Evening star. [volume] (Washington, D.C.) 1854-1972, 1958-02-01
New Legal Refuge?

INeW EeguI NGIugS!
The case of Harry Sacher, Just de-
cided by the United States Court of APP
peals, turns on rather technical point.
But as sometimes happens, and it is
true of this case, public interest will not
center on the technical issues. Instead,
1t will be focused on suggestion tossed
out rather casually in the dissenting
opinion.
Sacher, a lawyer, was convicted OF
contempt Of Congress for refusing to
tell Senate subcommittee whether he
was Communist, whether he had ever
been Communist, or whether he was
a member of the Lawyers Section of the
Communist Party. The controlling is
sues, under the Supreme Courts decision
last year in the Watkins case, were
whether the subcommittee had author
ity to investigate the subject matter
which led to the questions and whether
1t was made clear to Sacher that the
questions were pertinent to the inquiry.
Five of the appellate judges, in an
opinion written by Judge Burger, de-
cided both questions adversely to Sacher
and voted to uphold his conviction.
Judge Fahy wrote dissenting opinion
in which he was joined by Chief Judge
Edgerton and Judge Bazelon. Judge
Washington wrote separate dissent.
In the course of his dissent Judge
Fahy suggested that man in Sacher's
position might be able to invoke the
protection of the First Amendment,
ROT %1ao1
refusing. to supply obviously self
discriminating" information to the sub
committee. This brought a sharp re-
joinder from Judge Burger, who said:
The short and simple answer to this
Is that every witness who thinks an
answer will or may incriminate him has
an absolute protection in the Fifth
Amendment. Unconsciously, perhaps, the
dissent Judge Fahy's opinion shrinks
from forcing" witness to raise the
Fifth Amendment because some people
may draw dark differences from its use.
Over recent years the frequent employ
ment of the Fifth Amendment has in
the minds of some, brought it into dis
repute. The Fifth Amendment plainly
and pfoperly-was intended as shield
against characterization; the First
Amendment was not The use of the
plying obviously discriminating informal
tor about himself" would be perversion
of the Constitution, needless so long as
the Fifth Amendment stands Should
this perversion be sanctioned, it would
not be long before repeated use Of the
First as haven from determination would
"contaminate" that amendment.
A paraphrase Of this for the benefit
Of the layman would run about as fol-
lows: The Fifth Amendment protects
any witness against Standardization.
To invoke this protection, however, the
witness must state, under oath, that a
truthful answer would tend to incrimi-
nate him. The First Amendment, in this
context, is concerned with freedom of
speech, belief, association, etc. 1t has
nothing to do with Standardization
Judge Burgers remarks are sharp
protest against any judicial trend toward
permitting person who fears incrim-
ination to take refuge in the First
Amendment, and thereby avoid the en-
barraSsment of stating under oath that
he thinks the truth would incriminate
him.
This case probably will be appealed.
If so, the public should be quite inter-
eSted in seeing what, if anything, the
Supreme Court has to say on this point.