determining hethe~ the person I s continued employment is inconsistent ~_f 41

with the national securtty This emendment to the Presidents Executive

order is in accord i th my opinion that a government employee oTho claims

privilege in a Congressional investigation may be too much of a risk to be

retained in Federal Service

A recent Senate Report entitled tlInterlocldng Subversion in

WGovernment fl fully documents how former government employees were

able to spin their web of intrigue in positions of influ6nce The

Report states

1tlJ~e subcommittee exumined in public session 36 pershy

sons about whom it had substantial evidence of membership

in the Communist undergrolld 10 Government All of them

invoked tha fifth amenmnen~ ~~d refused to answer questions

regardicg COnrIranist membership on the grounds of self-in

crinlination Many reused even to eomowledge their own

sigl1attles on official Govelnment doclllllents in which they

haG SViorn to nonmernbership in the past

All)st all of he persons exposed by the evidence had

Bome connection which could be documented vith at least one-shy

a~d generally several--other e~o6ed persons Tney used eaoh

other s names for referenoe on ~licationa for Federal em-

p10~lOOnt They hire eaoh other They pomot~d eampQh other

hAY raised each others sal~ries They transfer~ampd eaah

otlwr from bureau to bureau from depariment to department

from congressional committee to congressional committee

They assigned each other to international missions They

vouched for each others loyalty end prctected each other

when exposure threaten~d ~ley often had common living

qUaters tI

Suppression i truth in any case is bad enough In no event

can it be justified by a Government employee or applicant for Govern

ment empl~Jment in the face of a Congressional inquiry where the

interests of the national Bect~lty are at stake No one denies that

the Government employee or applicant for such employment may conshy

stitutionally claim his privilege against self-incrimination On

the other hand no one has a constitutional right to a Government

job W True the Supreme Court ha held that the constitutional

protection does extend to the public servant whose exclusion pursuant

to a statute Is patently arbitrary or discriminatory II W But in

my opinion there is nothing e1ther arbtrary or discriminatry about

diSDdssing a federal employee where he refuses to waive the privilege

against self-incrimination guaranteed him by tho Const tution We

find an analogous situation presented in the recent decision of the

~reme Court in Orloff v WilloughbY ~ In that case the peti shy

tioner a physician was denied a commission in the Army principally

tor the reason that when asked hether he was a member in any Communist JY

organizations he replied) Federal Constitutional privilege is claimed

In its opinion through Mr Justice Jackson the Supreme Court said

It ia argued that Orlorf 1s being punished for havshy

ing claimed a privilege which the Constitution guarantees

No one at least no ane on this Court which has repeatedly

sustained assertion by Communists of the privilege against

selfMincr~inatian questions or doubts Orloffs right to

withhold facts about himself on this ground No one beshy

l1evee he can be punished for doing so But the question

is whether be can at the same time take the position that

to tell the truth about himself Vlould incriminate him and

that even so the President must appofnt him to a post of

honor and trust le have no hesitation in answering that

question No II There is no law which requires the Gove~~ent to sit supinely by

until the suspeoted eIlIployee has been convicted of disloyalty or other

similar misoonduct inconsistent with the interests of the national

security before it can sCPal~ate him from the Government service There

is no law which requires the Government to assume or endure such a risk

As was pointed out in an apt csae by the Supreme Court in American

Commtlnications v Douds speaking through the beloved late Chief

Justice Vinson

IfThat (first) amendment requires that one be permitted to

believe what he will It requires that one be permitted

to advocate what he will unless there is a clear and

present danger that a substantial public evil will result

therefrom It does not require that he be permitted to be

the keeper of the arsenal

I have not overlooked the fact that the loyalty and honesty of

the ovel~vhelming majority of all Government employeesmiddot is beyond quesshy

tion But their good reputations and character are far better proshy

tected from un1tfarranted criticism when we root out the few who are

unreliable and disloyal

What the critical situation of om time calls for is a lavr com

pt)lling testimony within the fr~neuro1Torl of the Constitution The tmshy

swer to this need is immuni-ty legislaiion which will be as broad as

the privilege W11ich is stJpplanted tV Then if a person is adjudged

ill cOlte~Pt for refusing to te3tify before a Cotgressional committee

he will know tZat t-le ~udgrnerJt of OOllt-empt will more likely stand up

on appeal free from oonstitutional ohal1enge

At the same time the l~w will also provide more adequate proshy

tection for the wit~ss

At presnt the witne31l is in a rtboxtl so to slJeGk The witness

is not exc~ed from an3werL~g merely because he believes his answers

Vlil1 incriminate him His slly-ao does not of its(gt~r establish the

1amphazeId of ilcriIltination II ~~ere he olaims his privil~ge it is

the ftL1ction of the jcge to dets-rmme whether the siJence of t1e

witness is justified or wha~1er the danger to be apprebenced is too

remote to be sl1bstattial To save himself from being held in conshy

tempt tl1e witness may oftcn be cOJIpEtled to disclos3 til0ne very

facts whtrh he claims are privileged iQ

Witnesses are alao aided by a b~oad immunity statute in still

another way Under our la unlike that of England t a disclosure of

any incriminating fact constitutes a wailer of the privilege as to deshy

tails con~erning that fact 211 Having made a partial disclosure of

Suppression i truth in any case is bad enough In no event

can it be justified by a Government employee or applicant for Govern

ment empl~Jment in the face of a Congressional inquiry where the

interests of the national Bect~lty are at stake No one denies that

the Government employee or applicant for such employment may conshy

stitutionally claim his privilege against self-incrimination On

the other hand no one has a constitutional right to a Government

job W True the Supreme Court ha held that the constitutional

protection does extend to the public servant whose exclusion pursuant

to a statute Is patently arbitrary or discriminatory II W But in

my opinion there is nothing e1ther arbtrary or discriminatry about

diSDdssing a federal employee where he refuses to waive the privilege

against self-incrimination guaranteed him by tho Const tution We

find an analogous situation presented in the recent decision of the

~reme Court in Orloff v WilloughbY ~ In that case the peti shy

tioner a physician was denied a commission in the Army principally

tor the reason that when asked hether he was a member in any Communist JY

organizations he replied) Federal Constitutional privilege is claimed

In its opinion through Mr Justice Jackson the Supreme Court said

It ia argued that Orlorf 1s being punished for havshy

ing claimed a privilege which the Constitution guarantees

No one at least no ane on this Court which has repeatedly

sustained assertion by Communists of the privilege against

selfMincr~inatian questions or doubts Orloffs right to

withhold facts about himself on this ground No one beshy

l1evee he can be punished for doing so But the question

is whether be can at the same time take the position that

to tell the truth about himself Vlould incriminate him and

that even so the President must appofnt him to a post of

honor and trust le have no hesitation in answering that

question No II There is no law which requires the Gove~~ent to sit supinely by

until the suspeoted eIlIployee has been convicted of disloyalty or other

similar misoonduct inconsistent with the interests of the national

security before it can sCPal~ate him from the Government service There

is no law which requires the Government to assume or endure such a risk

As was pointed out in an apt csae by the Supreme Court in American

Commtlnications v Douds speaking through the beloved late Chief

Justice Vinson

IfThat (first) amendment requires that one be permitted to

believe what he will It requires that one be permitted

to advocate what he will unless there is a clear and

present danger that a substantial public evil will result

therefrom It does not require that he be permitted to be

the keeper of the arsenal

I have not overlooked the fact that the loyalty and honesty of

the ovel~vhelming majority of all Government employeesmiddot is beyond quesshy

tion But their good reputations and character are far better proshy

tected from un1tfarranted criticism when we root out the few who are

unreliable and disloyal

What the critical situation of om time calls for is a lavr com

pt)lling testimony within the fr~neuro1Torl of the Constitution The tmshy

swer to this need is immuni-ty legislaiion which will be as broad as

the privilege W11ich is stJpplanted tV Then if a person is adjudged

ill cOlte~Pt for refusing to te3tify before a Cotgressional committee

he will know tZat t-le ~udgrnerJt of OOllt-empt will more likely stand up

on appeal free from oonstitutional ohal1enge

At the same time the l~w will also provide more adequate proshy

tection for the wit~ss

At presnt the witne31l is in a rtboxtl so to slJeGk The witness

is not exc~ed from an3werL~g merely because he believes his answers

Vlil1 incriminate him His slly-ao does not of its(gt~r establish the

1amphazeId of ilcriIltination II ~~ere he olaims his privil~ge it is

the ftL1ction of the jcge to dets-rmme whether the siJence of t1e

witness is justified or wha~1er the danger to be apprebenced is too

remote to be sl1bstattial To save himself from being held in conshy

tempt tl1e witness may oftcn be cOJIpEtled to disclos3 til0ne very

facts whtrh he claims are privileged iQ

Witnesses are alao aided by a b~oad immunity statute in still

another way Under our la unlike that of England t a disclosure of

any incriminating fact constitutes a wailer of the privilege as to deshy

tails con~erning that fact 211 Having made a partial disclosure of

is whether be can at the same time take the position that

to tell the truth about himself Vlould incriminate him and

that even so the President must appofnt him to a post of

honor and trust le have no hesitation in answering that

question No II There is no law which requires the Gove~~ent to sit supinely by

until the suspeoted eIlIployee has been convicted of disloyalty or other

similar misoonduct inconsistent with the interests of the national

security before it can sCPal~ate him from the Government service There

is no law which requires the Government to assume or endure such a risk

As was pointed out in an apt csae by the Supreme Court in American

Commtlnications v Douds speaking through the beloved late Chief

Justice Vinson

IfThat (first) amendment requires that one be permitted to

believe what he will It requires that one be permitted

to advocate what he will unless there is a clear and

present danger that a substantial public evil will result

therefrom It does not require that he be permitted to be

the keeper of the arsenal

I have not overlooked the fact that the loyalty and honesty of

the ovel~vhelming majority of all Government employeesmiddot is beyond quesshy

tion But their good reputations and character are far better proshy

tected from un1tfarranted criticism when we root out the few who are

unreliable and disloyal

What the critical situation of om time calls for is a lavr com

pt)lling testimony within the fr~neuro1Torl of the Constitution The tmshy

swer to this need is immuni-ty legislaiion which will be as broad as

the privilege W11ich is stJpplanted tV Then if a person is adjudged

ill cOlte~Pt for refusing to te3tify before a Cotgressional committee

he will know tZat t-le ~udgrnerJt of OOllt-empt will more likely stand up

on appeal free from oonstitutional ohal1enge

At the same time the l~w will also provide more adequate proshy

tection for the wit~ss

At presnt the witne31l is in a rtboxtl so to slJeGk The witness

is not exc~ed from an3werL~g merely because he believes his answers

Vlil1 incriminate him His slly-ao does not of its(gt~r establish the

1amphazeId of ilcriIltination II ~~ere he olaims his privil~ge it is

the ftL1ction of the jcge to dets-rmme whether the siJence of t1e

witness is justified or wha~1er the danger to be apprebenced is too

remote to be sl1bstattial To save himself from being held in conshy

tempt tl1e witness may oftcn be cOJIpEtled to disclos3 til0ne very

facts whtrh he claims are privileged iQ

Witnesses are alao aided by a b~oad immunity statute in still

another way Under our la unlike that of England t a disclosure of

any incriminating fact constitutes a wailer of the privilege as to deshy

tails con~erning that fact 211 Having made a partial disclosure of

What the critical situation of om time calls for is a lavr com

pt)lling testimony within the fr~neuro1Torl of the Constitution The tmshy

swer to this need is immuni-ty legislaiion which will be as broad as

the privilege W11ich is stJpplanted tV Then if a person is adjudged

ill cOlte~Pt for refusing to te3tify before a Cotgressional committee

he will know tZat t-le ~udgrnerJt of OOllt-empt will more likely stand up

on appeal free from oonstitutional ohal1enge

At the same time the l~w will also provide more adequate proshy

tection for the wit~ss

At presnt the witne31l is in a rtboxtl so to slJeGk The witness

is not exc~ed from an3werL~g merely because he believes his answers

Vlil1 incriminate him His slly-ao does not of its(gt~r establish the

1amphazeId of ilcriIltination II ~~ere he olaims his privil~ge it is

the ftL1ction of the jcge to dets-rmme whether the siJence of t1e

witness is justified or wha~1er the danger to be apprebenced is too

remote to be sl1bstattial To save himself from being held in conshy

tempt tl1e witness may oftcn be cOJIpEtled to disclos3 til0ne very

facts whtrh he claims are privileged iQ

Witnesses are alao aided by a b~oad immunity statute in still

another way Under our la unlike that of England t a disclosure of

any incriminating fact constitutes a wailer of the privilege as to deshy

tails con~erning that fact 211 Having made a partial disclosure of

faots the witness loses the rig~t to cease answering intel~ogat1ons

and rely upon his privilege at a 1ater point in his testimony

In one oase the detendant rree~ disclosed that she was Treasshy

urer of the Communist Pariy in COlorado and testified that she had

given the books ot the party to another person When asked to dishy

wlge the name ot the lamiddottter she refused upon the ground that the

answer might incriminate her mder the Sm1tb Act Atfirming her

conviction for contempt the Supreme Court speaking through Chief

Justice Vinson said

Since the privilege agatnlt salf-inorimination

presupposes a real danger ot legal detriment arising

from the disolosure petitioner cannot invoke the

privilege where response to the specific question in

issue here would not ftUtther inoriminate her O1aolo

sure of e tact waives the privilege as to details pound

This deoision leaves the law in a rather anomolous position tor the

vlitness A witness who refuses to answer aU questions and fails to Wcooperate to any extent may be protected by the claim of privilege

But there is no equal protection atforded by the decisions to the

witness who commences to eooperate but stops at a point where further

disclosure may tncrim1~ate him

Moreover it the witness refuses to answer on the ground that

Congress has exceeded its powers or that the inQuiry in lacking in

pertinency he construas the law at his peril If mistake8 his good 55

faith error of law constitutes no defense to fine and imprisonment

Then again it is claimed DY some that a persons election to

remain silent upon the ground of privilege does not necessarily mean

he has anything sinister to hide There are undoubtedly some people of

sincere principle who refl1se to disclose 1flformat1oft to authorized

1nvestigating authorities because of their feeling that ao one has any

right to 1~quire about their beliefs even if germane to the inquiry at 56

bsnd- There are other persons who refuse to answer because they feel

their recollections of events lons past are fee~le and that falsehood

even on trivial or irrelevant matters may subject them to a charge of

perjury There are still others less innocent vho say that coercing

them to testify under pain of contempt resembles the Soviet tactic of

requiring those SUilty not only to pay for but also to prcclatD their 57

guilt shy

~he use of broad tmmunity statutes serves to remove the dansers

mentioned for the iDPocent a~d operates aa an incentive for the guilty

to tell the truth

There are already two proposals pendin8 in Congress which seek to

compel the answer by witnesses at questioDs put to them before Conshy

gressiOl1al Committees grand juries or courts In exchange tor this

compulsory testimony the Witnesses will obtain complete immunity froa

prosecution

58 One Bill is s~ 565 This proposal grants immunity to ~itnesses

before a grand Jury or court of the United States when in the disshy

cretion of th~ Attorney General it is necessary to do so in the public

interest In exchange for this immunity the witness is compelled to

testify and to produce his books papers or recoIds s 565 uses

broad immunity lengtase in stating that the witness shall not be

prosecuted on account of any transaction matter or thing concerning

which he 1s compelled after ela~ing his privilege to testify or

produce evidence

In this respect s 565 is almost ident1cal to the immunity proshy59

vision sustained 8S valid by the Supreme Court e~ far back as 1896-

This Bill does not extend the immunity to witnesses before Congressional

Committees 601 61

There are other Bills pend-ing S 16- middot and H R 27371 with equally

broad immunity authority The Senate has passed its Bill but the House

Bill still awaits action Both these Bills grunt immunity to witnesses

before Congressional Committees but not to witnesses before grand

juries or courts

The proposed Bills are worded so that the witness will not get an

immunity bathU merely by testifying He must first raise specifically

his claim for privilege and thus put the Committee on notice whether

for the greater good the witness should be required to testify and 62

given immunity or whether he should be excused from testlfying-

However the discretionary power to grant the immunity is not vested

in the Attorney General bumiddott lies with the body conducting the investigation

If the proceeding is one before one of the Houses of Congress then

a majority vote of the members present is necessary Under S 16

if it is a proceeding before a committee two thirds of the members

must vote to grant the tmmunity In that event the tvothirds vote

must include at least two members of each of the two political parties

having the largest representation on such committee The House Bill

does not provide for notice to the Attorney General of the proposed

grant of immunity The Senate Bill provides for one weeks notice to

the Attorney General of the proposal but if the latter fails or reshy

fuses to assent to grant of immunity it may be conferred by majority

vote of either House It is hoped that this legislation will only be

resorted to where full diseloaure by witnesses is deemed of greater

tmportance than the possibility of punishing them for past offenses

By permitting one or several criminals to escape prosecution the

larger public peril contained in a gang of criminals or in their

leaders may be uncovered and the guilty brought to justice

The legislative proposals mentioned have much to commend them

In my opinion these bills would better achieve their purposes it they

required the concurrence of the Attorney General 1n the granting of any

immunity to a witness by a Joint Congressional Committee or either Heuse

committee or by Congress The Attorney General 1s the chief legal

officer of the Government of the United States As Buch it 1s his

responsibility to prosecute persons who offend the criminal laws of the

United states This responsibility must be coupled w1th adequate

authority to permit its discharge It would seem to be more advisable

for the Attorney General who has immediate knowledge of a criminals

background and propensities to decide whether immunity should be

granted for such a person To allow the Attorney General to participate

in the ultimate decision aa to whether immunity should be granted would

not impair Congressional investigatIons in the fields of internal

security crime and corruption Nor would it discourage witnesses

from providing information of importance to the investigation if the

Attorney Generals permission vas required before immunity was granted

On the other hand if these Bills were enacted in their present

form they might subject members of Congress to undue pressures for

granting immunity to criminals who are ineligible to receive it Also

they cuuld very easily cause embarrassment to Congress by tmped1ng or

blocking prosecutions planned by the Department of Justice on any matter 63

even incidentally testified to upon these 1nvestigations

The unfortunate experience which Congress had as far back as 1857 64

in granting immunity without concurrence of the Attorney General - should

~each that a similar course of action may be marked by eveD greater

failure today_ The witness might readily turn this division of authority

between Congress and the Department of Justice to his advantage by

obtaining an ~unity from the legislative committee or from Congress

over the objection of the Attorney General Thereafter he would be

free to testify concerning a broad area Of activities without fear that

he could be held to account criminally for other violations however

unrelated to the matter under investigation

Thus for example a Congreas1onal Committee or Congress might

furnish immunity to a person to obtain his testimony about his illicit

traffic in slot machine opercltlons between states This person may also

be guilty either of espionage or subversion or of selling narcotics to

youngs cers as to which an indictment is soon to be obtained To foreshy

close prosecution on these more serious crimes the witness would be

glad to volunteer information on his other activities if he knew in

advance that immunity would fallow for all of them Therefore greatest

care must be exercioed in granting immunity and then only upon a fully

informed judgment of all tle facts The Departlnent of Justice would

of course through the Fe~eral Bureau of Investigation the Crtmlnal

and Tax Divisions and the United states Attorneyo I offices be mosmiddott

likely to know the facts and the plans for prosecution Concurrence

by the Attorney General in conferring the immunity would also enable

the Department of Justice to maintuin its responsibility for the proper

administration of the crlminal law

The provision in S 10 for one weeks notice to the Attorney General

of the proposed grant of immunity does not fully cure this Bill of its

weakness in failing to require his affirmative concurrence in every

case Experience indicates that at times the views of the person who

1s charged with prooecut1ng criminals are disregarded by Congressional

Committees For example the successful criminal conviction obtained

by the Department of Justice ot the internal revenue collector in one of

the largest cities was recently nullified because of the action of a

House Committee in holding 1middotr1dely publicized hearings in the district in

65 which the trial subsequently took place These hearings took place

over the strong objection of the Department of Justice thut the pro

posed hearing would be of prejudice to the defendant on the trial

which was about to be initiated and would injure the Governments case

in disclosing its evidence In reversing the convlct1on l Chief Judge

Magruder observed that the character of the defendant was blackened

and discredited as the day of trial approached because of the publicity

invited and stimulated by the Committee over the radio and television

Thu6 1 mere advance notIfication to the Attorney General of a proposed

grant of tmmunity would never be a guarantee that the Committee would

be guided by the views of the Attorney General

S 16 and H R 2737 would also more readily carry out the aim of

obtaining evidence against leaders of subversion and criminal entershy

prisesj if provision for twmunity were granted to obtain testimony

not only before Congressional Committees but likewise before courts

and grand juries

For these reasons it is my opinion that if any measure is to be

enacted~~rmitting the granting of immunity to witnesses before either

House of Congress or its committees it should vest the Attorney General

or the Attorney General acting with the concurren~e of appropriate members

of Congress with the authority to grant such tmmunity and if the test shy

mony is sought for a court or grand jury that the Attorney General alone

be authorized to grant the ilmnunity

There remain for discussion two principal objections to this proshy

posed legislation which may be briefly considered here One objection

1s that when a witneAS is compelled to testify even under the protecshy

tion of immunity from criminal punihment) he is not relieved from

personal disgrace ~~lhich attach~8 to the exposure of his crime The

answer to this objection ia contained in II land mark decision of the 66

Supreme Court in Brown v Wrtlker

The design of tbe constitutional plivilege is not to aid the

witness in vindicating his character but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge If he secure legal jnmllnity from prose-

cution the possible impairment of his good name is a penalty

which it is reasonable b0 should be compelled to pay for the

common good

The reasoning of this decision has never been qU~Gtioned and has 67

only recently been approved by the Sllpreme Court

The other chief objection to the proposed legislation is that while

a witness may receive itmlunity from federal prosecution) he may still

be subject to IJrosecution under ~tate lavl The Supreme Court has held

that this is not a valid objection to federal immunity laws~ since the

self-incrimination clause ln the Fifth Amendment operates ao a l1mitashy68

tion on the federal government only In United states v Murdock the

defendant was indicted for refUSing to answer questions of a revenue

agent relating to ctrt8 in income tax returns The refusal was ba sed on

the plea that hiD answers might 1ncrim1nate him in a state court The

Court said on this point

Moreover it the witness refuses to answer on the ground that

Congress has exceeded its powers or that the inQuiry in lacking in

pertinency he construas the law at his peril If mistake8 his good 55

faith error of law constitutes no defense to fine and imprisonment

Then again it is claimed DY some that a persons election to

remain silent upon the ground of privilege does not necessarily mean

he has anything sinister to hide There are undoubtedly some people of

sincere principle who refl1se to disclose 1flformat1oft to authorized

1nvestigating authorities because of their feeling that ao one has any

right to 1~quire about their beliefs even if germane to the inquiry at 56

bsnd- There are other persons who refuse to answer because they feel

their recollections of events lons past are fee~le and that falsehood

even on trivial or irrelevant matters may subject them to a charge of

perjury There are still others less innocent vho say that coercing

them to testify under pain of contempt resembles the Soviet tactic of

requiring those SUilty not only to pay for but also to prcclatD their 57

guilt shy

~he use of broad tmmunity statutes serves to remove the dansers

mentioned for the iDPocent a~d operates aa an incentive for the guilty

to tell the truth

There are already two proposals pendin8 in Congress which seek to

compel the answer by witnesses at questioDs put to them before Conshy

gressiOl1al Committees grand juries or courts In exchange tor this

compulsory testimony the Witnesses will obtain complete immunity froa

prosecution

58 One Bill is s~ 565 This proposal grants immunity to ~itnesses

before a grand Jury or court of the United States when in the disshy

cretion of th~ Attorney General it is necessary to do so in the public

interest In exchange for this immunity the witness is compelled to

testify and to produce his books papers or recoIds s 565 uses

broad immunity lengtase in stating that the witness shall not be

prosecuted on account of any transaction matter or thing concerning

which he 1s compelled after ela~ing his privilege to testify or

produce evidence

In this respect s 565 is almost ident1cal to the immunity proshy59

vision sustained 8S valid by the Supreme Court e~ far back as 1896-

This Bill does not extend the immunity to witnesses before Congressional

Committees 601 61

There are other Bills pend-ing S 16- middot and H R 27371 with equally

broad immunity authority The Senate has passed its Bill but the House

Bill still awaits action Both these Bills grunt immunity to witnesses

before Congressional Committees but not to witnesses before grand

juries or courts

The proposed Bills are worded so that the witness will not get an

immunity bathU merely by testifying He must first raise specifically

his claim for privilege and thus put the Committee on notice whether

for the greater good the witness should be required to testify and 62

given immunity or whether he should be excused from testlfying-

However the discretionary power to grant the immunity is not vested

in the Attorney General bumiddott lies with the body conducting the investigation

If the proceeding is one before one of the Houses of Congress then

a majority vote of the members present is necessary Under S 16

if it is a proceeding before a committee two thirds of the members

must vote to grant the tmmunity In that event the tvothirds vote

must include at least two members of each of the two political parties

having the largest representation on such committee The House Bill

does not provide for notice to the Attorney General of the proposed

grant of immunity The Senate Bill provides for one weeks notice to

the Attorney General of the proposal but if the latter fails or reshy

fuses to assent to grant of immunity it may be conferred by majority

vote of either House It is hoped that this legislation will only be

resorted to where full diseloaure by witnesses is deemed of greater

tmportance than the possibility of punishing them for past offenses

By permitting one or several criminals to escape prosecution the

larger public peril contained in a gang of criminals or in their

leaders may be uncovered and the guilty brought to justice

The legislative proposals mentioned have much to commend them

In my opinion these bills would better achieve their purposes it they

required the concurrence of the Attorney General 1n the granting of any

immunity to a witness by a Joint Congressional Committee or either Heuse

committee or by Congress The Attorney General 1s the chief legal

officer of the Government of the United States As Buch it 1s his

responsibility to prosecute persons who offend the criminal laws of the

United states This responsibility must be coupled w1th adequate

authority to permit its discharge It would seem to be more advisable

for the Attorney General who has immediate knowledge of a criminals

background and propensities to decide whether immunity should be

granted for such a person To allow the Attorney General to participate

in the ultimate decision aa to whether immunity should be granted would

not impair Congressional investigatIons in the fields of internal

security crime and corruption Nor would it discourage witnesses

from providing information of importance to the investigation if the

Attorney Generals permission vas required before immunity was granted

On the other hand if these Bills were enacted in their present

form they might subject members of Congress to undue pressures for

granting immunity to criminals who are ineligible to receive it Also

they cuuld very easily cause embarrassment to Congress by tmped1ng or

blocking prosecutions planned by the Department of Justice on any matter 63

even incidentally testified to upon these 1nvestigations

The unfortunate experience which Congress had as far back as 1857 64

in granting immunity without concurrence of the Attorney General - should

~each that a similar course of action may be marked by eveD greater

failure today_ The witness might readily turn this division of authority

between Congress and the Department of Justice to his advantage by

obtaining an ~unity from the legislative committee or from Congress

over the objection of the Attorney General Thereafter he would be

free to testify concerning a broad area Of activities without fear that

he could be held to account criminally for other violations however

unrelated to the matter under investigation

Thus for example a Congreas1onal Committee or Congress might

furnish immunity to a person to obtain his testimony about his illicit

traffic in slot machine opercltlons between states This person may also

be guilty either of espionage or subversion or of selling narcotics to

youngs cers as to which an indictment is soon to be obtained To foreshy

close prosecution on these more serious crimes the witness would be

glad to volunteer information on his other activities if he knew in

advance that immunity would fallow for all of them Therefore greatest

care must be exercioed in granting immunity and then only upon a fully

informed judgment of all tle facts The Departlnent of Justice would

of course through the Fe~eral Bureau of Investigation the Crtmlnal

and Tax Divisions and the United states Attorneyo I offices be mosmiddott

likely to know the facts and the plans for prosecution Concurrence

by the Attorney General in conferring the immunity would also enable

the Department of Justice to maintuin its responsibility for the proper

administration of the crlminal law

The provision in S 10 for one weeks notice to the Attorney General

of the proposed grant of immunity does not fully cure this Bill of its

weakness in failing to require his affirmative concurrence in every

case Experience indicates that at times the views of the person who

1s charged with prooecut1ng criminals are disregarded by Congressional

Committees For example the successful criminal conviction obtained

by the Department of Justice ot the internal revenue collector in one of

the largest cities was recently nullified because of the action of a

House Committee in holding 1middotr1dely publicized hearings in the district in

65 which the trial subsequently took place These hearings took place

over the strong objection of the Department of Justice thut the pro

posed hearing would be of prejudice to the defendant on the trial

which was about to be initiated and would injure the Governments case

in disclosing its evidence In reversing the convlct1on l Chief Judge

Magruder observed that the character of the defendant was blackened

and discredited as the day of trial approached because of the publicity

invited and stimulated by the Committee over the radio and television

Thu6 1 mere advance notIfication to the Attorney General of a proposed

grant of tmmunity would never be a guarantee that the Committee would

be guided by the views of the Attorney General

S 16 and H R 2737 would also more readily carry out the aim of

obtaining evidence against leaders of subversion and criminal entershy

prisesj if provision for twmunity were granted to obtain testimony

not only before Congressional Committees but likewise before courts

and grand juries

For these reasons it is my opinion that if any measure is to be

enacted~~rmitting the granting of immunity to witnesses before either

House of Congress or its committees it should vest the Attorney General

or the Attorney General acting with the concurren~e of appropriate members

of Congress with the authority to grant such tmmunity and if the test shy

mony is sought for a court or grand jury that the Attorney General alone

be authorized to grant the ilmnunity

There remain for discussion two principal objections to this proshy

posed legislation which may be briefly considered here One objection

1s that when a witneAS is compelled to testify even under the protecshy

tion of immunity from criminal punihment) he is not relieved from

personal disgrace ~~lhich attach~8 to the exposure of his crime The

answer to this objection ia contained in II land mark decision of the 66

Supreme Court in Brown v Wrtlker

The design of tbe constitutional plivilege is not to aid the

witness in vindicating his character but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge If he secure legal jnmllnity from prose-

cution the possible impairment of his good name is a penalty

which it is reasonable b0 should be compelled to pay for the

common good

The reasoning of this decision has never been qU~Gtioned and has 67

only recently been approved by the Sllpreme Court

The other chief objection to the proposed legislation is that while

a witness may receive itmlunity from federal prosecution) he may still

be subject to IJrosecution under ~tate lavl The Supreme Court has held

that this is not a valid objection to federal immunity laws~ since the

self-incrimination clause ln the Fifth Amendment operates ao a l1mitashy68

tion on the federal government only In United states v Murdock the

defendant was indicted for refUSing to answer questions of a revenue

agent relating to ctrt8 in income tax returns The refusal was ba sed on

the plea that hiD answers might 1ncrim1nate him in a state court The

Court said on this point

58 One Bill is s~ 565 This proposal grants immunity to ~itnesses

before a grand Jury or court of the United States when in the disshy

cretion of th~ Attorney General it is necessary to do so in the public

interest In exchange for this immunity the witness is compelled to

testify and to produce his books papers or recoIds s 565 uses

broad immunity lengtase in stating that the witness shall not be

prosecuted on account of any transaction matter or thing concerning

which he 1s compelled after ela~ing his privilege to testify or

produce evidence

In this respect s 565 is almost ident1cal to the immunity proshy59

vision sustained 8S valid by the Supreme Court e~ far back as 1896-

This Bill does not extend the immunity to witnesses before Congressional

Committees 601 61

There are other Bills pend-ing S 16- middot and H R 27371 with equally

broad immunity authority The Senate has passed its Bill but the House

Bill still awaits action Both these Bills grunt immunity to witnesses

before Congressional Committees but not to witnesses before grand

juries or courts

The proposed Bills are worded so that the witness will not get an

immunity bathU merely by testifying He must first raise specifically

his claim for privilege and thus put the Committee on notice whether

for the greater good the witness should be required to testify and 62

given immunity or whether he should be excused from testlfying-

However the discretionary power to grant the immunity is not vested

in the Attorney General bumiddott lies with the body conducting the investigation

If the proceeding is one before one of the Houses of Congress then

a majority vote of the members present is necessary Under S 16

if it is a proceeding before a committee two thirds of the members

must vote to grant the tmmunity In that event the tvothirds vote

must include at least two members of each of the two political parties

having the largest representation on such committee The House Bill

does not provide for notice to the Attorney General of the proposed

grant of immunity The Senate Bill provides for one weeks notice to

the Attorney General of the proposal but if the latter fails or reshy

fuses to assent to grant of immunity it may be conferred by majority

vote of either House It is hoped that this legislation will only be

resorted to where full diseloaure by witnesses is deemed of greater

tmportance than the possibility of punishing them for past offenses

By permitting one or several criminals to escape prosecution the

larger public peril contained in a gang of criminals or in their

leaders may be uncovered and the guilty brought to justice

The legislative proposals mentioned have much to commend them

In my opinion these bills would better achieve their purposes it they

required the concurrence of the Attorney General 1n the granting of any

immunity to a witness by a Joint Congressional Committee or either Heuse

committee or by Congress The Attorney General 1s the chief legal

officer of the Government of the United States As Buch it 1s his

responsibility to prosecute persons who offend the criminal laws of the

United states This responsibility must be coupled w1th adequate

authority to permit its discharge It would seem to be more advisable

for the Attorney General who has immediate knowledge of a criminals

background and propensities to decide whether immunity should be

granted for such a person To allow the Attorney General to participate

in the ultimate decision aa to whether immunity should be granted would

not impair Congressional investigatIons in the fields of internal

security crime and corruption Nor would it discourage witnesses

from providing information of importance to the investigation if the

Attorney Generals permission vas required before immunity was granted

On the other hand if these Bills were enacted in their present

form they might subject members of Congress to undue pressures for

granting immunity to criminals who are ineligible to receive it Also

they cuuld very easily cause embarrassment to Congress by tmped1ng or

blocking prosecutions planned by the Department of Justice on any matter 63

even incidentally testified to upon these 1nvestigations

The unfortunate experience which Congress had as far back as 1857 64

in granting immunity without concurrence of the Attorney General - should

~each that a similar course of action may be marked by eveD greater

failure today_ The witness might readily turn this division of authority

between Congress and the Department of Justice to his advantage by

obtaining an ~unity from the legislative committee or from Congress

over the objection of the Attorney General Thereafter he would be

free to testify concerning a broad area Of activities without fear that

he could be held to account criminally for other violations however

unrelated to the matter under investigation

Thus for example a Congreas1onal Committee or Congress might

furnish immunity to a person to obtain his testimony about his illicit

traffic in slot machine opercltlons between states This person may also

be guilty either of espionage or subversion or of selling narcotics to

youngs cers as to which an indictment is soon to be obtained To foreshy

close prosecution on these more serious crimes the witness would be

glad to volunteer information on his other activities if he knew in

advance that immunity would fallow for all of them Therefore greatest

care must be exercioed in granting immunity and then only upon a fully

informed judgment of all tle facts The Departlnent of Justice would

of course through the Fe~eral Bureau of Investigation the Crtmlnal

and Tax Divisions and the United states Attorneyo I offices be mosmiddott

likely to know the facts and the plans for prosecution Concurrence

by the Attorney General in conferring the immunity would also enable

the Department of Justice to maintuin its responsibility for the proper

administration of the crlminal law

The provision in S 10 for one weeks notice to the Attorney General

of the proposed grant of immunity does not fully cure this Bill of its

weakness in failing to require his affirmative concurrence in every

case Experience indicates that at times the views of the person who

1s charged with prooecut1ng criminals are disregarded by Congressional

Committees For example the successful criminal conviction obtained

by the Department of Justice ot the internal revenue collector in one of

the largest cities was recently nullified because of the action of a

House Committee in holding 1middotr1dely publicized hearings in the district in

65 which the trial subsequently took place These hearings took place

over the strong objection of the Department of Justice thut the pro

posed hearing would be of prejudice to the defendant on the trial

which was about to be initiated and would injure the Governments case

in disclosing its evidence In reversing the convlct1on l Chief Judge

Magruder observed that the character of the defendant was blackened

and discredited as the day of trial approached because of the publicity

invited and stimulated by the Committee over the radio and television

Thu6 1 mere advance notIfication to the Attorney General of a proposed

grant of tmmunity would never be a guarantee that the Committee would

be guided by the views of the Attorney General

S 16 and H R 2737 would also more readily carry out the aim of

obtaining evidence against leaders of subversion and criminal entershy

prisesj if provision for twmunity were granted to obtain testimony

not only before Congressional Committees but likewise before courts

and grand juries

For these reasons it is my opinion that if any measure is to be

enacted~~rmitting the granting of immunity to witnesses before either

House of Congress or its committees it should vest the Attorney General

or the Attorney General acting with the concurren~e of appropriate members

of Congress with the authority to grant such tmmunity and if the test shy

mony is sought for a court or grand jury that the Attorney General alone

be authorized to grant the ilmnunity

There remain for discussion two principal objections to this proshy

posed legislation which may be briefly considered here One objection

1s that when a witneAS is compelled to testify even under the protecshy

tion of immunity from criminal punihment) he is not relieved from

personal disgrace ~~lhich attach~8 to the exposure of his crime The

answer to this objection ia contained in II land mark decision of the 66

Supreme Court in Brown v Wrtlker

The design of tbe constitutional plivilege is not to aid the

witness in vindicating his character but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge If he secure legal jnmllnity from prose-

cution the possible impairment of his good name is a penalty

which it is reasonable b0 should be compelled to pay for the

common good

The reasoning of this decision has never been qU~Gtioned and has 67

only recently been approved by the Sllpreme Court

The other chief objection to the proposed legislation is that while

a witness may receive itmlunity from federal prosecution) he may still

be subject to IJrosecution under ~tate lavl The Supreme Court has held

that this is not a valid objection to federal immunity laws~ since the

self-incrimination clause ln the Fifth Amendment operates ao a l1mitashy68

tion on the federal government only In United states v Murdock the

defendant was indicted for refUSing to answer questions of a revenue

agent relating to ctrt8 in income tax returns The refusal was ba sed on

the plea that hiD answers might 1ncrim1nate him in a state court The

Court said on this point

If the proceeding is one before one of the Houses of Congress then

a majority vote of the members present is necessary Under S 16

if it is a proceeding before a committee two thirds of the members

must vote to grant the tmmunity In that event the tvothirds vote

must include at least two members of each of the two political parties

having the largest representation on such committee The House Bill

does not provide for notice to the Attorney General of the proposed

grant of immunity The Senate Bill provides for one weeks notice to

the Attorney General of the proposal but if the latter fails or reshy

fuses to assent to grant of immunity it may be conferred by majority

vote of either House It is hoped that this legislation will only be

resorted to where full diseloaure by witnesses is deemed of greater

tmportance than the possibility of punishing them for past offenses

By permitting one or several criminals to escape prosecution the

larger public peril contained in a gang of criminals or in their

leaders may be uncovered and the guilty brought to justice

The legislative proposals mentioned have much to commend them

In my opinion these bills would better achieve their purposes it they

required the concurrence of the Attorney General 1n the granting of any

immunity to a witness by a Joint Congressional Committee or either Heuse

committee or by Congress The Attorney General 1s the chief legal

officer of the Government of the United States As Buch it 1s his

responsibility to prosecute persons who offend the criminal laws of the

United states This responsibility must be coupled w1th adequate

authority to permit its discharge It would seem to be more advisable

for the Attorney General who has immediate knowledge of a criminals

background and propensities to decide whether immunity should be

granted for such a person To allow the Attorney General to participate

in the ultimate decision aa to whether immunity should be granted would

not impair Congressional investigatIons in the fields of internal

security crime and corruption Nor would it discourage witnesses

from providing information of importance to the investigation if the

Attorney Generals permission vas required before immunity was granted

On the other hand if these Bills were enacted in their present

form they might subject members of Congress to undue pressures for

granting immunity to criminals who are ineligible to receive it Also

they cuuld very easily cause embarrassment to Congress by tmped1ng or

blocking prosecutions planned by the Department of Justice on any matter 63

even incidentally testified to upon these 1nvestigations

The unfortunate experience which Congress had as far back as 1857 64

in granting immunity without concurrence of the Attorney General - should

~each that a similar course of action may be marked by eveD greater

failure today_ The witness might readily turn this division of authority

between Congress and the Department of Justice to his advantage by

obtaining an ~unity from the legislative committee or from Congress

over the objection of the Attorney General Thereafter he would be

free to testify concerning a broad area Of activities without fear that

he could be held to account criminally for other violations however

unrelated to the matter under investigation

Thus for example a Congreas1onal Committee or Congress might

furnish immunity to a person to obtain his testimony about his illicit

traffic in slot machine opercltlons between states This person may also

be guilty either of espionage or subversion or of selling narcotics to

youngs cers as to which an indictment is soon to be obtained To foreshy

close prosecution on these more serious crimes the witness would be

glad to volunteer information on his other activities if he knew in

advance that immunity would fallow for all of them Therefore greatest

care must be exercioed in granting immunity and then only upon a fully

informed judgment of all tle facts The Departlnent of Justice would

of course through the Fe~eral Bureau of Investigation the Crtmlnal

and Tax Divisions and the United states Attorneyo I offices be mosmiddott

likely to know the facts and the plans for prosecution Concurrence

by the Attorney General in conferring the immunity would also enable

the Department of Justice to maintuin its responsibility for the proper

administration of the crlminal law

The provision in S 10 for one weeks notice to the Attorney General

of the proposed grant of immunity does not fully cure this Bill of its

weakness in failing to require his affirmative concurrence in every

case Experience indicates that at times the views of the person who

1s charged with prooecut1ng criminals are disregarded by Congressional

Committees For example the successful criminal conviction obtained

by the Department of Justice ot the internal revenue collector in one of

the largest cities was recently nullified because of the action of a

House Committee in holding 1middotr1dely publicized hearings in the district in

65 which the trial subsequently took place These hearings took place

over the strong objection of the Department of Justice thut the pro

posed hearing would be of prejudice to the defendant on the trial

which was about to be initiated and would injure the Governments case

in disclosing its evidence In reversing the convlct1on l Chief Judge

Magruder observed that the character of the defendant was blackened

and discredited as the day of trial approached because of the publicity

invited and stimulated by the Committee over the radio and television

Thu6 1 mere advance notIfication to the Attorney General of a proposed

grant of tmmunity would never be a guarantee that the Committee would

be guided by the views of the Attorney General

S 16 and H R 2737 would also more readily carry out the aim of

obtaining evidence against leaders of subversion and criminal entershy

prisesj if provision for twmunity were granted to obtain testimony

not only before Congressional Committees but likewise before courts

and grand juries

For these reasons it is my opinion that if any measure is to be

enacted~~rmitting the granting of immunity to witnesses before either

House of Congress or its committees it should vest the Attorney General

or the Attorney General acting with the concurren~e of appropriate members

of Congress with the authority to grant such tmmunity and if the test shy

mony is sought for a court or grand jury that the Attorney General alone

be authorized to grant the ilmnunity

There remain for discussion two principal objections to this proshy

posed legislation which may be briefly considered here One objection

1s that when a witneAS is compelled to testify even under the protecshy

tion of immunity from criminal punihment) he is not relieved from

personal disgrace ~~lhich attach~8 to the exposure of his crime The

answer to this objection ia contained in II land mark decision of the 66

Supreme Court in Brown v Wrtlker

The design of tbe constitutional plivilege is not to aid the

witness in vindicating his character but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge If he secure legal jnmllnity from prose-

cution the possible impairment of his good name is a penalty

which it is reasonable b0 should be compelled to pay for the

common good

The reasoning of this decision has never been qU~Gtioned and has 67

only recently been approved by the Sllpreme Court

The other chief objection to the proposed legislation is that while

a witness may receive itmlunity from federal prosecution) he may still

be subject to IJrosecution under ~tate lavl The Supreme Court has held

that this is not a valid objection to federal immunity laws~ since the

self-incrimination clause ln the Fifth Amendment operates ao a l1mitashy68

tion on the federal government only In United states v Murdock the

defendant was indicted for refUSing to answer questions of a revenue

agent relating to ctrt8 in income tax returns The refusal was ba sed on

the plea that hiD answers might 1ncrim1nate him in a state court The

Court said on this point

for the Attorney General who has immediate knowledge of a criminals

background and propensities to decide whether immunity should be

granted for such a person To allow the Attorney General to participate

in the ultimate decision aa to whether immunity should be granted would

not impair Congressional investigatIons in the fields of internal

security crime and corruption Nor would it discourage witnesses

from providing information of importance to the investigation if the

Attorney Generals permission vas required before immunity was granted

On the other hand if these Bills were enacted in their present

form they might subject members of Congress to undue pressures for

granting immunity to criminals who are ineligible to receive it Also

they cuuld very easily cause embarrassment to Congress by tmped1ng or

blocking prosecutions planned by the Department of Justice on any matter 63

even incidentally testified to upon these 1nvestigations

The unfortunate experience which Congress had as far back as 1857 64

in granting immunity without concurrence of the Attorney General - should

~each that a similar course of action may be marked by eveD greater

failure today_ The witness might readily turn this division of authority

between Congress and the Department of Justice to his advantage by

obtaining an ~unity from the legislative committee or from Congress

over the objection of the Attorney General Thereafter he would be

free to testify concerning a broad area Of activities without fear that

he could be held to account criminally for other violations however

unrelated to the matter under investigation

Thus for example a Congreas1onal Committee or Congress might

furnish immunity to a person to obtain his testimony about his illicit

traffic in slot machine opercltlons between states This person may also

be guilty either of espionage or subversion or of selling narcotics to

youngs cers as to which an indictment is soon to be obtained To foreshy

close prosecution on these more serious crimes the witness would be

glad to volunteer information on his other activities if he knew in

advance that immunity would fallow for all of them Therefore greatest

care must be exercioed in granting immunity and then only upon a fully

informed judgment of all tle facts The Departlnent of Justice would

of course through the Fe~eral Bureau of Investigation the Crtmlnal

and Tax Divisions and the United states Attorneyo I offices be mosmiddott

likely to know the facts and the plans for prosecution Concurrence

by the Attorney General in conferring the immunity would also enable

the Department of Justice to maintuin its responsibility for the proper

administration of the crlminal law

The provision in S 10 for one weeks notice to the Attorney General

of the proposed grant of immunity does not fully cure this Bill of its

weakness in failing to require his affirmative concurrence in every

case Experience indicates that at times the views of the person who

1s charged with prooecut1ng criminals are disregarded by Congressional

Committees For example the successful criminal conviction obtained

by the Department of Justice ot the internal revenue collector in one of

the largest cities was recently nullified because of the action of a

House Committee in holding 1middotr1dely publicized hearings in the district in

65 which the trial subsequently took place These hearings took place

over the strong objection of the Department of Justice thut the pro

posed hearing would be of prejudice to the defendant on the trial

which was about to be initiated and would injure the Governments case

in disclosing its evidence In reversing the convlct1on l Chief Judge

Magruder observed that the character of the defendant was blackened

and discredited as the day of trial approached because of the publicity

invited and stimulated by the Committee over the radio and television

Thu6 1 mere advance notIfication to the Attorney General of a proposed

grant of tmmunity would never be a guarantee that the Committee would

be guided by the views of the Attorney General

S 16 and H R 2737 would also more readily carry out the aim of

obtaining evidence against leaders of subversion and criminal entershy

prisesj if provision for twmunity were granted to obtain testimony

not only before Congressional Committees but likewise before courts

and grand juries

For these reasons it is my opinion that if any measure is to be

enacted~~rmitting the granting of immunity to witnesses before either

House of Congress or its committees it should vest the Attorney General

or the Attorney General acting with the concurren~e of appropriate members

of Congress with the authority to grant such tmmunity and if the test shy

mony is sought for a court or grand jury that the Attorney General alone

be authorized to grant the ilmnunity

There remain for discussion two principal objections to this proshy

posed legislation which may be briefly considered here One objection

1s that when a witneAS is compelled to testify even under the protecshy

tion of immunity from criminal punihment) he is not relieved from

personal disgrace ~~lhich attach~8 to the exposure of his crime The

answer to this objection ia contained in II land mark decision of the 66

Supreme Court in Brown v Wrtlker

The design of tbe constitutional plivilege is not to aid the

witness in vindicating his character but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge If he secure legal jnmllnity from prose-

cution the possible impairment of his good name is a penalty

which it is reasonable b0 should be compelled to pay for the

common good

The reasoning of this decision has never been qU~Gtioned and has 67

only recently been approved by the Sllpreme Court

The other chief objection to the proposed legislation is that while

a witness may receive itmlunity from federal prosecution) he may still

be subject to IJrosecution under ~tate lavl The Supreme Court has held

that this is not a valid objection to federal immunity laws~ since the

self-incrimination clause ln the Fifth Amendment operates ao a l1mitashy68

tion on the federal government only In United states v Murdock the

defendant was indicted for refUSing to answer questions of a revenue

agent relating to ctrt8 in income tax returns The refusal was ba sed on

the plea that hiD answers might 1ncrim1nate him in a state court The

Court said on this point

Thus for example a Congreas1onal Committee or Congress might

furnish immunity to a person to obtain his testimony about his illicit

traffic in slot machine opercltlons between states This person may also

be guilty either of espionage or subversion or of selling narcotics to

youngs cers as to which an indictment is soon to be obtained To foreshy

close prosecution on these more serious crimes the witness would be

glad to volunteer information on his other activities if he knew in

advance that immunity would fallow for all of them Therefore greatest

care must be exercioed in granting immunity and then only upon a fully

informed judgment of all tle facts The Departlnent of Justice would

of course through the Fe~eral Bureau of Investigation the Crtmlnal

and Tax Divisions and the United states Attorneyo I offices be mosmiddott

likely to know the facts and the plans for prosecution Concurrence

by the Attorney General in conferring the immunity would also enable

the Department of Justice to maintuin its responsibility for the proper

administration of the crlminal law

The provision in S 10 for one weeks notice to the Attorney General

of the proposed grant of immunity does not fully cure this Bill of its

weakness in failing to require his affirmative concurrence in every

case Experience indicates that at times the views of the person who

1s charged with prooecut1ng criminals are disregarded by Congressional

Committees For example the successful criminal conviction obtained

by the Department of Justice ot the internal revenue collector in one of

the largest cities was recently nullified because of the action of a

House Committee in holding 1middotr1dely publicized hearings in the district in

65 which the trial subsequently took place These hearings took place

over the strong objection of the Department of Justice thut the pro

posed hearing would be of prejudice to the defendant on the trial

which was about to be initiated and would injure the Governments case

in disclosing its evidence In reversing the convlct1on l Chief Judge

Magruder observed that the character of the defendant was blackened

and discredited as the day of trial approached because of the publicity

invited and stimulated by the Committee over the radio and television

Thu6 1 mere advance notIfication to the Attorney General of a proposed

grant of tmmunity would never be a guarantee that the Committee would

be guided by the views of the Attorney General

S 16 and H R 2737 would also more readily carry out the aim of

obtaining evidence against leaders of subversion and criminal entershy

prisesj if provision for twmunity were granted to obtain testimony

not only before Congressional Committees but likewise before courts

and grand juries

For these reasons it is my opinion that if any measure is to be

enacted~~rmitting the granting of immunity to witnesses before either

House of Congress or its committees it should vest the Attorney General

or the Attorney General acting with the concurren~e of appropriate members

of Congress with the authority to grant such tmmunity and if the test shy

mony is sought for a court or grand jury that the Attorney General alone

be authorized to grant the ilmnunity

There remain for discussion two principal objections to this proshy

posed legislation which may be briefly considered here One objection

1s that when a witneAS is compelled to testify even under the protecshy

tion of immunity from criminal punihment) he is not relieved from

personal disgrace ~~lhich attach~8 to the exposure of his crime The

answer to this objection ia contained in II land mark decision of the 66

Supreme Court in Brown v Wrtlker

The design of tbe constitutional plivilege is not to aid the

witness in vindicating his character but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge If he secure legal jnmllnity from prose-

cution the possible impairment of his good name is a penalty

which it is reasonable b0 should be compelled to pay for the

common good

The reasoning of this decision has never been qU~Gtioned and has 67

only recently been approved by the Sllpreme Court

The other chief objection to the proposed legislation is that while

a witness may receive itmlunity from federal prosecution) he may still

be subject to IJrosecution under ~tate lavl The Supreme Court has held

that this is not a valid objection to federal immunity laws~ since the

self-incrimination clause ln the Fifth Amendment operates ao a l1mitashy68

tion on the federal government only In United states v Murdock the

defendant was indicted for refUSing to answer questions of a revenue

agent relating to ctrt8 in income tax returns The refusal was ba sed on

the plea that hiD answers might 1ncrim1nate him in a state court The

Court said on this point

65 which the trial subsequently took place These hearings took place

over the strong objection of the Department of Justice thut the pro

posed hearing would be of prejudice to the defendant on the trial

which was about to be initiated and would injure the Governments case

in disclosing its evidence In reversing the convlct1on l Chief Judge

Magruder observed that the character of the defendant was blackened

and discredited as the day of trial approached because of the publicity

invited and stimulated by the Committee over the radio and television

Thu6 1 mere advance notIfication to the Attorney General of a proposed

grant of tmmunity would never be a guarantee that the Committee would

be guided by the views of the Attorney General

S 16 and H R 2737 would also more readily carry out the aim of

obtaining evidence against leaders of subversion and criminal entershy

prisesj if provision for twmunity were granted to obtain testimony

not only before Congressional Committees but likewise before courts

and grand juries

For these reasons it is my opinion that if any measure is to be

enacted~~rmitting the granting of immunity to witnesses before either

House of Congress or its committees it should vest the Attorney General

or the Attorney General acting with the concurren~e of appropriate members

of Congress with the authority to grant such tmmunity and if the test shy

mony is sought for a court or grand jury that the Attorney General alone

be authorized to grant the ilmnunity

There remain for discussion two principal objections to this proshy

posed legislation which may be briefly considered here One objection

1s that when a witneAS is compelled to testify even under the protecshy

tion of immunity from criminal punihment) he is not relieved from

personal disgrace ~~lhich attach~8 to the exposure of his crime The

answer to this objection ia contained in II land mark decision of the 66

Supreme Court in Brown v Wrtlker

The design of tbe constitutional plivilege is not to aid the

witness in vindicating his character but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge If he secure legal jnmllnity from prose-

cution the possible impairment of his good name is a penalty

which it is reasonable b0 should be compelled to pay for the

common good

The reasoning of this decision has never been qU~Gtioned and has 67

only recently been approved by the Sllpreme Court

The other chief objection to the proposed legislation is that while

a witness may receive itmlunity from federal prosecution) he may still

be subject to IJrosecution under ~tate lavl The Supreme Court has held

that this is not a valid objection to federal immunity laws~ since the

self-incrimination clause ln the Fifth Amendment operates ao a l1mitashy68

tion on the federal government only In United states v Murdock the

defendant was indicted for refUSing to answer questions of a revenue

agent relating to ctrt8 in income tax returns The refusal was ba sed on

the plea that hiD answers might 1ncrim1nate him in a state court The

Court said on this point

1s that when a witneAS is compelled to testify even under the protecshy

tion of immunity from criminal punihment) he is not relieved from

personal disgrace ~~lhich attach~8 to the exposure of his crime The

answer to this objection ia contained in II land mark decision of the 66

Supreme Court in Brown v Wrtlker

The design of tbe constitutional plivilege is not to aid the

witness in vindicating his character but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge If he secure legal jnmllnity from prose-

cution the possible impairment of his good name is a penalty

which it is reasonable b0 should be compelled to pay for the

common good

The reasoning of this decision has never been qU~Gtioned and has 67

only recently been approved by the Sllpreme Court

The other chief objection to the proposed legislation is that while

a witness may receive itmlunity from federal prosecution) he may still

be subject to IJrosecution under ~tate lavl The Supreme Court has held

that this is not a valid objection to federal immunity laws~ since the

self-incrimination clause ln the Fifth Amendment operates ao a l1mitashy68

tion on the federal government only In United states v Murdock the

defendant was indicted for refUSing to answer questions of a revenue

agent relating to ctrt8 in income tax returns The refusal was ba sed on

the plea that hiD answers might 1ncrim1nate him in a state court The

Court said on this point

This court ha~ held that immunity against state prosecution is

not essential to the validity of federal statutes declaring that

a witnes3 shall not be excllpoundied from gtring evidence on the

ground that it vTill incriminate him and also that the ladt of

state power to give witnesses protection against federal

prosecution does not defeat a state immunity statute

Similarly a witness befo~e a state tribunal CBnnot refuse to 69

answer because of the threat of federal prosecution - However the

Federal District Court in Ohio recently held i1 Unted States v 70

Di Carlo that the defendant had the right to assert his privilege

because of possible prosecution under state law since the Senate

committee was authorized to investigate violations not only of the lawe 71

of the United States but also of the states M_ The Murdock case was

dtstingJished urlon the ground that the danger of state posecution 1n

that case was remote and uncertain thile in the Di Carlo case the

danger of state proaecutjon WilS imminent and real 72

The ---Di Carlo case has been received -lith mixed commelt It has73

not been followed so far as we k~ow- It appears to be contrary to deshy

cis10ns of co~~rts of appeals which have consistently adhered to the prinshy74

ciples of the Murdock case- In my opinion this decision of a district

court aoes not detract from the binding effect ofthe Supreme Courts deshy

eision in the Murdock case

The Department of Justice will recommend to the Congress in Jlouary

an immunity bill of the type I have descri-ced which protects the const1shy

tutional privileges ot witnesses before Congressional Committees courts

and juries but will at the some time aid materially in stamping out

criminal and subversive activities

Footnote Referet~es to Ad~res El~ited ~------ ___bull

Immunity From Prcsecuticn

Versus

Privilege Agaiust Self-Incrimination

Pittman liThe Colonial and Constitutional History of the

Privilege Against Sel-Incrimiootion 1n Amcicaff 21 Va

L R 763 764 770-773 (1935) Corwin The Supreme

Court I S Corctl~ction of the Self Incrirnination C1ause lf

29 lId~h L R 1 512 (1930) Ap~licability of

Privilege Against Self-Incrimination to Legjslative

y Pittmenf2 at 774

~ ~ining v ~~8ey 211 U S 78 92 (1908)

L Id at 91

~ 34th Ceng 3d sess Globe PI 427 433 1-45 See

Eberling Constitutional Investigations pp 304-315shy

7 Eberling d at 320-323

~I 142 U s 547 (1892) This Act of 1862 revised an old

statute into two new sections by an amendment which

sought to insure that a witness who testified before

a federal grand jt~ or court (R s I 860 (1875raquo or

a Congressional Committee (R S B 859 (1875raquo would

not be later subjected to the use of his testimony in

any criminal proceeding aGainst him Section ~ 860 of

the amendment dealing with grand jurtes and courts came

under attack in Counselman v Hitchcock J supra and was

held to be invalid Since this part of the immunity proshy

vision tailed to accomplish ita purpose Congress repealed

it in 1910 (36 Stat 352 (19l0raquo) Congress apparently felt

that S 859 applying to Congressional Committees was still

of value and left it 1n force to this date (a s I 859

(1875) as amended 52 Stat 943 (1938) 18 usc e3486

(Supp V 1952)j see liThe Privilege Against Self

Incrimination versus Immunity Proposed Statutes 41

Georgetown L J 511 514 (1953) United States v ~

339 U s 323 335-337 (1950)

21 It read in patt as follows

No person shall be prosecuted for or on

account of any transaction matter or thing concerning

which he may testify or produce evidence

Act of Feb 11 1893 c 83 27 stat 443 49 USCA

I 46 See too ~ v United States 337 u S 137 146shy

147 (1949)middot Notet Denying -the Privilege against Self

Incrimination to Public Officers 64 Barv L R 987

988 (1951)

- 101 161 U s 591 (1896)

Shapiro v United St~~ 335 U S 1 6-7 (1948) where various

statutes are collated in the footnote The customary provision

in these statutes provides as follows No person shall be

excused from complying with any requirements ot this section

because of his privilege aga1nst self-incriminationgt but the

immunity provisions of the COmptuBory Testimony Act of

February 11 1893 shall apply with respect to allY 1nd1shy

vidual who specifically claims such pr1Y11ege tt

12 Rapacz ULimiting the Plea of Self-Incr1m1nat1ontl 20 Georgetown

L J 329 353 (1932) see footnote 3 of ~ v Connect~

302 U s 319 326 (1937) NPte liThe Privilege Against Self-

Incrimination the Doctr1ne of Waiver 61 Yale L J 104 110

(1952) middot

~f Palko v Connecticut 302 U s 319 326 (1937)

~ See dissents of Mr Justices Shiras Gray and White in ~ V4

Walker supra 161 U s 630638 Cf dissent of Mr Justice

Black in Ro~ers v United States 340 U s 367 376 (1950)

15 Potts Power of Legislative Bodies to Punish for ContemptU I

74 U of Pa L R 691 780 (1926) L1acos uRights of Witnesses

Before Congressional Committees 33 Boston U L R 337 340

(1953) middot

t6 Liacos Id at 31tl

17 McGeary rlThe DeTelopmen-cs of Congressional Investigative Power ll

p 23 (1940) McGrain v Daughel~l 273 u s 135 (1927)

18 Sinclair v Unfted States~ 279 U s 263 (1929) ~arsba11 v

Unit~~State~ 176 F 2d 473 (nc Cir 1949) 2 Usc ~ 192

(Supp 1950)

19 Ne York City Bar Ass t n Committee on the Bill of Rights Report

on Congressional Committees presented December 14 1948 p 1

gQi Galloway PCong18ss1onal Investigations Proposed Reforms lt

18 U of Chi L R 478 479-481 (1951)

21 Dilliard lICongress1onal Investigations The Role of the Press

18 U of ChL L R 585 J 587 (1951)

22 Edgerton J dissenting in Barsky v United States 167 F 2d

241 252 (nc eir 1948) cert denied 334 U s 843 (1948)

petition for rehearing denied 339 U S 971 (1951)

~3 De Jonge v Oregon 299 U s 353 364 365 (1937)

24 Id

25 6 Richardson lIMes sOges and Papers of the Pres idents t 1 p 23

July 4 1861

26 See United St~~ v ~~phson 165 F 2d 82 (2 Cir 1947)

cert denied 333 u S 838 (1948) Lawson v United states

176 F 2d 49 (nc Cir 1949) cel~ denied 339 u s 934

(1950) Barsty Y ~ited S~ 167 F 2d 241 (DC eir

1948) cert denied 334 u s 843 (1948) MCGrain v Daugherty

273 u s 135 (1927) and cf Rumely v United States J 197

F 2d 166 (DC eir 1952) affd 73 s ct 543 (1953)

JJ B1a~ v ~~ted Sttlt~s 340 u s 159 (1950-)

gsectJ ~~ v United States 31~1 U s 479 (1951) See too

sectingleton v United States 343 U s 944 (1952) Note Recent

Extensions of the Witness Privilege Against Self-Incrim1nationll

53 Col L R 275 (1953)

29 Aiuppa v Un1tc~ states 201 F 2d 287 300 (6 eir 1952)

_I30 Note nMandatory Dismissal of Public Persol1nel and The Privilege

Against Self-Incrimination 101 U ot Pa L R 1190 1191

fn 8 (1953)

31 Brown Be Fassett Loyalty Tests for Admission to the Bar

20 u or Chi L R 480 483 (1953)

32 Garner v Los Angeles Board) 341 u s 716 (1951) Gerende v

Board of Supervisors 341 U s 56 (1951) but com~are Wieman v

Updegraff 341~ U s 83 (1953)

34 See footnote 32

35 PG~ v Boa-roo of Education 31~2 U s 435 (1951)

ID Id at 493

38 Sec 9(h of lihe LalJor Management Rlations Act of 1947 29 USCA

St1Pp III Sec 141 Sec 159(b)

39 ft~rican C~~catons Association v ~uda 339 u S 382 (1950)

sustaining the validity of Sec 9(h) against the challenge that it

violated the First c-lT~nc1tlCiltl Ex Post FtiCto Lals and other iul1dashy

mental rights

40 Executive Order No 10450 issued Aporil zr 1953 (18 F R 2lt89)

41 Executive Orrler No 10491 issued Ocmiddottober 13 1953 (18 F R 6583)

~ Report of Senate Committee on the Judiciary Interlocking Subshy

vcrs ion in Covernmcnt De~rtments II 83d Cong 1st ses5 Juy 30 J

1953 p 21 Being a cOImllunist is not a crime under federal law J

although it is in some states (see Liacos supra note 15 at

375) The Smith Act (18 USC Sec 2385 et seq) mkes advoshy

eating or teaching the violent overthrOf of any goverrment of the

United States or being a member of such a group and kno7ing its

purpose~a federal crime

43 See EaSley v F~cbardsonJ 182 F 2d 46 (DC 1950)J affd by an

evenly diiied court 341 TJ s 918 (1951) 1Etshingto v McGrath

182 F 2d 375 (DC 1950) aff1d 341 U s 923 (1951)j Or~~ v

vIil1ougbby 345 U s 83 91 (1953) Mr Justice Douglas concurring

i~ ~tiFascist Commi~~ v ~~EJ 341 U s 123 -182-183 (1951)

United Public W0rkers v --~1itcbell 330 U s 75 (1947)j Angilly - v

United States 199 F 2d 642) 644 (1950) cf NcAuliffe v rlew

Bedford 155 Mass 216 29 NE 517 (le9~) per Holmes J liThe

petitioner may have a constitutional right to talk politics but

he h(=l~s no constitltioi1al right to be a policezranu (Id at 220

29 NE at 5J7)

44 v1ie~sn _

v UpGegaff middot111 ~

3~middot4 u s 83 (1953) The Court ruleri as

contrry to due process the Cklahoma loyalty oath statute forshy

bidding IJ1l11ic emplo~rment of Persons who belonzea to certain

organizations regarciless of their knowledge of the character of

those oreenizations because of the indiscriminate classification

of lnnocent with kno~vilg activityll (d at 91)

~1 345 u S 83 (1953)middot

46 Id at 90

47 339 u s 3827 412 (1950) sustaininG the non-corJlIlunist affidavit

requirernelt of union leaders under the Taft -Hartley Act

~ Hoffman v United States 341 U s 179 (1951) suggests such

legislation if Congres3 concludes the lleed is great enough

See too Comment The Privilege Against Se1f-Llcriminetion Versus

Lmnurdty Z Proposed Statutes P 41 Gt~orgetom L J 511 (1953)

S Rept 153 on S 16 83d Cone 1st sess ~ 1 ald 2

April 17 1953 Report of Sel1a~~e Commttee on the JudiciaJ J

Interlocking S-lbversion in GOYf11llent Departments tl July 30

1953 83d Cong 1st sess p 50

~ HcfI1nan v Unitet States 341 u s 479 486 (1951)

50 Id U1ited States v ~isman 111 F 2d 260 262 (2 Cir 1950)

51 Note 61 Yale L J 105 109 (1952)

52 Rogers v United States 340 u s 367 375 (1951)

211 See e g Blau v Unjted StaIe~ 340 u s 159 (1950)

-shy54 Note J Co1t3resnic1al Inv estigat1ons--Self-Illcrimimtion Condemneshy

tiOll and Fair Hcar1ngll 22 U of Cinn L R 193 199-200 (1953)

55 See ~ovTn8end v ~~it~~ta~~3 95 F 2d 352 351 (DC Cir 1938)

cert denied 303 u S 664 (1938)

56 Byse TfA Report on the Pennsylvana Loyalty Act 101 U of Fa

L R 480 481-1~84 (1953) Wright Should Teachers Testify

Saturday Review Sept 2o 1953 p 23

57 See Meltzer Required Records The McCarran Act and The Privilege

Against Selfmiddotmiddot Incriminat ion ll 19 U of Chi L R 687 722 (1951)

y 83d Cong 1st Seas 1953 Also known as the Kefauver BUl

59 ~ v ltlalker 161 U S 591 (1896)

sect21 S 16 83d Cong 1st sess 1953 passed the Senate July 9 1953

after extensive debate Cong Ree 8646-8663 July 9 1953shy

S 16 amends B 3486 of Title 18 Sec 3486 presently furnishes

witnesses immunity from prosecution tor testimony before either

House or their Committees It appears to suffer from the same

deficiency present in a similar statute condemned in Counse~an v

Hitchcock 142 u s 547 (1892) S 16 is intended to StWP1y the

omission in the Hitchcock ease by providing not only that a

witness testimony may not be used against him but that such

witness shall be iImnune with respect to lIany transaction mtter

or thing concerning which he has been compelled to testIfy

sect 83d Congo 1st sess 1953

~ S Rept 153 83d Congo 1st sess p 2 (1953)

63 See Comment The Privi1ege Against Self-Incrimination Versus

Immunity Proposed statutes 41 Georgetown L J 511 523 (1953)

64 Supra footnote 7shy

sectif Delanel v ~ed States 199 F 2d 107 (1 Ci~ 1952)

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

- 101 161 U s 591 (1896)

Shapiro v United St~~ 335 U S 1 6-7 (1948) where various

statutes are collated in the footnote The customary provision

in these statutes provides as follows No person shall be

excused from complying with any requirements ot this section

because of his privilege aga1nst self-incriminationgt but the

immunity provisions of the COmptuBory Testimony Act of

February 11 1893 shall apply with respect to allY 1nd1shy

vidual who specifically claims such pr1Y11ege tt

12 Rapacz ULimiting the Plea of Self-Incr1m1nat1ontl 20 Georgetown

L J 329 353 (1932) see footnote 3 of ~ v Connect~

302 U s 319 326 (1937) NPte liThe Privilege Against Self-

Incrimination the Doctr1ne of Waiver 61 Yale L J 104 110

(1952) middot

~f Palko v Connecticut 302 U s 319 326 (1937)

~ See dissents of Mr Justices Shiras Gray and White in ~ V4

Walker supra 161 U s 630638 Cf dissent of Mr Justice

Black in Ro~ers v United States 340 U s 367 376 (1950)

15 Potts Power of Legislative Bodies to Punish for ContemptU I

74 U of Pa L R 691 780 (1926) L1acos uRights of Witnesses

Before Congressional Committees 33 Boston U L R 337 340

(1953) middot

t6 Liacos Id at 31tl

17 McGeary rlThe DeTelopmen-cs of Congressional Investigative Power ll

p 23 (1940) McGrain v Daughel~l 273 u s 135 (1927)

18 Sinclair v Unfted States~ 279 U s 263 (1929) ~arsba11 v

Unit~~State~ 176 F 2d 473 (nc Cir 1949) 2 Usc ~ 192

(Supp 1950)

19 Ne York City Bar Ass t n Committee on the Bill of Rights Report

on Congressional Committees presented December 14 1948 p 1

gQi Galloway PCong18ss1onal Investigations Proposed Reforms lt

18 U of Chi L R 478 479-481 (1951)

21 Dilliard lICongress1onal Investigations The Role of the Press

18 U of ChL L R 585 J 587 (1951)

22 Edgerton J dissenting in Barsky v United States 167 F 2d

241 252 (nc eir 1948) cert denied 334 U s 843 (1948)

petition for rehearing denied 339 U S 971 (1951)

~3 De Jonge v Oregon 299 U s 353 364 365 (1937)

24 Id

25 6 Richardson lIMes sOges and Papers of the Pres idents t 1 p 23

July 4 1861

26 See United St~~ v ~~phson 165 F 2d 82 (2 Cir 1947)

cert denied 333 u S 838 (1948) Lawson v United states

176 F 2d 49 (nc Cir 1949) cel~ denied 339 u s 934

(1950) Barsty Y ~ited S~ 167 F 2d 241 (DC eir

1948) cert denied 334 u s 843 (1948) MCGrain v Daugherty

273 u s 135 (1927) and cf Rumely v United States J 197

F 2d 166 (DC eir 1952) affd 73 s ct 543 (1953)

JJ B1a~ v ~~ted Sttlt~s 340 u s 159 (1950-)

gsectJ ~~ v United States 31~1 U s 479 (1951) See too

sectingleton v United States 343 U s 944 (1952) Note Recent

Extensions of the Witness Privilege Against Self-Incrim1nationll

53 Col L R 275 (1953)

29 Aiuppa v Un1tc~ states 201 F 2d 287 300 (6 eir 1952)

_I30 Note nMandatory Dismissal of Public Persol1nel and The Privilege

Against Self-Incrimination 101 U ot Pa L R 1190 1191

fn 8 (1953)

31 Brown Be Fassett Loyalty Tests for Admission to the Bar

20 u or Chi L R 480 483 (1953)

32 Garner v Los Angeles Board) 341 u s 716 (1951) Gerende v

Board of Supervisors 341 U s 56 (1951) but com~are Wieman v

Updegraff 341~ U s 83 (1953)

34 See footnote 32

35 PG~ v Boa-roo of Education 31~2 U s 435 (1951)

ID Id at 493

38 Sec 9(h of lihe LalJor Management Rlations Act of 1947 29 USCA

St1Pp III Sec 141 Sec 159(b)

39 ft~rican C~~catons Association v ~uda 339 u S 382 (1950)

sustaining the validity of Sec 9(h) against the challenge that it

violated the First c-lT~nc1tlCiltl Ex Post FtiCto Lals and other iul1dashy

mental rights

40 Executive Order No 10450 issued Aporil zr 1953 (18 F R 2lt89)

41 Executive Orrler No 10491 issued Ocmiddottober 13 1953 (18 F R 6583)

~ Report of Senate Committee on the Judiciary Interlocking Subshy

vcrs ion in Covernmcnt De~rtments II 83d Cong 1st ses5 Juy 30 J

1953 p 21 Being a cOImllunist is not a crime under federal law J

although it is in some states (see Liacos supra note 15 at

375) The Smith Act (18 USC Sec 2385 et seq) mkes advoshy

eating or teaching the violent overthrOf of any goverrment of the

United States or being a member of such a group and kno7ing its

purpose~a federal crime

43 See EaSley v F~cbardsonJ 182 F 2d 46 (DC 1950)J affd by an

evenly diiied court 341 TJ s 918 (1951) 1Etshingto v McGrath

182 F 2d 375 (DC 1950) aff1d 341 U s 923 (1951)j Or~~ v

vIil1ougbby 345 U s 83 91 (1953) Mr Justice Douglas concurring

i~ ~tiFascist Commi~~ v ~~EJ 341 U s 123 -182-183 (1951)

United Public W0rkers v --~1itcbell 330 U s 75 (1947)j Angilly - v

United States 199 F 2d 642) 644 (1950) cf NcAuliffe v rlew

Bedford 155 Mass 216 29 NE 517 (le9~) per Holmes J liThe

petitioner may have a constitutional right to talk politics but

he h(=l~s no constitltioi1al right to be a policezranu (Id at 220

29 NE at 5J7)

44 v1ie~sn _

v UpGegaff middot111 ~

3~middot4 u s 83 (1953) The Court ruleri as

contrry to due process the Cklahoma loyalty oath statute forshy

bidding IJ1l11ic emplo~rment of Persons who belonzea to certain

organizations regarciless of their knowledge of the character of

those oreenizations because of the indiscriminate classification

of lnnocent with kno~vilg activityll (d at 91)

~1 345 u S 83 (1953)middot

46 Id at 90

47 339 u s 3827 412 (1950) sustaininG the non-corJlIlunist affidavit

requirernelt of union leaders under the Taft -Hartley Act

~ Hoffman v United States 341 U s 179 (1951) suggests such

legislation if Congres3 concludes the lleed is great enough

See too Comment The Privilege Against Se1f-Llcriminetion Versus

Lmnurdty Z Proposed Statutes P 41 Gt~orgetom L J 511 (1953)

S Rept 153 on S 16 83d Cone 1st sess ~ 1 ald 2

April 17 1953 Report of Sel1a~~e Commttee on the JudiciaJ J

Interlocking S-lbversion in GOYf11llent Departments tl July 30

1953 83d Cong 1st sess p 50

~ HcfI1nan v Unitet States 341 u s 479 486 (1951)

50 Id U1ited States v ~isman 111 F 2d 260 262 (2 Cir 1950)

51 Note 61 Yale L J 105 109 (1952)

52 Rogers v United States 340 u s 367 375 (1951)

211 See e g Blau v Unjted StaIe~ 340 u s 159 (1950)

-shy54 Note J Co1t3resnic1al Inv estigat1ons--Self-Illcrimimtion Condemneshy

tiOll and Fair Hcar1ngll 22 U of Cinn L R 193 199-200 (1953)

55 See ~ovTn8end v ~~it~~ta~~3 95 F 2d 352 351 (DC Cir 1938)

cert denied 303 u S 664 (1938)

56 Byse TfA Report on the Pennsylvana Loyalty Act 101 U of Fa

L R 480 481-1~84 (1953) Wright Should Teachers Testify

Saturday Review Sept 2o 1953 p 23

57 See Meltzer Required Records The McCarran Act and The Privilege

Against Selfmiddotmiddot Incriminat ion ll 19 U of Chi L R 687 722 (1951)

y 83d Cong 1st Seas 1953 Also known as the Kefauver BUl

59 ~ v ltlalker 161 U S 591 (1896)

sect21 S 16 83d Cong 1st sess 1953 passed the Senate July 9 1953

after extensive debate Cong Ree 8646-8663 July 9 1953shy

S 16 amends B 3486 of Title 18 Sec 3486 presently furnishes

witnesses immunity from prosecution tor testimony before either

House or their Committees It appears to suffer from the same

deficiency present in a similar statute condemned in Counse~an v

Hitchcock 142 u s 547 (1892) S 16 is intended to StWP1y the

omission in the Hitchcock ease by providing not only that a

witness testimony may not be used against him but that such

witness shall be iImnune with respect to lIany transaction mtter

or thing concerning which he has been compelled to testIfy

sect 83d Congo 1st sess 1953

~ S Rept 153 83d Congo 1st sess p 2 (1953)

63 See Comment The Privi1ege Against Self-Incrimination Versus

Immunity Proposed statutes 41 Georgetown L J 511 523 (1953)

64 Supra footnote 7shy

sectif Delanel v ~ed States 199 F 2d 107 (1 Ci~ 1952)

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

t6 Liacos Id at 31tl

17 McGeary rlThe DeTelopmen-cs of Congressional Investigative Power ll

p 23 (1940) McGrain v Daughel~l 273 u s 135 (1927)

18 Sinclair v Unfted States~ 279 U s 263 (1929) ~arsba11 v

Unit~~State~ 176 F 2d 473 (nc Cir 1949) 2 Usc ~ 192

(Supp 1950)

19 Ne York City Bar Ass t n Committee on the Bill of Rights Report

on Congressional Committees presented December 14 1948 p 1

gQi Galloway PCong18ss1onal Investigations Proposed Reforms lt

18 U of Chi L R 478 479-481 (1951)

21 Dilliard lICongress1onal Investigations The Role of the Press

18 U of ChL L R 585 J 587 (1951)

22 Edgerton J dissenting in Barsky v United States 167 F 2d

241 252 (nc eir 1948) cert denied 334 U s 843 (1948)

petition for rehearing denied 339 U S 971 (1951)

~3 De Jonge v Oregon 299 U s 353 364 365 (1937)

24 Id

25 6 Richardson lIMes sOges and Papers of the Pres idents t 1 p 23

July 4 1861

26 See United St~~ v ~~phson 165 F 2d 82 (2 Cir 1947)

cert denied 333 u S 838 (1948) Lawson v United states

176 F 2d 49 (nc Cir 1949) cel~ denied 339 u s 934

(1950) Barsty Y ~ited S~ 167 F 2d 241 (DC eir

1948) cert denied 334 u s 843 (1948) MCGrain v Daugherty

273 u s 135 (1927) and cf Rumely v United States J 197

F 2d 166 (DC eir 1952) affd 73 s ct 543 (1953)

JJ B1a~ v ~~ted Sttlt~s 340 u s 159 (1950-)

gsectJ ~~ v United States 31~1 U s 479 (1951) See too

sectingleton v United States 343 U s 944 (1952) Note Recent

Extensions of the Witness Privilege Against Self-Incrim1nationll

53 Col L R 275 (1953)

29 Aiuppa v Un1tc~ states 201 F 2d 287 300 (6 eir 1952)

_I30 Note nMandatory Dismissal of Public Persol1nel and The Privilege

Against Self-Incrimination 101 U ot Pa L R 1190 1191

fn 8 (1953)

31 Brown Be Fassett Loyalty Tests for Admission to the Bar

20 u or Chi L R 480 483 (1953)

32 Garner v Los Angeles Board) 341 u s 716 (1951) Gerende v

Board of Supervisors 341 U s 56 (1951) but com~are Wieman v

Updegraff 341~ U s 83 (1953)

34 See footnote 32

35 PG~ v Boa-roo of Education 31~2 U s 435 (1951)

ID Id at 493

38 Sec 9(h of lihe LalJor Management Rlations Act of 1947 29 USCA

St1Pp III Sec 141 Sec 159(b)

39 ft~rican C~~catons Association v ~uda 339 u S 382 (1950)

sustaining the validity of Sec 9(h) against the challenge that it

violated the First c-lT~nc1tlCiltl Ex Post FtiCto Lals and other iul1dashy

mental rights

40 Executive Order No 10450 issued Aporil zr 1953 (18 F R 2lt89)

41 Executive Orrler No 10491 issued Ocmiddottober 13 1953 (18 F R 6583)

~ Report of Senate Committee on the Judiciary Interlocking Subshy

vcrs ion in Covernmcnt De~rtments II 83d Cong 1st ses5 Juy 30 J

1953 p 21 Being a cOImllunist is not a crime under federal law J

although it is in some states (see Liacos supra note 15 at

375) The Smith Act (18 USC Sec 2385 et seq) mkes advoshy

eating or teaching the violent overthrOf of any goverrment of the

United States or being a member of such a group and kno7ing its

purpose~a federal crime

43 See EaSley v F~cbardsonJ 182 F 2d 46 (DC 1950)J affd by an

evenly diiied court 341 TJ s 918 (1951) 1Etshingto v McGrath

182 F 2d 375 (DC 1950) aff1d 341 U s 923 (1951)j Or~~ v

vIil1ougbby 345 U s 83 91 (1953) Mr Justice Douglas concurring

i~ ~tiFascist Commi~~ v ~~EJ 341 U s 123 -182-183 (1951)

United Public W0rkers v --~1itcbell 330 U s 75 (1947)j Angilly - v

United States 199 F 2d 642) 644 (1950) cf NcAuliffe v rlew

Bedford 155 Mass 216 29 NE 517 (le9~) per Holmes J liThe

petitioner may have a constitutional right to talk politics but

he h(=l~s no constitltioi1al right to be a policezranu (Id at 220

29 NE at 5J7)

44 v1ie~sn _

v UpGegaff middot111 ~

3~middot4 u s 83 (1953) The Court ruleri as

contrry to due process the Cklahoma loyalty oath statute forshy

bidding IJ1l11ic emplo~rment of Persons who belonzea to certain

organizations regarciless of their knowledge of the character of

those oreenizations because of the indiscriminate classification

of lnnocent with kno~vilg activityll (d at 91)

~1 345 u S 83 (1953)middot

46 Id at 90

47 339 u s 3827 412 (1950) sustaininG the non-corJlIlunist affidavit

requirernelt of union leaders under the Taft -Hartley Act

~ Hoffman v United States 341 U s 179 (1951) suggests such

legislation if Congres3 concludes the lleed is great enough

See too Comment The Privilege Against Se1f-Llcriminetion Versus

Lmnurdty Z Proposed Statutes P 41 Gt~orgetom L J 511 (1953)

S Rept 153 on S 16 83d Cone 1st sess ~ 1 ald 2

April 17 1953 Report of Sel1a~~e Commttee on the JudiciaJ J

Interlocking S-lbversion in GOYf11llent Departments tl July 30

1953 83d Cong 1st sess p 50

~ HcfI1nan v Unitet States 341 u s 479 486 (1951)

50 Id U1ited States v ~isman 111 F 2d 260 262 (2 Cir 1950)

51 Note 61 Yale L J 105 109 (1952)

52 Rogers v United States 340 u s 367 375 (1951)

211 See e g Blau v Unjted StaIe~ 340 u s 159 (1950)

-shy54 Note J Co1t3resnic1al Inv estigat1ons--Self-Illcrimimtion Condemneshy

tiOll and Fair Hcar1ngll 22 U of Cinn L R 193 199-200 (1953)

55 See ~ovTn8end v ~~it~~ta~~3 95 F 2d 352 351 (DC Cir 1938)

cert denied 303 u S 664 (1938)

56 Byse TfA Report on the Pennsylvana Loyalty Act 101 U of Fa

L R 480 481-1~84 (1953) Wright Should Teachers Testify

Saturday Review Sept 2o 1953 p 23

57 See Meltzer Required Records The McCarran Act and The Privilege

Against Selfmiddotmiddot Incriminat ion ll 19 U of Chi L R 687 722 (1951)

y 83d Cong 1st Seas 1953 Also known as the Kefauver BUl

59 ~ v ltlalker 161 U S 591 (1896)

sect21 S 16 83d Cong 1st sess 1953 passed the Senate July 9 1953

after extensive debate Cong Ree 8646-8663 July 9 1953shy

S 16 amends B 3486 of Title 18 Sec 3486 presently furnishes

witnesses immunity from prosecution tor testimony before either

House or their Committees It appears to suffer from the same

deficiency present in a similar statute condemned in Counse~an v

Hitchcock 142 u s 547 (1892) S 16 is intended to StWP1y the

omission in the Hitchcock ease by providing not only that a

witness testimony may not be used against him but that such

witness shall be iImnune with respect to lIany transaction mtter

or thing concerning which he has been compelled to testIfy

sect 83d Congo 1st sess 1953

~ S Rept 153 83d Congo 1st sess p 2 (1953)

63 See Comment The Privi1ege Against Self-Incrimination Versus

Immunity Proposed statutes 41 Georgetown L J 511 523 (1953)

64 Supra footnote 7shy

sectif Delanel v ~ed States 199 F 2d 107 (1 Ci~ 1952)

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

26 See United St~~ v ~~phson 165 F 2d 82 (2 Cir 1947)

cert denied 333 u S 838 (1948) Lawson v United states

176 F 2d 49 (nc Cir 1949) cel~ denied 339 u s 934

(1950) Barsty Y ~ited S~ 167 F 2d 241 (DC eir

1948) cert denied 334 u s 843 (1948) MCGrain v Daugherty

273 u s 135 (1927) and cf Rumely v United States J 197

F 2d 166 (DC eir 1952) affd 73 s ct 543 (1953)

JJ B1a~ v ~~ted Sttlt~s 340 u s 159 (1950-)

gsectJ ~~ v United States 31~1 U s 479 (1951) See too

sectingleton v United States 343 U s 944 (1952) Note Recent

Extensions of the Witness Privilege Against Self-Incrim1nationll

53 Col L R 275 (1953)

29 Aiuppa v Un1tc~ states 201 F 2d 287 300 (6 eir 1952)

_I30 Note nMandatory Dismissal of Public Persol1nel and The Privilege

Against Self-Incrimination 101 U ot Pa L R 1190 1191

fn 8 (1953)

31 Brown Be Fassett Loyalty Tests for Admission to the Bar

20 u or Chi L R 480 483 (1953)

32 Garner v Los Angeles Board) 341 u s 716 (1951) Gerende v

Board of Supervisors 341 U s 56 (1951) but com~are Wieman v

Updegraff 341~ U s 83 (1953)

34 See footnote 32

35 PG~ v Boa-roo of Education 31~2 U s 435 (1951)

ID Id at 493

38 Sec 9(h of lihe LalJor Management Rlations Act of 1947 29 USCA

St1Pp III Sec 141 Sec 159(b)

39 ft~rican C~~catons Association v ~uda 339 u S 382 (1950)

sustaining the validity of Sec 9(h) against the challenge that it

violated the First c-lT~nc1tlCiltl Ex Post FtiCto Lals and other iul1dashy

mental rights

40 Executive Order No 10450 issued Aporil zr 1953 (18 F R 2lt89)

41 Executive Orrler No 10491 issued Ocmiddottober 13 1953 (18 F R 6583)

~ Report of Senate Committee on the Judiciary Interlocking Subshy

vcrs ion in Covernmcnt De~rtments II 83d Cong 1st ses5 Juy 30 J

1953 p 21 Being a cOImllunist is not a crime under federal law J

although it is in some states (see Liacos supra note 15 at

375) The Smith Act (18 USC Sec 2385 et seq) mkes advoshy

eating or teaching the violent overthrOf of any goverrment of the

United States or being a member of such a group and kno7ing its

purpose~a federal crime

43 See EaSley v F~cbardsonJ 182 F 2d 46 (DC 1950)J affd by an

evenly diiied court 341 TJ s 918 (1951) 1Etshingto v McGrath

182 F 2d 375 (DC 1950) aff1d 341 U s 923 (1951)j Or~~ v

vIil1ougbby 345 U s 83 91 (1953) Mr Justice Douglas concurring

i~ ~tiFascist Commi~~ v ~~EJ 341 U s 123 -182-183 (1951)

United Public W0rkers v --~1itcbell 330 U s 75 (1947)j Angilly - v

United States 199 F 2d 642) 644 (1950) cf NcAuliffe v rlew

Bedford 155 Mass 216 29 NE 517 (le9~) per Holmes J liThe

petitioner may have a constitutional right to talk politics but

he h(=l~s no constitltioi1al right to be a policezranu (Id at 220

29 NE at 5J7)

44 v1ie~sn _

v UpGegaff middot111 ~

3~middot4 u s 83 (1953) The Court ruleri as

contrry to due process the Cklahoma loyalty oath statute forshy

bidding IJ1l11ic emplo~rment of Persons who belonzea to certain

organizations regarciless of their knowledge of the character of

those oreenizations because of the indiscriminate classification

of lnnocent with kno~vilg activityll (d at 91)

~1 345 u S 83 (1953)middot

46 Id at 90

47 339 u s 3827 412 (1950) sustaininG the non-corJlIlunist affidavit

requirernelt of union leaders under the Taft -Hartley Act

~ Hoffman v United States 341 U s 179 (1951) suggests such

legislation if Congres3 concludes the lleed is great enough

See too Comment The Privilege Against Se1f-Llcriminetion Versus

Lmnurdty Z Proposed Statutes P 41 Gt~orgetom L J 511 (1953)

S Rept 153 on S 16 83d Cone 1st sess ~ 1 ald 2

April 17 1953 Report of Sel1a~~e Commttee on the JudiciaJ J

Interlocking S-lbversion in GOYf11llent Departments tl July 30

1953 83d Cong 1st sess p 50

~ HcfI1nan v Unitet States 341 u s 479 486 (1951)

50 Id U1ited States v ~isman 111 F 2d 260 262 (2 Cir 1950)

51 Note 61 Yale L J 105 109 (1952)

52 Rogers v United States 340 u s 367 375 (1951)

211 See e g Blau v Unjted StaIe~ 340 u s 159 (1950)

-shy54 Note J Co1t3resnic1al Inv estigat1ons--Self-Illcrimimtion Condemneshy

tiOll and Fair Hcar1ngll 22 U of Cinn L R 193 199-200 (1953)

55 See ~ovTn8end v ~~it~~ta~~3 95 F 2d 352 351 (DC Cir 1938)

cert denied 303 u S 664 (1938)

56 Byse TfA Report on the Pennsylvana Loyalty Act 101 U of Fa

L R 480 481-1~84 (1953) Wright Should Teachers Testify

Saturday Review Sept 2o 1953 p 23

57 See Meltzer Required Records The McCarran Act and The Privilege

Against Selfmiddotmiddot Incriminat ion ll 19 U of Chi L R 687 722 (1951)

y 83d Cong 1st Seas 1953 Also known as the Kefauver BUl

59 ~ v ltlalker 161 U S 591 (1896)

sect21 S 16 83d Cong 1st sess 1953 passed the Senate July 9 1953

after extensive debate Cong Ree 8646-8663 July 9 1953shy

S 16 amends B 3486 of Title 18 Sec 3486 presently furnishes

witnesses immunity from prosecution tor testimony before either

House or their Committees It appears to suffer from the same

deficiency present in a similar statute condemned in Counse~an v

Hitchcock 142 u s 547 (1892) S 16 is intended to StWP1y the

omission in the Hitchcock ease by providing not only that a

witness testimony may not be used against him but that such

witness shall be iImnune with respect to lIany transaction mtter

or thing concerning which he has been compelled to testIfy

sect 83d Congo 1st sess 1953

~ S Rept 153 83d Congo 1st sess p 2 (1953)

63 See Comment The Privi1ege Against Self-Incrimination Versus

Immunity Proposed statutes 41 Georgetown L J 511 523 (1953)

64 Supra footnote 7shy

sectif Delanel v ~ed States 199 F 2d 107 (1 Ci~ 1952)

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

34 See footnote 32

35 PG~ v Boa-roo of Education 31~2 U s 435 (1951)

ID Id at 493

38 Sec 9(h of lihe LalJor Management Rlations Act of 1947 29 USCA

St1Pp III Sec 141 Sec 159(b)

39 ft~rican C~~catons Association v ~uda 339 u S 382 (1950)

sustaining the validity of Sec 9(h) against the challenge that it

violated the First c-lT~nc1tlCiltl Ex Post FtiCto Lals and other iul1dashy

mental rights

40 Executive Order No 10450 issued Aporil zr 1953 (18 F R 2lt89)

41 Executive Orrler No 10491 issued Ocmiddottober 13 1953 (18 F R 6583)

~ Report of Senate Committee on the Judiciary Interlocking Subshy

vcrs ion in Covernmcnt De~rtments II 83d Cong 1st ses5 Juy 30 J

1953 p 21 Being a cOImllunist is not a crime under federal law J

although it is in some states (see Liacos supra note 15 at

375) The Smith Act (18 USC Sec 2385 et seq) mkes advoshy

eating or teaching the violent overthrOf of any goverrment of the

United States or being a member of such a group and kno7ing its

purpose~a federal crime

43 See EaSley v F~cbardsonJ 182 F 2d 46 (DC 1950)J affd by an

evenly diiied court 341 TJ s 918 (1951) 1Etshingto v McGrath

182 F 2d 375 (DC 1950) aff1d 341 U s 923 (1951)j Or~~ v

vIil1ougbby 345 U s 83 91 (1953) Mr Justice Douglas concurring

i~ ~tiFascist Commi~~ v ~~EJ 341 U s 123 -182-183 (1951)

United Public W0rkers v --~1itcbell 330 U s 75 (1947)j Angilly - v

United States 199 F 2d 642) 644 (1950) cf NcAuliffe v rlew

Bedford 155 Mass 216 29 NE 517 (le9~) per Holmes J liThe

petitioner may have a constitutional right to talk politics but

he h(=l~s no constitltioi1al right to be a policezranu (Id at 220

29 NE at 5J7)

44 v1ie~sn _

v UpGegaff middot111 ~

3~middot4 u s 83 (1953) The Court ruleri as

contrry to due process the Cklahoma loyalty oath statute forshy

bidding IJ1l11ic emplo~rment of Persons who belonzea to certain

organizations regarciless of their knowledge of the character of

those oreenizations because of the indiscriminate classification

of lnnocent with kno~vilg activityll (d at 91)

~1 345 u S 83 (1953)middot

46 Id at 90

47 339 u s 3827 412 (1950) sustaininG the non-corJlIlunist affidavit

requirernelt of union leaders under the Taft -Hartley Act

~ Hoffman v United States 341 U s 179 (1951) suggests such

legislation if Congres3 concludes the lleed is great enough

See too Comment The Privilege Against Se1f-Llcriminetion Versus

Lmnurdty Z Proposed Statutes P 41 Gt~orgetom L J 511 (1953)

S Rept 153 on S 16 83d Cone 1st sess ~ 1 ald 2

April 17 1953 Report of Sel1a~~e Commttee on the JudiciaJ J

Interlocking S-lbversion in GOYf11llent Departments tl July 30

1953 83d Cong 1st sess p 50

~ HcfI1nan v Unitet States 341 u s 479 486 (1951)

50 Id U1ited States v ~isman 111 F 2d 260 262 (2 Cir 1950)

51 Note 61 Yale L J 105 109 (1952)

52 Rogers v United States 340 u s 367 375 (1951)

211 See e g Blau v Unjted StaIe~ 340 u s 159 (1950)

-shy54 Note J Co1t3resnic1al Inv estigat1ons--Self-Illcrimimtion Condemneshy

tiOll and Fair Hcar1ngll 22 U of Cinn L R 193 199-200 (1953)

55 See ~ovTn8end v ~~it~~ta~~3 95 F 2d 352 351 (DC Cir 1938)

cert denied 303 u S 664 (1938)

56 Byse TfA Report on the Pennsylvana Loyalty Act 101 U of Fa

L R 480 481-1~84 (1953) Wright Should Teachers Testify

Saturday Review Sept 2o 1953 p 23

57 See Meltzer Required Records The McCarran Act and The Privilege

Against Selfmiddotmiddot Incriminat ion ll 19 U of Chi L R 687 722 (1951)

y 83d Cong 1st Seas 1953 Also known as the Kefauver BUl

59 ~ v ltlalker 161 U S 591 (1896)

sect21 S 16 83d Cong 1st sess 1953 passed the Senate July 9 1953

after extensive debate Cong Ree 8646-8663 July 9 1953shy

S 16 amends B 3486 of Title 18 Sec 3486 presently furnishes

witnesses immunity from prosecution tor testimony before either

House or their Committees It appears to suffer from the same

deficiency present in a similar statute condemned in Counse~an v

Hitchcock 142 u s 547 (1892) S 16 is intended to StWP1y the

omission in the Hitchcock ease by providing not only that a

witness testimony may not be used against him but that such

witness shall be iImnune with respect to lIany transaction mtter

or thing concerning which he has been compelled to testIfy

sect 83d Congo 1st sess 1953

~ S Rept 153 83d Congo 1st sess p 2 (1953)

63 See Comment The Privi1ege Against Self-Incrimination Versus

Immunity Proposed statutes 41 Georgetown L J 511 523 (1953)

64 Supra footnote 7shy

sectif Delanel v ~ed States 199 F 2d 107 (1 Ci~ 1952)

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

43 See EaSley v F~cbardsonJ 182 F 2d 46 (DC 1950)J affd by an

evenly diiied court 341 TJ s 918 (1951) 1Etshingto v McGrath

182 F 2d 375 (DC 1950) aff1d 341 U s 923 (1951)j Or~~ v

vIil1ougbby 345 U s 83 91 (1953) Mr Justice Douglas concurring

i~ ~tiFascist Commi~~ v ~~EJ 341 U s 123 -182-183 (1951)

United Public W0rkers v --~1itcbell 330 U s 75 (1947)j Angilly - v

United States 199 F 2d 642) 644 (1950) cf NcAuliffe v rlew

Bedford 155 Mass 216 29 NE 517 (le9~) per Holmes J liThe

petitioner may have a constitutional right to talk politics but

he h(=l~s no constitltioi1al right to be a policezranu (Id at 220

29 NE at 5J7)

44 v1ie~sn _

v UpGegaff middot111 ~

3~middot4 u s 83 (1953) The Court ruleri as

contrry to due process the Cklahoma loyalty oath statute forshy

bidding IJ1l11ic emplo~rment of Persons who belonzea to certain

organizations regarciless of their knowledge of the character of

those oreenizations because of the indiscriminate classification

of lnnocent with kno~vilg activityll (d at 91)

~1 345 u S 83 (1953)middot

46 Id at 90

47 339 u s 3827 412 (1950) sustaininG the non-corJlIlunist affidavit

requirernelt of union leaders under the Taft -Hartley Act

~ Hoffman v United States 341 U s 179 (1951) suggests such

legislation if Congres3 concludes the lleed is great enough

See too Comment The Privilege Against Se1f-Llcriminetion Versus

Lmnurdty Z Proposed Statutes P 41 Gt~orgetom L J 511 (1953)

S Rept 153 on S 16 83d Cone 1st sess ~ 1 ald 2

April 17 1953 Report of Sel1a~~e Commttee on the JudiciaJ J

Interlocking S-lbversion in GOYf11llent Departments tl July 30

1953 83d Cong 1st sess p 50

~ HcfI1nan v Unitet States 341 u s 479 486 (1951)

50 Id U1ited States v ~isman 111 F 2d 260 262 (2 Cir 1950)

51 Note 61 Yale L J 105 109 (1952)

52 Rogers v United States 340 u s 367 375 (1951)

211 See e g Blau v Unjted StaIe~ 340 u s 159 (1950)

-shy54 Note J Co1t3resnic1al Inv estigat1ons--Self-Illcrimimtion Condemneshy

tiOll and Fair Hcar1ngll 22 U of Cinn L R 193 199-200 (1953)

55 See ~ovTn8end v ~~it~~ta~~3 95 F 2d 352 351 (DC Cir 1938)

cert denied 303 u S 664 (1938)

56 Byse TfA Report on the Pennsylvana Loyalty Act 101 U of Fa

L R 480 481-1~84 (1953) Wright Should Teachers Testify

Saturday Review Sept 2o 1953 p 23

57 See Meltzer Required Records The McCarran Act and The Privilege

Against Selfmiddotmiddot Incriminat ion ll 19 U of Chi L R 687 722 (1951)

y 83d Cong 1st Seas 1953 Also known as the Kefauver BUl

59 ~ v ltlalker 161 U S 591 (1896)

sect21 S 16 83d Cong 1st sess 1953 passed the Senate July 9 1953

after extensive debate Cong Ree 8646-8663 July 9 1953shy

S 16 amends B 3486 of Title 18 Sec 3486 presently furnishes

witnesses immunity from prosecution tor testimony before either

House or their Committees It appears to suffer from the same

deficiency present in a similar statute condemned in Counse~an v

Hitchcock 142 u s 547 (1892) S 16 is intended to StWP1y the

omission in the Hitchcock ease by providing not only that a

witness testimony may not be used against him but that such

witness shall be iImnune with respect to lIany transaction mtter

or thing concerning which he has been compelled to testIfy

sect 83d Congo 1st sess 1953

~ S Rept 153 83d Congo 1st sess p 2 (1953)

63 See Comment The Privi1ege Against Self-Incrimination Versus

Immunity Proposed statutes 41 Georgetown L J 511 523 (1953)

64 Supra footnote 7shy

sectif Delanel v ~ed States 199 F 2d 107 (1 Ci~ 1952)

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

See too Comment The Privilege Against Se1f-Llcriminetion Versus

Lmnurdty Z Proposed Statutes P 41 Gt~orgetom L J 511 (1953)

S Rept 153 on S 16 83d Cone 1st sess ~ 1 ald 2

April 17 1953 Report of Sel1a~~e Commttee on the JudiciaJ J

Interlocking S-lbversion in GOYf11llent Departments tl July 30

1953 83d Cong 1st sess p 50

~ HcfI1nan v Unitet States 341 u s 479 486 (1951)

50 Id U1ited States v ~isman 111 F 2d 260 262 (2 Cir 1950)

51 Note 61 Yale L J 105 109 (1952)

52 Rogers v United States 340 u s 367 375 (1951)

211 See e g Blau v Unjted StaIe~ 340 u s 159 (1950)

-shy54 Note J Co1t3resnic1al Inv estigat1ons--Self-Illcrimimtion Condemneshy

tiOll and Fair Hcar1ngll 22 U of Cinn L R 193 199-200 (1953)

55 See ~ovTn8end v ~~it~~ta~~3 95 F 2d 352 351 (DC Cir 1938)

cert denied 303 u S 664 (1938)

56 Byse TfA Report on the Pennsylvana Loyalty Act 101 U of Fa

L R 480 481-1~84 (1953) Wright Should Teachers Testify

Saturday Review Sept 2o 1953 p 23

57 See Meltzer Required Records The McCarran Act and The Privilege

Against Selfmiddotmiddot Incriminat ion ll 19 U of Chi L R 687 722 (1951)

y 83d Cong 1st Seas 1953 Also known as the Kefauver BUl

59 ~ v ltlalker 161 U S 591 (1896)

sect21 S 16 83d Cong 1st sess 1953 passed the Senate July 9 1953

after extensive debate Cong Ree 8646-8663 July 9 1953shy

S 16 amends B 3486 of Title 18 Sec 3486 presently furnishes

witnesses immunity from prosecution tor testimony before either

House or their Committees It appears to suffer from the same

deficiency present in a similar statute condemned in Counse~an v

Hitchcock 142 u s 547 (1892) S 16 is intended to StWP1y the

omission in the Hitchcock ease by providing not only that a

witness testimony may not be used against him but that such

witness shall be iImnune with respect to lIany transaction mtter

or thing concerning which he has been compelled to testIfy

sect 83d Congo 1st sess 1953

~ S Rept 153 83d Congo 1st sess p 2 (1953)

63 See Comment The Privi1ege Against Self-Incrimination Versus

Immunity Proposed statutes 41 Georgetown L J 511 523 (1953)

64 Supra footnote 7shy

sectif Delanel v ~ed States 199 F 2d 107 (1 Ci~ 1952)

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

y 83d Cong 1st Seas 1953 Also known as the Kefauver BUl

59 ~ v ltlalker 161 U S 591 (1896)

sect21 S 16 83d Cong 1st sess 1953 passed the Senate July 9 1953

after extensive debate Cong Ree 8646-8663 July 9 1953shy

S 16 amends B 3486 of Title 18 Sec 3486 presently furnishes

witnesses immunity from prosecution tor testimony before either

House or their Committees It appears to suffer from the same

deficiency present in a similar statute condemned in Counse~an v

Hitchcock 142 u s 547 (1892) S 16 is intended to StWP1y the

omission in the Hitchcock ease by providing not only that a

witness testimony may not be used against him but that such

witness shall be iImnune with respect to lIany transaction mtter

or thing concerning which he has been compelled to testIfy

sect 83d Congo 1st sess 1953

~ S Rept 153 83d Congo 1st sess p 2 (1953)

63 See Comment The Privi1ege Against Self-Incrimination Versus

Immunity Proposed statutes 41 Georgetown L J 511 523 (1953)

64 Supra footnote 7shy

sectif Delanel v ~ed States 199 F 2d 107 (1 Ci~ 1952)

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

66 161 U S 591 60S) 606 (1896) Moreover under 2 useA

~ 193 no witness is privileged to refuse to testify upon the

groundchat his testimony rna] -tend to disgracr~ him or othc~middotTise

render him irfamous See too Dodd 8elf-Incrimination by

Witness Befor~ Congressional COTJidttees ll 11 Fed R D 245 (1951)

67 Smith v United States 337 U S 137 146-147 (1949)

sectsectJ 284 u S 141 J 149 (1931) see also Feldallall v Unted States 332

U s 487 491-492 (1924) ~ v Halke~ 161 U S 591 (1896)

Adamson v California 332 U s 1+6 (1946) 26 Temple L Q 64 68

(1952) 8 Wigmore on Evidence 2258 (3d ed 1940)

69 ~e~c1 v Kp~~ 199 u S 372 (1905)

70 102 F SUppa 5gr (ND Ohio 1952)

71 Senate PesOlution 202 approved May 3 1950 8lst Cong 2nd sess

See Aiuppa v United S~ 201 F 2d 237 (6 Cir 1952)

72 See eg 4 fJ~anford L R 594 (1952) 66 liarv L R 18G (1952)

31 Texas L R 433 (1953) 22 U of Cion L R 193 (1953)

26 Temple L Q 64 (19~2)

73 ~nited St~tea v Pechart 103 F Supp 417 (ND Cal) cites the

Di Carlo csse in a footnote but does not follow it It declares

in accord with the majority rule that The jnclimination must be

with respect to a Federal offense or violation of Federal Law

(Id at 1~13)

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22

~ See United States v Pierre 128 F 2d 979 (2 Cir 1942)

Camarot v ynited States 111 F 2d 243 (3 Clr 1940) cert

denied 311 u S 651 (191jmiddotO) 5lra~~un v United S~ 99 F 2d

746 (9 eire 1938) and see 8 Higmore on Evidence B2258 (3d ed

1940) 26 Temple L Q 64 68 footnote 22