The Law of the Land

In the recent Watkins case, the Court of Appeals of the District of Colum- – bia held: 1) If exposure is the purpose – of a question asked by a congressional committee, the witness may properly refuse to answer. 2) Exposure is shown to be the purpose of a partic- ular question asked in 1954 by re- ports of the same committee in earlier _ years that it had exposed Communists, although the hearing at which the question was asked was one of a series on a bill referred to the committee by the House of Representatives. The holding was by a panel of three judges of the Court, headed by Judge Edgerton; Judge Bastian dissented. On February 20 the full Court, com- prising eight judges, vacated the de- cision and announced that the case would be reconsidered at a hearing before all its eight members. -The case obviously raises important issues concerning the power of con- gressional investigation. These issues had been thought to have been put to rest by the Supreme Court decisions in the law suits resulting from the Tea- pot Dome and Daugherty investiga- tions, but have now been reopened. _ Let us compare the present Watkins case with two leading cases of the 1920’s, McGrain v. Daugherty and ‘Sinclair v. United States. The first case concerned Mally S. Daugherty, brother of Harry M. Daugherty, then Attorney General. Mally Daugherty had been called as a witness in an investigation by a Sen- ate committee of the brother’s conduct of his office, but he refused to appear. He was arrested at the resolution of the Senate. The Senate resolution _ providing for the investigation had _ veferred to the Attorney General in highly critical terms, and the resolu- _ tion ordering Mally Daugherty’s ar- _ Test referred to the necessity of his _ testimony for “legislative and other action.” On a writ of habeas corpus, the Federal Court at Cincinnati released _ Mally Daugherty. From “the extreme : Personal cast of the original resolu- IE LAW OF THE LAND : The Watkins Case tions; the spirit of hostility towards the then Attorney General which they breathe; that it was not avowed that legislative action was had in view un- til after the action of the Senate had been challenged; and that the avowal then was coupled with an avowal that other action was had in view” the Court concluded that the “purpose [was] to impeach Harry M. Daugh- erty at the bar of public opinion,” i.e., expose him. This was beyond the power of the Senate, the Court said. Hence the Senate could not require the testimony of Mally S. Daugherty. The Supreme Court reversed. The investigation was in a field of legiti- mate congressional interest because the “powers and duties of the Attorney General .. . are subject to regulation by congressional legislation,” the higher Court asserted. The Senate was therefore entitled to the facts irres- pective of the effect upon Daugherty’s reputation. In the Sinclair case, two years later, a Senate committee questioned Harry F. Sinclair, the oil magnate, concern- ing the Teapot Dome lease. He refused to answer on the ground that the Gov- ernment had brought suits to cancel the lease. It was Sinclair’s theory that the questions were being asked to aid the Government in those suits. The Federal Court in the District of Co- lumbia convicted Sinclair of contempt of Congress and sentenced him to three months imprisonment. The Su- preme Court upheld the conviction. The Committee, it was held, had power to ask the question because it related to the public lands of the United States and, conceding that Congress had no power to inquire in aid of the suits brought to cancel the lease, the con- gressional power was “not abridged because the information sought to be elicited may also be of use in such suits.” Thus in these two cases the Court applied a single test, viz., did the ques- tion relate to a subject upon which Congress had power to legislate? If so, he Saecton was proper ao the act that the information might have fa portance in other connections was ir=_ relevant to the witness’ duty to an- Swer. doubt that the question related to a subject within the congressional power of regulation, viz., Communist infiltra- _ tion of labor unions. The bill upon | which the hearing was held subse- quently was enacted into law. In the Watkins case Whee was no ee = According to Judge Edgerton’s opin- ion, Congress has no power of expo- sure because it has no “powers of law enforcement.” This is a most remarkable and — z ‘Sweeping conclusion. Judge Edgerton reached it without explanation and without citation of authority. It dis- regards the view of such eminent polit- ical scientists as John Stuart Mill, Woodrow Wilson and others that pub- licity is an essential element of the legislative process. Legislation cannot be enacted without the support of public opinion, and lacking informa- tion, public opinion is without the ba- sis to provide support. The relation- ship between publicity, or exposure, and legislation as a matter of political _ a science I shall examine in another Se article. As a matter of law, Judge Edger- ao. ton’s opinion is hard to reconcile with the Daugherty case. Certainly in that case the factor of exposure, as such, was far greater, and the factor of con- templated legislation far less, than in the Watkins case. And in the Sinclair case there was an obvious and im-_ mediate use for the information in connection with specific law enforce- ment proceedings then pending; it had > no relation to a pending bill. Judge Edgerton’s view that the pur- pose of the questions was shown to be a exposure by published reports of the Committee relating to previous in- vestigations seems equally remark- able. Does the assumption by a con- gressional committee that it has a = = power and duty of exposure vitiate — all its future inquiries, even if they relate to pending bills? If not, how is _ a : the Committee’s motive to be deter- ae mined? And when, as is probably the _- usual case, a committee asks a ques- tion with mixed motives, i.e., partlyto inform itself and partly to inform the public, is refusal warranted? Or must

Marcu 21, 1956

CW

About the Author

C. Dickerman Williams

In the recent Watkins case, the Court of Appeals of the District of Colum- – bia held: 1) If exposure is the purpose – of a question asked by a congressional committee, the witness may properly refuse to answer. 2) Exposure is shown to be the purpose of a partic- ular question asked in 1954 by re- ports of the same committee in earlier _ years that it had exposed Communists, although the hearing at which the question was asked was one of a series on a bill referred to the committee by the House of Representatives. The holding was by a panel of three judges of the Court, headed by Judge Edgerton; Judge Bastian dissented. On February 20 the full Court, com- prising eight judges, vacated the de- cision and announced that the case would be reconsidered at a hearing before all its eight members. -The case obviously raises important issues concerning the power of con- gressional investigation. These issues had been thought to have been put to rest by the Supreme Court decisions in the law suits resulting from the Tea- pot Dome and Daugherty investiga- tions, but have now been reopened. _ Let us compare the present Watkins case with two leading cases of the 1920’s, McGrain v. Daugherty and ‘Sinclair v. United States. The first case concerned Mally S. Daugherty, brother of Harry M. Daugherty, then Attorney General. Mally Daugherty had been called as a witness in an investigation by a Sen- ate committee of the brother’s conduct of his office, but he refused to appear. He was arrested at the resolution of the Senate. The Senate resolution _ providing for the investigation had _ veferred to the Attorney General in highly critical terms, and the resolu- _ tion ordering Mally Daugherty’s ar- _ Test referred to the necessity of his _ testimony for “legislative and other action.” On a writ of habeas corpus, the Federal Court at Cincinnati released _ Mally Daugherty. From “the extreme : Personal cast of the original resolu- IE LAW OF THE LAND : The Watkins Case tions; the spirit of hostility towards the then Attorney General which they breathe; that it was not avowed that legislative action was had in view un- til after the action of the Senate had been challenged; and that the avowal then was coupled with an avowal that other action was had in view” the Court concluded that the “purpose [was] to impeach Harry M. Daugh- erty at the bar of public opinion,” i.e., expose him. This was beyond the power of the Senate, the Court said. Hence the Senate could not require the testimony of Mally S. Daugherty. The Supreme Court reversed. The investigation was in a field of legiti- mate congressional interest because the “powers and duties of the Attorney General .. . are subject to regulation by congressional legislation,” the higher Court asserted. The Senate was therefore entitled to the facts irres- pective of the effect upon Daugherty’s reputation. In the Sinclair case, two years later, a Senate committee questioned Harry F. Sinclair, the oil magnate, concern- ing the Teapot Dome lease. He refused to answer on the ground that the Gov- ernment had brought suits to cancel the lease. It was Sinclair’s theory that the questions were being asked to aid the Government in those suits. The Federal Court in the District of Co- lumbia convicted Sinclair of contempt of Congress and sentenced him to three months imprisonment. The Su- preme Court upheld the conviction. The Committee, it was held, had power to ask the question because it related to the public lands of the United States and, conceding that Congress had no power to inquire in aid of the suits brought to cancel the lease, the con- gressional power was “not abridged because the information sought to be elicited may also be of use in such suits.” Thus in these two cases the Court applied a single test, viz., did the ques- tion relate to a subject upon which Congress had power to legislate? If so, he Saecton was proper ao the act that the information might have fa portance in other connections was ir=_ relevant to the witness’ duty to an- Swer. doubt that the question related to a subject within the congressional power of regulation, viz., Communist infiltra- _ tion of labor unions. The bill upon | which the hearing was held subse- quently was enacted into law. In the Watkins case Whee was no ee = According to Judge Edgerton’s opin- ion, Congress has no power of expo- sure because it has no “powers of law enforcement.” This is a most remarkable and — z ‘Sweeping conclusion. Judge Edgerton reached it without explanation and without citation of authority. It dis- regards the view of such eminent polit- ical scientists as John Stuart Mill, Woodrow Wilson and others that pub- licity is an essential element of the legislative process. Legislation cannot be enacted without the support of public opinion, and lacking informa- tion, public opinion is without the ba- sis to provide support. The relation- ship between publicity, or exposure, and legislation as a matter of political _ a science I shall examine in another Se article. As a matter of law, Judge Edger- ao. ton’s opinion is hard to reconcile with the Daugherty case. Certainly in that case the factor of exposure, as such, was far greater, and the factor of con- templated legislation far less, than in the Watkins case. And in the Sinclair case there was an obvious and im-_ mediate use for the information in connection with specific law enforce- ment proceedings then pending; it had > no relation to a pending bill. Judge Edgerton’s view that the pur- pose of the questions was shown to be a exposure by published reports of the Committee relating to previous in- vestigations seems equally remark- able. Does the assumption by a con- gressional committee that it has a = = power and duty of exposure vitiate — all its future inquiries, even if they relate to pending bills? If not, how is _ a : the Committee’s motive to be deter- ae mined? And when, as is probably the _- usual case, a committee asks a ques- tion with mixed motives, i.e., partlyto inform itself and partly to inform the public, is refusal warranted? Or must

Marcu 21, 1956