Earl Warren: Mr. Cardinal, you may continue your argument.
John G. Cardinal: Mr. Chief Justice, may it please the Court. Before the lunch period, I have mentioned that our second disagreement in this case through the courts has been with the testimony of Senator McClellan. Now, Senator McClellan did testify and his testimony date may -- maybe broken down into four general categories. First -- first of which, he testified to the resolutions which in the authorizing resolutions and the rules of procedure that were enacted pursuant thereto, he testified concerning the investigations that the Committee had handled in the past and the recommendations which they had made with special findings relative to certain individuals. He was then permitted to testify by reading the testimony of Investigator Sheridan before the Committee as a corroboration of Sheridan's testimony because Sheridan later did testify to the same things that the Senator read from the Committee record. I might add at this point that the case was tried and conceived by the prosecutor and conceived by the trial court as if it were an attempt on the part of the prosecutor to lay a foundation to show pertinency before the Committee and that can be seen by the evidence which the trial court did let in and asserted throughout the trial and in overruling the objections to the Senator's testimony and in his charge that the relevancy or the pertinency of these documents to the question under inquiry by the Committee was a matter of fact. The evidence before categories of evidence that was offered by Senator McClellan substantially were exclusively for the proof of that element viewed by the prosecution in the trial court as questions of fact. This testimony was offered or admitted over the objection of -- of the defendant and from it the prosecutor cross-examined the -- the petitioner and made the rather derogatory remarks about members of the Teamster's Union a part -- a large part of this argument to the jury. In addition to that, viewing the pertinency irrelevant --
Earl Warren: (Voice Overlap) taken from this hearsay evidence, you're talking about?
John G. Cardinal: I'm sorry Your Honor, I didn't hear that.
Earl Warren: I say, were those remarks derogatory remarks about his associates taken from that hearsay evidence that you've just been telling us about?
John G. Cardinal: Yes. From the special findings as they were set forth in the interim report so-called and the remarks of the -- that were made by Sheridan to the Committee which were then at the trial read into evidence over objection. The -- the crowning thorn of -- of what we think is the objectionable evidence is when the Senator was permitted to testify before the jury that the documents which were the subject of the -- of the subpoena and for which the petitioner had been indicted were in fact and in law pertinent to the investigation of the Committee. In this regard, we feel that the -- the Court treated the pertinency or relevancy question as a matter of fact when in fact it is a matter of law if the trial court were correct, the question of facts should have been submitted to the jury without the conclusions of the -- of the Senator upon that -- that element which should have been in his view a matter of fact for their -- for their determination.
Earl Warren: What position did defense counsel take on at that time on a question of whether this is one of law or one of fact?
John G. Cardinal: There was a question of law and -- there was a general objection to the taking of the testimony of Senator McClellan following his identification of the resolutions.
Earl Warren: No, I meant on submitting -- question of submitting it to the jury or having -- having the court decide it as a matter of law.
Earl Warren: What was the position of defense counsel at the trial?
John G. Cardinal: Well, it was a matter of law. There is nothing in the record to indicate that it said --
Earl Warren: I --
John G. Cardinal: -- that that was brought home to the trial judge.
Earl Warren: Well, there is just -- there's nothing in the record that's --
John G. Cardinal: That's right.
Earl Warren: Yes, yes.
John G. Cardinal: The -- the -- this came up during objections to the admission of Senator McClellan's testimony and a colloquy ensued between the prosecutor and the trial court as to the admission of Senator McClellan's testimony in which the trial courts stated that it was a question of fact and this was a way that should be handled to which an objection was taken, I hasten to add. Your Honor, may I save a few minutes of my time.
Earl Warren: You may. You may Mr. Cardinal. Mr. Medalie.
Richard J. Medalie : Mr. Chief Justice, and may it please the Court. Now, the basic questions in this case concerned the validity of the subpoena and the admissibility of Senator McClellan's testimony but there is a threshold question as to whether the evidence was sufficient to support the conviction evidence be going to knowledge, evidence going to the obstruction itself. And perhaps for the first few minutes of my argument it might be helpful if I discuss the particular elements of this crime of obstructing congressional committee and sketch out some of the bake -- back -- basic background facts concerning the nature of the investigation and the documents involved. Now, the crime of obstructing or endeavoring to obstruct a congressional committee as the Government sees it consists of four elements at least as it concerns this case. The first one is that there must be a duly authorized investigation. Secondly, that the documents or records, the information which the Committee is seeking must be pertinent to the subject matter of the inquiry. Thirdly, the defendant must have committed acts with respect to those documents which in fact constitutes an -- constitute an obstruction or an endeavor to obstruct. And ultimately, he must also be shown to have a specific guilty knowledge, a specific intent to obstruct the inquiry. And it was the Government's contention that all of these elements were proved beyond a reasonable doubt at the trial below. Now, it's clear that the congressional inquiry investigation was properly authorized --
William J. Brennan, Jr.: May I ask --
Richard J. Medalie : Yes.
William J. Brennan, Jr.: -- Mr. Medalie? The statutory language, is this what you have referenced to? The due and proper exercise of the power of inquiry, is that what you mean by duly authorized?
Richard J. Medalie : Yes. Impede the due and proper administration of law under -- oh I'm sorry, down here, the due and proper exercise of the power of inquiry under which such inquiry to being had --
William J. Brennan, Jr.: Well may I ask as to that? What if the Government's burden, the prosecution under this Section in respect of that element?
Richard J. Medalie : I think it must indicate that there was an inquiry and pursuant to the resolution, this inquiry was being carried out in a orderly way of -- if your question relates to the subpoena --
William J. Brennan, Jr.: No, no, I will not --
Richard J. Medalie : It just relates to the inquiry.
William J. Brennan, Jr.: I'm just trying to get --
Richard J. Medalie : Yes.
William J. Brennan, Jr.: Does the Government have a view as to what its burden is if that be an element of the offense?
Richard J. Medalie : Well, this is -- this is a difficult problem because, there is an -- a confusion here perhaps between this statute and the content of Congress statute and the -- and indeed even the perjury statute as far as materiality. I am not sure whether pertinency of the inquiry or pertinency of the documents to the subject matter of the inquiry is an essential element. For example, perhaps all that's necessary is to show that there -- the Committee had reasonable grounds to believe that the documents were -- were pertinent or that there was a reasonable basis for the inquiry without more, it --
William J. Brennan, Jr.: Well, irrespective of that, I take it that this means -- at least this much doesn't it? That the Committee activity involved --
Richard J. Medalie : Yes.
William J. Brennan, Jr.: -- was in connection with something which can be agreed to be or how much conclusion can be reached that that something, that inquiry was an inquiry in the due and proper exercise of the power of inquiry.
Richard J. Medalie : Well, that's right and the Government at trial accepted the burden whether or not it has in fact -- whether or not that burden does exist in fact. It accepted and burdened the requirement to show that the -- the specific inquiries which was carried on were reasonably related, were indeed pertinent to the authorizing resolution of the Congress that what it was doing was pursuant to its lawful powers and indeed that the documents which were sought were in fact pertinent to the subject matter of any of the inquiry.
William J. Brennan, Jr.: Well, may I ask you some (Inaudible) question (Voice Overlap)?
Richard J. Medalie : Yes.
William J. Brennan, Jr.: Now, is the determination whether or not the particular inquiry to which this effort to get these papers related was a due and proper exercise of power of inquiry, a question of law or of fact?
Richard J. Medalie : I believe it's a question of law.
William J. Brennan, Jr.: That is for the judge.
Richard J. Medalie : It is for the judge and we have not -- we have not contested for example the -- this holding -- the holding of this Court in Sinclair or its reaffirmation in Braden that pertinency in -- in its total scope is a question of law for the judge to decide.
William J. Brennan, Jr.: And was it handled in this case as a question of law?
Richard J. Medalie : Oh, well, certain aspects of it were. Maybe it would help if I pointed out in the charge. At page 294, the judge does say, “The Congress is within its powers and was within its powers and function to conduct inquiries and investigate into the subjects upon which this is power by the constitution to legislate and it was acting within the scope of its powers and conducting an inquiry in respect of unlawful activities in Labor, Management Relations.” Then it does go on, however, and say that inquiries are required to have reasonable relation to the subject and so on. Then, on page 302 -- I'm sorry 3 --
Earl Warren: Then does it go on beyond that -- or it says on purpose of such inquiry investigation and -- and charge the jury that it must find on that issue?
Richard J. Medalie : Yes. I'm just re -- indicating that.
Earl Warren: Oh, oh, you're going through that, (Voice Overlap).
Richard J. Medalie : On page 303 and 304 --
Earl Warren: I see.
Richard J. Medalie : -- it then comes and says in addition to proving that the defendant he faced etcetera has required that the Government prove that the records and so on were relevant to the inquiry of the Committee. And then on 304, the Court says to the judge -- it says to the jury, it will be for you to say from the evidence of the subject whether the sending of the gifts by the Joint Council 41 to public officials and so on was a type of practice relevant to the inquiry investigation and whether defendant with knowledge and purpose of the relevant and -- of the Committee in the relevancy of the names, of the recipients' gifts and so on, withheld the names from the Christmas list. So, in fact -- well, let me put it this way. As a matter of law, the question of pertinency is for the judge to determine as a matter of law according to Sinclair and Braden. In the present case, at least part of the question of pertinency and I must admit that the major part, the relationship of the documents to the specific entry was submitted to the jury as a question of fact. And perhaps, even though we're out of order in argument, I -- first we should clear this up because this involves two -- two questions really. First of all, the question in regard to Senator McClellan's testimony as related to the issue of pertinency whether it was within the discretion of the judge in the absence of objection to allow the jury to hear the question of pertinency or in all the testimony which went to pertinency. And then you have a second question namely even if it is not -- or even if it is within the discretion of the judge to allow the jury to hear it, is it also within the discretion of the judge to submit that this question of pertinency to the jury in the absence of objection. And perhaps, I should turn to that now because it probably is concerning you and let's try and -- a couple of this problem. The question of -- first of all as I mentioned, it is a matter of law to be determined. But while Senator McClellan was testifying, and indeed throughout the whole trial although there were specific and general objections to various portions of this testimony, there was no objection to his presenting any evidence as to pertinency to the jury as such. You can look through the record in vain for these objections. And we take the position that in the absence of the objection there, the petitioner cannot -- should not be able to raise the objection here before the Court and indeed considering the Braden case, which of course was precisely the reverse situation in which the petitioner said, “It should be submitted to the jury rather than the judge.” This Court did point out in the opinion Mr. Justice Stewart that he did not raise an objection. But to be sure, he went on to say that even so as a matter of law, it was handled correctly. In addition, however, and this -- we now come to one of the peculiarities of the statute namely that pertinency isn't by -- specific words in -- injected into the statute and isn't in fact -- and related obstruction of justice statutes when you -- a statute when you're dealing with impeding a witness, the concept of pertinency has no place. I mean you have to make sure of is that the -- the person is to be a witness in one way.
William J. Brennan, Jr.: Well -- but I suppose Mr. Medalie, this would be true if one corruptly impedes on inquiry which has not in the due and proper exercise to the power of inquiry there'd be no offense under the statute, could they?
Richard J. Medalie : Well, I -- I would agree with you or at least the Government at trial undertook this burden and I certainly will not contest it here. But peculiarly enough, in this situation, the testimony or the issues as to pertinency are -- seemed to be so inextricably interrelated with the question of knowledge of the petitioner, the motive of the petitioner, indeed obstruction itself that under these circumstances, we believe that it was not outside the discretion of the justice submitted, especially when you do turn for example to the exact testimony of Senator McClellan because virtually, every word, every sentence of his testimony, not only went to pertinency. It went to knowledge. It went to motive. I think it would have been rather difficult situation for the judge to say right here, you must stop Senator McClellan and we'll hear that testimony outside the -- and dismiss the jury. Now, the next sentence we will bring the jury in, especially I should think in a situation such as we have here where the judge under proper admin -- admonition to the jury with careful explanation to the jury as to precisely the limited purpose for which the Senator's testimony as to pertinency was being presented to the jury. I think it was within his broad discretion in the absence of objection to allow the jury to hear this testimony. And I -- just for -- perhaps the Court will be interested, cite to you pages -- during the testimony itself, pages 31 and 32, 35 and 36, 42 and 43 where this -- you have this constant admonition. Indeed and the judges charged to the jury when he dealt with Senator McClellan's testimony, when he dealt with the issue of pertinency, he specifically told them that this particular testimony relating to this subject was allowed and not for purposes of -- for example corroboration, but it was allowed in purposes only as related to pertinency and knowledge. The prosecutor went out of his way to tell the jury. Don't confuse the issue of -- for example, page 344 is an excellent example on what this really meant. He said now, the purpose for bringing out whether or not Beck, Hoffa, Brennan or Dorfman or anyone else had a bad reputation. Isn't that so that it will reflect in anyway on the defendant or it shouldn't. The reason as he goes on to show is that it would have a direct relationship to motive and as it had a relationship to pertinency itself.
Earl Warren: Is that in the argument or in the offer of proof?
Richard J. Medalie : No. This was in the argument to the jury but in the -- oh well, let me show you the offer of proof then.
Earl Warren: No, I -- I -- I just want (Voice Overlap) --
Richard J. Medalie : Yes. No, it wasn't the argument to the jury.
Earl Warren: I just -- it wasn't.
Richard J. Medalie : In the offer of proof at pages 31 and 32, 35, 36, 42, and 43.
Earl Warren: The reason I was asking because I understood counsel to say that this hearsay testimony was used by the prosecutor for purposes other than pertinency and --
Richard J. Medalie : No.
Earl Warren: -- in his presentation to the jury.
Richard J. Medalie : No. Perhaps there was a little confusion here because of a certain problem of -- at page 335, when he discussed Mr. Sheridan's testimony, he says, “The purpose again of reading the testimony was not only to corroborate Mr. Sheridan's specific testimony. It was to show the Senate was interested in these two documents and so on." I should point out that this was a mistake by the -- of court reporter at page 386 of the record. The court reporter in a special -- in a special deposition in which both sides ask questions stated that beginning at line 21 of the record as the transcription reads, the purpose again in reading the testimony was not only to corroborate Mr. Sheridan's specific testimony. It should read the purpose again and this is the prosecutor saying, “Reading that testimony was not in any way to corroborate Mr. Sheridan's specific testimony. It was going to the question of pertinency and that alone.” So, here we have as I say careful explanation, careful admonition to the jury and in the situation in the absence of objection where these issues are inextricably interrelated. I do not believe that it was outside the discretion of the judge to allow the jury to hear it. Now, we do come to the second problem namely whether it was within the discretion of the judge to allow the jury to have decided the question of pertinency because indeed that is precisely what the judge did. Again, interestingly enough, absolutely no objection by the other side. Indeed -- now, there came time -- and I refer to pages 386 and 387 of the record. There came a time when both sides presented requests to the court and the Government requested the court to decide as a matter of law that these documents were pertinent to the inquiry. And the petitioner did not request that he decide the documents were not pertinent. Indeed, petitioner made no statement whatsoever as to how the issue of pertinency should be decided whether by judge or by jury. And indeed, at page 386 when the judge finally decides the question -- finally decides which request to grant and which request not to. He decides that he's going to submit the issue of pertinency to the court -- I mean to the jury. And again, no objection, no exception by the petitioner and all --
Earl Warren: Is that stated to counsel or --
Richard J. Medalie : Yes it is. As a matter of fact, they had -- as this indicated, they had a -- a conference in which they discussed it at length. I take it at least the indication is from the record about the request and they were fully aware of what request were being granted or rejected, no objection by the petitioner or whatsoever. And finally, after the charge was made, the charge in which the issue of pertinency was submitted to the jury at page 307 of the record, you can see and again, I think it maybe well to even quote it here, “That is all”, says the judge, "I intended to say to the jury, are there any matters you feel I may have inadvertently misstated." Mr. Kiernan, that's the Government counsel, "Nothing Your Honor." And Mr. Knachel, "I have no suggestions Your Honor." And then down below, counsel was -- were requested whether they wish to take exceptions to the charge and Mr. Knachel again said, “The defense has nothing Your Honor. No exception, no objection, whatsoever.” So here again, it is not -- not only should petitioner not be allowed to present this objection now before the court. But it seems to me that throughout the record itself, there is an indication of a calculated trial tactic of having this particular issue of pertinency, it precisely presented to the jury. And why is that? Because petitioner obviously knew or could surmise that the judge would never have held that these documents were not pertinent to the inquiry. And so what did he have to lose? Indeed, he had everything to gain by allowing the jury. He could hope to capitalize on whatever confusion this would've presented. In fact, this Court in Johnson versus United States, 318 U.S. stated, “We cannot permit an accused to elect -- to pursue one course at the trial and then when that has proved to be unprofitable to insist on appeal that the course which he rejected at the trial be reopened to him.” And indeed, we go further and say that there could not have been any prejudice by having this issue submitted because as I will now indicate, these documents were in fact pertinent to this nature, to the subject matter of the inquiry as a matter of law, no judge -- no judge, a reasonable judge could possibly find that they were not. And as a result, what actually happened was that the Government had one more obstacle to overcome in order to convince the jury that petitioner Presser had obstructed the lawful inquiry of the Committee.
Earl Warren: When was this issue first raised Mr. Medalie?
Richard J. Medalie : As to -- I'm sorry.
Earl Warren: The one who we've just -- you've just discussed.
Richard J. Medalie : Oh, whether it should be presented to the jury -- I take it, it was raised when the Government submitted its request to the judge that he decide the issue as a matter of law. Now --
Earl Warren: No, I meant -- I meant when -- when did the -- the petitioner --
Richard J. Medalie : Oh!
Earl Warren: -- first raised it as having been error?
Richard J. Medalie : No, I think it was on judge -- he may have raised it on the motion for N.O.V. and if not -- if not, then at the Court of Appeals' level. And mind you, if one reads the briefs and especially the reply brief of petitioner, this issue of presenting the issue of pertinency to the jury is not really prop -- it's not even a question before this Court properly speaking and it was not raised, question as one on certiorari. It is brought in within the context of whether -- in the whole context of whether that Senator McClellan's testimony was admissible and then he goes into the discussion of pertinency and goes into the question whether pertinency should've been submitted to the trial. Now, we don't of course base our argument on that, whether it was or was not raised before this Court as proper question in certiorari. But it -- it's interesting that it is almost a -- an afterthought or it's riding on an objection which petitioner seems to indicate is more important whether the McClellan's testimony was admissible at all. Therefore, in the absence of objection especially under the circumstances of this -- of the relationship of pertinency to knowledge and so on, I do not think that one could really say it was an error for the judge to have exercised his broad discretion in allowing the jury to decide this issue especially in the absence of objection from petitioner. And I suppose we do come to this question, although the Government doesn't consider it a serious question, whether indeed the documents were pertinent to the inquiry. I think perhaps it might help to under -- to know what was the scope of McClellan investigation as I -- first of all, McClellan Committee had been set up under resolution to conduct an investigation into criminal and other improper practices in labor management relations and to see whether there were any changes that had to be that our laws had to be changed in any way. And as we all know, the Labor Management Reporting and Disclosing Act was passed in due course. Now, as an integral part of this investigation, the McClellan Committee undertook an inquiry into the question of misappropriation and misuse of the union funds, both operating funds and welfare funds in order to enrich union officials or to influence political and public figures. And it also inquired into the possible domination of various unions by people outside the labor movement. Now, among the union's investigator was the Teamsters Union and among those specific inquiries which undertook with regard to the Teamsters and which is specifically relevant here was the relationship of Teamsters Union officials to racketeers or reputed racketeers. And secondly the relationship present and past between the Teamsters Union and former Senator George Bender who was set up as the head of the so-called Clean Up or Anti-Racketeering Committee which the Teamsters Union had set up in order to investigate purportedly the corruption and improper practices of its own officials. What the --
John M. Harlan II: (Inaudible)
Richard J. Medalie : He was a Sen -- I believed 1954, he was a Senator still at -- in 1955, 1956 I believe he -- he was probably defeated. The --
John M. Harlan II: (Inaudible)
Richard J. Medalie : Yes, he was a Senator. The -- the date of the Champagne Bucket gifts was 1955. And he was a Senator at that time and I should perhaps add that he was in charged of a -- an investigation into Teamster activities among other things --
John M. Harlan II: On behalf of the Senate?
Richard J. Medalie : On behalf of the Senate at that time.
John M. Harlan II: (Inaudible)
Richard J. Medalie : Yes -- yes, well -- perhaps I should clarify this. In 1955, when the gifts of Champagne Buckets were given to the various people involved Beck, Hoffa, Bender, Dorfman, etcetera. He was a Senator at the time. He was appointed in August of 1958 and mind you this in -- the incident which we charged was the obstruction of Congress occurred in September 9th, somewhere between September 9th and September 13th, 1958. In August of 1958 as I understand it, Senator Bender, former Senator -- now, former Senator Bender was appointed as head of this Clean Up Committee --
Potter Stewart: He was not a Senator in 1958 --
Richard J. Medalie : No, no, he was not a Senator (Voice Overlap) --
Potter Stewart: Defeated in 1956 --
Richard J. Medalie : He was defeated in 1956 --
Potter Stewart: -- by Frank Lausche.
Richard J. Medalie : That's right. He had received the gift, the Champagne Bucket or at least the invoice indicates that the Champagne Bucket had been purchased for Senator Bender in 1955. In 1958, he was appointed there as the Head of the Committee and as a result -- oh, and as in -- Hoffa himself, Jimmy Hoffa himself had set up this Committee, this Clean Up and Anti-Racketeering Committee and appointed Senator Bender as the -- the Head of the Committee. As a matter of fact, I might point out that in hearings in 1959, July 1959 before the select Committee which is the hearings of the 86 -- 86th Congress first session. This is part 55 with the hearings at page 19420 Senator Bender testifies as to his relationship and as to his -- well, the results of the Bender Com -- of Bender Committee. I should point out I believe that according to press reports in December of 1958, Mr. Hoffa reported to his constituency, the union that as a result of preliminary studies by the Bender Committee, Bender had found or the Committee had found, the Commission had found that there was no information as to the possible influx of racketeers or the possible corruption of local officials. But Bender continued, however, during that period of time and as late as July 1959, he was still Head of this Commission, the time. And -- and this information was brought up in the hearing but be that as it may these two was -- was the subject of the inquiry. And we now come of course to whether these documents were pertinent to the inquiry. I'm not sure that one even has to go to discuss it because the documents consisted of the mutilated invoice, the concealed and withheld enveloped saying Christmas gift on it and the memorandum with the names which had recently been on the invoice in addition to other names plus notation of gift or money and so on. In other words, the invoice itself had shown that union funds, I suppose a (Inaudible) from the union members were being used to buy expensive Christmas gifts for union leaders that is, Beck, Hoffa and Brennan for political --
Potter Stewart: (Voice Overlap)
Richard J. Medalie : No relation Mr. Justice. For political leaders of former Senator George -- well, at that time, Senator George Bender but now former or at the time of the trial, former Senator and Chairman of the Republican Party in Ohio, Mr. Bliss, and finally Mr. Paul Dorfman who had been -- who had been identified by Senator McClellan as a -- generally a person of (Inaudible). Now mind you, none of these identifications went to the truth or went to the -- the facts of whether or not these people were -- had bad reputation and that wasn't the point of the testimony. The point of the testimony was that since the Committee was interested in the relationship of the union to the -- to reputed racketeers or people of bad repute since they were concerned with the misuse of union funds for political leaders, for union officials, since they were really concerned with the relationship of Senator Bender. Clearly, this information was pertinent because from this information they could have at least begun other inquiries. It indicated that as early as 1955, if not earlier, the union was giving expensive gift, Christmas gifts, $100 Champagne Buckets to these people among others. Now, whether or not this was improper that too was not a question. That's in this case. It may very well have been proper. Maybe there was a reasonable explanation for giving these gifts just as one gives a gift to a secretary or so. And maybe so, I doubt it but maybe so but that was not the question in the case. The question was, what was the relationship? How far could they follow up this relationship by the information they got from the documents in order to find -- find whether union funds are being misappropriated to find what -- whether there was in fact going to be or whether there was now a clean up of the corruption within the Teamsters Union. So that to say that none of this information was pertinent seems to go fly in the face of the actual -- the actual facts allowed, the actual facts in the record.
Speaker: (Inaudible)
Richard J. Medalie : That's right.
Speaker: (Inaudible)
Richard J. Medalie : Yes. It's -- I have to say directly or pertinency of the question in a contempt of Congress case. I suppose -- or at least the Government took this position at trial and I think it's -- it's a very legitimate one that the --
Speaker: (Inaudible)
Richard J. Medalie : -- issue of pertinency here is precisely the same as the issue of pertinency in those two instances of perjury and contempt of Congress. And of course, there can be no question either as to the evidence that Mr. Presser was indeed aware of what the Committee was doing and what it was after at pages 11 to 12 of our brief. We go into great detail summarizing the evidence then, that he did indeed have a very clear motive to destroy these documents because his relationship to any of these people named on the doc -- in the documents, in the invoice and so on would what have a direct bearing as to his whole role with respect to certain -- respect to the practices in the Teamsters Union. And finally, there certainly was clear evidence and indeed last Thursday when Mr. Justice Stewart asked whether there's any question that Mr. Presser had possession of these documents, there just wasn't any question. And indeed when Presser attempted to raise an alibi, the alibi that during these four days, September 9th through 13th, he was in Washington conferring with Mr. Hoffa, the Government introduced testimony to show that on September 11th, September 10th and 11th, Mr. Hoffa put in person-to-person, long distance telephone calls to Cleveland to Mr. Presser. And Mr. Presser accepted these calls and discussed various matters for a period of time with him. So there's no question that he was in Cleveland. That he attempted an alibi which failed and that he indeed have possession. And therefore, though the evidence was certainly circumstantial that he in fact defaced, mutilated the document or withheld it, it was pretty clear in light of the motive and all the other evidence --
William J. Brennan, Jr.: Tell me Mr. Medalie, was Senator McClellan's testimony offered any question except that of -- you've been using the word purpose, an equal purpose.
Richard J. Medalie : Yes. Senator McClellan's testimony went to -- well, I suppose we could put it up into four categories, perhaps more. But essentially, the pertinency of the specific inquiries to the general investigation, secondly the pertinency of the documents to the subject matter of the invest -- of the particular inquiries. Thirdly the knowledge of the petitioner and as far as the knowledge is concerned to be sure Senator McClellan couldn't say, “Well, I know for a fact the petitioner knew this.” But what he did testify to is whether various matters of the Committee were public knowledge that the -- there -- that the unions had been put on notice that they were in -- that the Committee was investigating various things. And I suppose to try and prove the element of knowledge, you first have to show at least what it was knowledge -- of what it was knowledge and -- and so that McClellan's testimony did -- Senator McClellan's testimony did go to knowledge in that respect. And ultimately, certainly did testify to motive of petitioner because by merely stating what the -- what the nature of the inquiry was by stating what the nature of these particular documents were, and what Mr. Hoffa's promised has been as far as cleaning up. Certainly, one can infer motive and then later on of course when Mr. Presser himself testified he admitted knowledge of various things which we point out at pages 11 to 12.
William J. Brennan, Jr.: Well, now on what ground was the objection, if any was taken --
Richard J. Medalie : Well, the objection --
William J. Brennan, Jr.: -- to Senator McClellan's testimony?
Richard J. Medalie : Well, there were various objections. There were three specific objections and the rest were all general. Let's see. His objections were mostly -- you can -- the testimony is at pages 16 to 48 of the record. Now his only specific objections were three in number that it was unnecessary for the Senator to testify with respect to the committee's authorizing resolutions because those documents, "spoke for themselves." That's at record page 19. Secondly that the testimony beyond the authorizing resolutions was self-serving and that's at page 20. And thirdly, that any testimony as to information concerning Senator Bender which the Chairman had received was hearsay. That's at pages 31 and 32. And of course, these were answered by the -- by the Committee for example with respect to this hearsay, to be sure it was hearsay but the importance was not whether in fact it was true but how -- what was the impetuous be -- behind the Committee's decision to start investigating the relationship of Bender to the Teamsters Union and so on. Beyond that everything was general objection --
William J. Brennan, Jr.: But I -- you told us I think that at no time was it said, "Well if the testimony is to be taken, it should be taken out of the presence of --
Richard J. Medalie : Never, never. And as a matter of fact, the petitioners were -- or its counsel's particular actions with respect to their request and charge would seem to indicate to me at least sir, that this was a calculated trial tactic. If we can't have it one way, we're going to try to have another. And if we lose on this then we can raise the objection again, saying to the Court I suppose this goes to substantial rights of the individual should be noticed as clear error. Well, certainly it isn't clear error. It was far from it. It was hardly prejudicial. It was the type of thing that he would have -- perhaps even more prejudice if the judge made the decision because they were as a matter of law pertinent. So, as far as Senator McClellan's testimony, we don't believe there really is any question as to admissibility. Perhaps, in all candor, can I say, there was an instance, the Sheridan testimony, in which the Senator read from Sheridan's testimony and this is objected to by petitioner because he said this corroborated Sheridan's subsequent testimony. But first of all when she point out that the court and the prosecuting attorney over and over again said to the jury, “Mind you, this is not for corroboration, not at all. We're trying to show that Mr. Schaffer”, who was the investigator, “Had authority to go to Cleveland to carry on this investigation in relationship with Bender." Then he had authority to examine documents that in fact it -- and it also goes to the Committee's interest in and its knowledge of what precisely happened at the time. Now, perhaps it's true that per -- this testimony need not have been read. But the fact that it was read within the -- it seems to me is not prejudicial error. Especially one should note that in all essential respects, Sheridan's testimony and Presser's testimony as to the -- what happened during those -- that period of time. The first visit on the 9th and the second visit on the 13th that they essentially were the same. Oh, they disagreed as to for example whether Sheridan -- whether Presser refused to give it because he wanted the documents Photostated or whether he wanted a receipt. But that wasn't the essential thing. The important thing was that Sheridan went there. That he asked to see the documents that Presser indeed allowed him to see the documents. That when he requested the documents for some reasons or other, Presser said, “Could you come back at another time?” And Sheridan said, “Yes, I'll return within a few days.” And during that period of time, the documents were destroyed.Corroborate if anything, Sheridan corroborated Presser. Presser corroborated Sheridan as to the essential points. And since there was careful admonition that McClellan, Senator McClellan's testimony relating to Sheridan had no corroborative effect, I should think it would not have been error. It should have -- it should've been within his broad discretion.
Hugo L. Black: (Inaudible)
Richard J. Medalie : Well the -- but-- but the thing is the resolution isn't. This -- though it may be the source it is not the -- from reading the -- you're not -- you don't understand just precisely how you put these -- these few lines of the resolution into operative effect. And certainly, there has never been any question up to now that a testimony from a Committee had -- is -- is inadmissible. I've point out for example the Douche case, although that of course was not a jury trial. It was a trial to the judge. But even so, there was -- a member of the Committee was allowed to testify as to precisely what happened. Beyond that, the resolution itself would never had given any information as to what the specific inquiries were relating to misuse and misappropriation, relating to Senator Bender, relating to the racketeer's and so on. I --
Speaker: (Inaudible)
Richard J. Medalie : Well, the --
Speaker: (Inaudible)
Richard J. Medalie : Yes.
Speaker: (Inaudible)
Richard J. Medalie : Yes.
Speaker: (Inaudible)
Richard J. Medalie : That's right.
Speaker: (Inaudible)
Richard J. Medalie : Yes.
Speaker: (Inaudible)
Richard J. Medalie : Yes.
Speaker: (Inaudible)
Richard J. Medalie : That's right. Presumably to --
Speaker: (Inaudible)
Richard J. Medalie : Well, the relevancy surely -- for example, to I suppose -- reinforce what the words of the authorizing resolution did in fact say that -- that the extra practice was for these investigators to go out and to examine documents. For example, there's nothing in the resol -- the resolution discussing the setting up of field offices. But surely that was a practice which the Committee engaged in. There was nothing as to the -- sort of relationship of the general counsel to the investigators, only in the resolution saying that there shall be a general counsel, that too was necessary in order to trace out the background. And besides that getting back to what Mr. Justice Brennan pointed out at the very beginning of my argument that since the crime does discuss what is the -- the offense deals with duly authorized and proper inquiry of Congress, I think that it should -- the jury should not be allowed to decide this question or the judge to decide this question in a vacuum of -- of -- here is the document which they're operating under. Never mind what -- what the realities are, never mind how they do in fact operate, never mind the flesh and blood of it. This is the authorizing resolution. This is what happened. You make your decision. I think it was perfectly proper and hardly prejudicial to allow this type of testimony.
Speaker: (Inaudible)
Richard J. Medalie : Oh, there were.
Speaker: (Inaudible)
Richard J. Medalie : That's right. That's --
Speaker: (Inaudible)
Richard J. Medalie : That's right.
Speaker: (Inaudible)
Richard J. Medalie : Quite right but none of them, none of them went to whether or not this should have been presented to the -- to the jury as opposed to the --
Speaker: (Inaudible)
Richard J. Medalie : Yes.
Speaker: (Inaudible)
Richard J. Medalie : Yes, that's right. Oh, I agree, it's saying that this was prejudicial because you shouldn't be allowed -- well, certainly for example the identification of the names on the documents where -- was it rather important thing I should think. It's -- its one thing for example if you had eight names which were the listings of secretaries.
Speaker: (Inaudible)
Richard J. Medalie : Well, I suppose it didn't make any difference at all and of course at that particular discussion in the evidence was ultimately stricken from the record or say -- the judge said, “Well, this is irrelevant.” When they -– when they disc -- were discussing Mr. Kennedy and his -- his being a general counsel and going into all the related details, finally the judge has said that the objection would be sustained to that. And I'll have the page number immediately on that. But none of that, none of that testimony was prejudicial -- it may have been superfluous, it may have been superfluous but not prejudicial, I think it was. But example when they did get in --
Speaker: (Inaudible)
Richard J. Medalie : I suppose to trace the background of the Committee.
Speaker: (Inaudible)
Richard J. Medalie : For example, on page 23, well perhaps no difference in all because the Judge said -- well, Mr.Knachel said, “Objection Your Honor, may I have the objections to this line of inquiry at page 23.” And the judge said, “Yes, I don't see how material it is who the counsel was, whether he was Mr.Kennedy, whether he was now in the employ of the Government at the present time and in what capacity.” In general, Senator --
Speaker: (Inaudible)
Richard J. Medalie : Page 23, could you state what the duties of Committee counsel were? I think that the duties of committee counsel was rather important although --
Speaker: (Inaudible)
Richard J. Medalie : No, they con -- they -- they continued discussing the duties of Committee counsel and the duties of the investigators. Certainly, it was important to know in details that the investigators had the right to go to request the documents -- to look at the documents, to examine them even prior to subpoena. This was the -- and -- and indeed in this situation Mr. Presser allowed them to look through the files before the specific request for the four particular files in which the documents existed, were actually with -- before Sheridan made the request and before the request was refused for -- for reasons other than imperfection or defects in subpoena and so on. As matter of fact, we now -- I -- I suppose we do come to this question of the validity of the subpoena which is the remaining --
Earl Warren: (Inaudible)
Richard J. Medalie : Yes, sir.
Earl Warren: (Inaudible)
Richard J. Medalie : That was in relation to the interim report. That's at -- beginning at page 25 of the record and in page 27 --
Earl Warren: (Inaudible)
Richard J. Medalie : Well, the purpose again -- the purpose again was to show pertinency of the inquiries, what were they looking for. And -- and the -- first of all, Senator McClellan said, “Yes, among the unions that were -- we were investigating was the Teamsters Union. And secondly, there were recommendations, legis -- general legislative recommendations.” And at page 27, he goes into little summary, first of all legislation to regulate and control pension and health and welfare funds, secondly, legislation to regulate and control union funds, thirdly, legislation to ensure union democracy, and then the fourth and fifth are not that pertinent to the specific instances here. Now, certainly that was pertinent to whether or not a union can pay a $100 each for Christmas gifts for particular people, especially union officials, public officials, people who had reputed unsavory reputations. The problem of union democracy certainly was involved here. What right did the union have to pay these funds? Thus they had amassed from the -- from the union members without -- without any discussion of it with the union members, and so on, and so forth. So that -- and mind you, this interim report was not allowed to go to the jury whatsoever. I'm just trying to find the -- here, at page 213 of the record, the Court specifically excluded the interim report and as a matter of fact, you'll notice that the interim report, that portion of it which related to what Senator McClellan said is -- begins at page 30 -- 388 of the record. Now, that is merely put in there for the -- for this Court to examine. It was not presented to the jury. None of the information and among which was -- were specific references to Presser himself, none of this was allowed to go to the jury. The only thing that was allowed to go the jury was the testimony as to the legislative recommendations and the testimony as to which unions they're investigating and what's Senator McClellan said. The -- the interim report was excluded though at page 213. So the jury had none of this to prejudice them in anyway. Now, we do come to the issue of the subpoena and whether the chances that the subpoena was signed in blank by the Senator and filled in by the investigators in Cleveland, vitiated the conviction, excused the deliberate destruction of the documents. We discussed this at great length in our brief and I think that in a few minutes remaining, what I would like to really discuss is this issue on the assumption, even -- or even assuming that the subpoena is invalid, even assuming that the defect in the subpoena was sufficient to invalidate the subpoena. The question here was, is a subpoena necessary, necessary for the crime of obstructing the Committee inquiry. Now, in cases arising under the related obstruction of justice statute, involving the intimidation and impeding of witnesses, courts have uniformly said --
Byron R. White: Before the court (Inaudible) --
Richard J. Medalie : Pardon.
Byron R. White: Before court.
Richard J. Medalie : Oh yes before courts, that's right or judicial officers. This is 18 U.S.C. 1503. And why -- why I used these cases instead of 1505 is because there are very few 1505 cases, (Inaudible) case which is recently decided in the Court of Appeals is about the only one that I know of in addition to this. I suppose the real reason is because in many instances the people who do in fact obstruct a Committee inquiry obstructed in the course of the testimony so that instead the Congress cites them for contempt and these cases therefore arise here under the contempt statute rather than under the obstruction of the Committee inquiry. At any rate, in those cases under 1503 is being uniformly stated by the courts and an offense maybe committed even though the witness involved is not under a subpoena. All that is required say the courts is that the witness have an expectation that he is going to be called before court or judicial officer or even further that only the court or the judicial officer have an expectation that it's going to call the witness. And we cite cases at brief the page 24 in all --
Hugo L. Black: Any cases from this Court on that, I don't (Voice Overlap) --
Richard J. Medalie : No. Well, there are cases. There are certainly, there was a Russell case, there is the McCracken case. Those cases involved subpoenas and I should in all candor admit that we have not been able to find a case which involved on the facts of the case itself that no subpoena was involved. Now, the courts have uniformly stated when the set down the broad principles. And I especially refer this Court to Smith versus United States of 274 Federal at page 253 which we cited in our brief. This -- that among the -- the sort of operating principles relating to 1503, a subpoena is not necessary. The witness need not be -- under a subpoena. All that is required is that there'd be an expectation that he's going to be called either by himself or by the court or judicial officer.
Felix Frankfurter: How he could be a potential witness?
Richard J. Medalie : Yes, he must be a potential witness. He must -- although this potentiality must, I suppose be communicate because knowledge is a vital -- vital importance. In other words, part and parcel of this expectation that he is going to be a witness must be the knowledge on the part of the person who impedes or intimidates the witness that he is going to be a potential witness or that he is going to be -- or there is an expectation that he will be called.
Felix Frankfurter: That's (Inaudible) by the witness?
Richard J. Medalie : No. I'm -- that -- this is 150 --
Felix Frankfurter: Well, the witness constrcits documents (Inaudible) the non-witness can destroy (Inaudible), is that right?
Richard J. Medalie : No. I think that -- well, we're -- I'm only dealing with this intimidation of witness as itself. When we come to 1505, dealing with obstruction, I would relate it, analogize the witness cases to this by saying that documents need not be under subpoena in order to constitute an obstruction of unlawful inquiry of a Committee of Congress. Let me take an example. Supposing there had been no subpoena in this case, supposing Sheridan under his lawful authority as Senator McClellan testified, supposing he had come to get the -- to investigate, to examine the documents and he arrived to Presser's office and requested these documents and Presser said, “Oh no, you are not going to see these documents, much less take these documents away unless you have a subpoena.” And Sheridan goes and -- to get a subpoena and in their interim, Presser destroys the documents. I cannot believe under the authority of the witness cases as well, it's just common sense that Presser should have been allowed to have the license to deliberately destroy the documents merely because a subpoena didn't exist at the time.
Felix Frankfurter: How about documents be given to Sheridan -- to Sheridan (Inaudible) --
Richard J. Medalie : (Inaudible)
Felix Frankfurter: -- not imposed by Presser (Inaudible) expectation of -- of (Inaudible)?
Richard J. Medalie : Well I suppose that -- that then -- then Sheridan would have been (Voice Overlap) --
Felix Frankfurter: He's not (Inaudible)?
Richard J. Medalie : No. Mind you, I'm not -- you don't have to be a potential witness to have an obstruction of a congressional committee. 1503 deals with witnesses among other things, and the intimidation of witnesses by third parties, and what I'm doing is analogizing that to the destruction of documents by particular -- or whether the documents need be under subpoena.
William J. Brennan, Jr.: What -- what you're saying is under 1503 the fellow intimidated must be a witness.
Richard J. Medalie : That's right or it have an expect --
William J. Brennan, Jr.: But not under this statute.
Richard J. Medalie : That's right. That's right, because we're not dealing -- all we're saying is that there must be an obstruction of a lawful inquiry and -- and that obstruction may take place in any number of -- of -- of ways. I'll go -- well, one step further I suppose as to say supposing there had been a subpoena which was invalid on its face instead of being issued to Joint Council 41, was issued to Joint Council 23 and instead of William Presser as President, it was served on -- well, they thought it was to be served on John Jones. Well here, being invalid on its face, Presser's says to Sheridan, “No, you can't have it until there is valid subpoena.” I can't believe that this would give a license to Presser to destroy the documents before a valid subpoena was issued.
Felix Frankfurter: How can you tell that a subpoena is invalid on its face since -- because (Inaudible) --
Richard J. Medalie : You can't -- well of course, here the present case is completely different. The present case, you have a subpoena issued which all parties accept as valid. They operate for six months prior to particular case on the assumption that it's valid. The Joint Council works out a whole -- means by which is going to deliver documents to -- through its accountant to the Cleveland Field Office. The Committee of Congress waives his right to have the Committee -- to have the documents produced --
Felix Frankfurter: Would there be any question on the part of anybody as soon as McClellan (Inaudible) ratified the decision.
Richard J. Medalie : I don't think there would have been and -- and we of course argue that there was a ratification. I think that has to be derived rather than out and out discussion because --
Felix Frankfurter: I didn't -- I just wanted to know.
Richard J. Medalie : No, I don't know.
Felix Frankfurter: (Inaudible)
Richard J. Medalie : No, I don't --
Felix Frankfurter: (Inaudible)
Richard J. Medalie : No.
Felix Frankfurter: (Inaudible)
Richard J. Medalie : No. Supposing for example, he had brought the -- Presser had been subpoenaed to testify and subsequently he was subpoenaed to bring documents with him. And in the Committee room, just before testifying, he suddenly discovers or the things that there is a defect in the subpoena to bring the documents. I can't believe that then he could then in there before all Committee members destroy those records with impunity. This is not what the cases hold.
Felix Frankfurter: (Inaudible) -- invalid subpoena in order to (Inaudible)
Richard J. Medalie : That's right. And it is our -- it is our contention that no subpoena is necessary. Certainly, it is not required by statute. Certainly in any of the analogous cases, a subpoena of a witness before the witness can be impeded or intimidated need not exist.
Hugo L. Black: Suppose this agent had gone down, and told him (Inaudible) and says, “I won't appear without a subpoena.” He had taken a blank out of pocket and written one up and signed it (Inaudible) by the agent?
Richard J. Medalie : In those circumstances, I would say this that he still does not have the right to destroy the documents.
Hugo L. Black: That's why you have to comeback to (Voice Overlap) --
Richard J. Medalie : That's right. He doesn't have the right to destroy it. That what he has is to say, “Well, I question whether this is the -- the process of the Committee.” And the least that we should require of him, the least is for him to appear before the Committee or before a law -- a lawfully authorized subcommittee, or whatever have you and say, “I am appearing here especially and -- and -- and questioning the jurisdiction of this Committee or whatever have you because the subpoena is invalid, because he filled it in. Then at least, this allows the Committee to rectify anything or to say, “Oh, this is a horrible mistake. Mr. Sheridan has been acting outside his authority. You -- we never wanted you at all. You have nothing to do with our particular inquiry.” In other words as Mr. Justice Jackson said in his concurring opinion to the Fleming-Mohawk case, the importance is not whether there is or is not a subpoena or whether it's signed in blank. The importance is that the Committee who's lawful pro -- process it purports to be that the Committee had the right to make the ultimate decision to have a hearing,
Hugo L. Black: You go -- your position requires (Inaudible) to this extent doesn't that there's an agent or any investigating Committee over that goes to a business, a place of business, and says we're investigating you and we want you show papers here as (Inaudible) some of them. He could be tried for obstruction of justice if he threw them away.
Richard J. Medalie : Yes.
Hugo L. Black: You're maybe right. I'm not saying it (Voice Overlap) --
Richard J. Medalie : Well, I -- I would -- I would go -- it qualify that somewhat. Supposing indeed in the -- of course a business, you destroy documents every five years and the Committee says, “In two months, we are conducting investigation now with relationship to us and so. And in two months, we're going to get to your particular corporation or your particular union and we're going to re -- investigate your -- your documents going back 10 years. Therefore, we respectfully request that you save those documents.” I don't believe in those circumstances he can destroy and even if it is the lawful course of business, however, if the Committee says, “In 1962 that we're undertaking a long range investigation.” And in five years from now, we'll get to you, therefore don't destroy documents.” I don't know whether that would or would not (Voice Overlap) --
Hugo L. Black: (Inaudible) when he violates the law.
Richard J. Medalie : I think you have to read into this and to the request, the concept of reasonable request. He -- well, he should -- he certainly knows in this circumstance that these documents were pertinent. He knows that this is what the Committee was --was wanted and desired. They wanted to examine it whether or not the subpoena existed under these circumstances to put these documents beyond the reach of the Committee forever by destroying them. It seems to me to be not within the proper -- it seems to me to be precisely within the scope of the statute. This is precisely what Congress intended to do by promulgating the statute to prevent just this type of obstruction.
John M. Harlan II: Could I ask you a question? Are there some official agencies, administrative agencies for example that have no power to subpoena (Inaudible) life services?
Richard J. Medalie : I'm not sure. I -- it -- I would just venture to say that probably some do not have the right of -- of subpoena.
John M. Harlan II: Well, this statute was would --
Richard J. Medalie : The statute --
John M. Harlan II: -- go on to cover them as well as those that have some --
Richard J. Medalie : Yes, yes because -- the statute covers administrative agencies as well.
John M. Harlan II: I'd like to ask you another question.How many prosecutions, if you know, had there been under this statute as distinguished from the companion statute?
Richard J. Medalie : Well, there only been about two or three at most. This case of course, there was the (Inaudible) case dealing with congressional inquiry. Then there were several others dealing with the administrative agencies and among the cases we cite are -- are -- in our brief are some, but very few. And I think and when you run through the U.S.--
John M. Harlan II: How many cases have reached Court of Appeals level, do you know, under this statute?
Richard J. Medalie : Yes, about -- about three or four again, about three or four. You'll -- that they're all listed except for this (Inaudible) case and -- and the Court of Appeals are here in the U.S. Code annotated.
John M. Harlan II: Are they all cases that -- where subpoenas have been issued?
Richard J. Medalie : I'm not sure. I -- I think so in -- in the situation --
John M. Harlan II: What I'm trying to get at, this question that's raised now, has it ever been litigated under the --
Richard J. Medalie : No, I don't --
John M. Harlan II: -- statute in the Court of Appeals?
Richard J. Medalie : No. I don't believe that this -- well, that -- in this particular -- okay. I don't believe that this particular question of whether this -- you need a subpoena or not has been ever litigated on the facts of the case. There have been many statements by courts in -- in discussing general principles which have in dictum said so and indeed even the dictum in the 1503 cases go this far.
Earl Warren: Perhaps it's like this, never been construed by the state court so far as (Inaudible)?
Richard J. Medalie : As far as I know -- well, I don't know whether state courts have gone there -- have ever gone --
Speaker: (Inaudible)
Richard J. Medalie : I'm just -- probably.
Speaker: (Inaudible)
Richard J. Medalie : Probably so. Of course, there's a venerable history of the obstruction of justice statutes and -- and there are many cases there. But this -- this was brought in relatively late to -- to cure what Congress considered to be a gap in the whole obstruction of justice.
John M. Harlan II: Did the Government concede the invalidity of the subpoena?
Richard J. Medalie : No. We don't concede the invalidity of the subpoena at all and we discussed it in terms of ratification of waiver by the petitioner in the sense that he (Inaudible) -- after the March subpoena had been issued in -- in April, he -- another subpoena was issued in which it says, “The Committee waives the production of documents in Washington that you've delivered to the Cleveland Office.” I think that construing the record as a whole one may find sufficient validity but we do not stand or fall on validity. We say that the subpoena alone is not necessary for the crime of obstruction. And in fact, I suppose prefer to -- to base our argument on this because the flaunting of the law, the flaunting of the lawful process of the -- of the Committee to us is serious enough to go beyond the technical requirements of the subpoena or not a subpoena.
Felix Frankfurter: (Inaudible)
Richard J. Medalie : The Cudahy case, yes.
Felix Frankfurter: The Cudahy case (Inaudible).
William J. Brennan, Jr.: (Inaudible) Cudahy?
Richard J. Medalie : The Cudahy, yes. And then there is the Fleming, yes.
Felix Frankfurter: (Inaudible)
Richard J. Medalie : In Cud --
Felix Frankfurter: (Inaudible)
Richard J. Medalie : Well, they were. Cudahy was a -- a delegation of the subpoena issuing power to a law -- to a reach --
Felix Frankfurter: (Inaudible)
Richard J. Medalie : -- (Inaudible) -- to a subordinate and the Court found that in that situation, there was no basis in the statute for delegation. And in the Fleming case, the Court held that the -- the delegation was allowable under this statute
Felix Frankfurter: (Inaudible)
Richard J. Medalie : No, you can't say. But if it was -- this was allowable and indeed and then Justice Jackson went on to say, the important thing in this is to allow the con --
Felix Frankfurter: (Inaudible)
Speaker: Five-to-four.
Richard J. Medalie : It was five-to-four yes, yes. And -- and of course in this case, we -- we don't at all say that this is a delegation to a subordinate.
Speaker: (Inaudible)
Richard J. Medalie : This is the --
Felix Frankfurter: That issue (Inaudible) --
Richard J. Medalie : In --
Felix Frankfurter: (Inaudible)
Richard J. Medalie : That's -- well, that's right and the subordinate was allowed to issue these subpoenas at will without any -- without any --
Felix Frankfurter: (Inaudible) in terms of McClellan's, the (Inaudible) under the subject of the subpoena (Inaudible)?
John M. Harlan II: And the persons to be --
Richard J. Medalie : And the person --
John M. Harlan II: -- served with the subpoena.
Richard J. Medalie : Well that's right. I -- I should point out -- my time is up and I'll -- but I should point out that the -- the April subpoena which no one questions, the April subpoena which was indeed a lawful process of the Committee with is put in exactly the same terms. The -- the documents it request are exactly the same kinds of documents that are requested in March subpoena, only in the March subpoena joint -- the -- the records asked by for Joint Council and in the April Joint Council Welfare Funds and special other funds. But -- so it would seem that the request for cash disbursing checks and for records and so on, it's a form which the Committee itself must have worked out and which is -- was just an automatic thing to put -- put into this (Inaudible) --
Felix Frankfurter: (Inaudible) the constitutional question, they've got -- the internal management of the Committee had allowed the chairman to entrust the authorization to his (Inaudible) --
Richard J. Medalie : No.
Felix Frankfurter: -- through his question.
Richard J. Medalie : Yes, yes. It -- it is if you get to that point. What they say is that it was a delegation rather than the signing point.
Hugo L. Black: (Inaudible) follows the wealth subpoena or the one that was signed in blank and was filled by the officer, is that right?
Richard J. Medalie : Then I'm not --
Hugo L. Black: (Inaudible)
Richard J. Medalie : Oh, oh. That -- I'm -- I'm sorry. I -- I am not familiar with those (Voice Overlap) --
Hugo L. Black: (Inaudible)
Richard J. Medalie : What was requested for them?
Hugo L. Black: I thought it was both of them.
Richard J. Medalie : Thank you.
Earl Warren: Mr. Cardinal.
John G. Cardinal: There are a few things that I like -- would like to correct, the -- the statements of the Solicitor General on and that is with respect to these two subpoenas that he had mentioned or had made some reference to. There is only one subpoena involved in this case and that's the one that was served on the petitioner in March. Now, there is a reference through cross-examination of Sheridan to another one which was signed in April. But as to that particular subpoena when he was asked if that had been prepared (Inaudible) in Cleveland, he was quite definite. And on page 89 of the record, he says that -- he said that I say that it was prepared in Cleveland so that the reference that we are making some issue out of a subpoena that was in all respects or in some respects invalid and is against another which was in the -- executed in the same way, but which we do not make any issue to is an incorrect statement of the record. I think another thing that has -- has bothered me throughout this appeal is that the Government consistence upon referring to Mr. Presser as making an alibi. He did take a stand. He corroborated Sheridan in that. He testified that Sheridan left his office before he did on September the 9th. There was some as -- some point of differences to one he returned, but he -- in any event, he returned on September the 12th and Sheridan did not return until September the 13th. So in any event the -- on September the 9th and the 13th, the petitioner was in his office when Sheridan was not. There was never any attempt to make an alibi in this case. I think that the statement that the matters were pertinent as a matter of law and therefore, the petitioner's failure to state to the court specifically that such matter should be sought evidence on pertinency should be heard outside the jury cannot be sustained on the basis of Braden as cited by the Solicitor General because in the Braden case which was the converse, the failure to object was not taken as the conclusive factor for the Court's decision on that particular point. And in this case, the enumerable objections cannot be taken as nullities because the Court did in many cases recognize exactly what the objection was for. Now --
William J. Brennan, Jr.: Are you arguing Mr. Cardinal that in fact there was an objection that taking this testimony in the presence of the jury?
John G. Cardinal: Yes.
William J. Brennan, Jr.: Well, you can't give us --
John G. Cardinal: Not -- not that --
William J. Brennan, Jr.: -- some ref -- I beg your pardon?
John G. Cardinal: I'm -- I'm sorry. I don't mean to say and I had mentioned before that a request to hear this testimony outside the jury is -- has not been taken in the record. The fact that the objection was taken to the hearsay testimony that would be presented by the -- by the Senator was in our minds an objection on the ground that this testimony would be self-serving to the extent that the Government was attempting to form or provide a basis much as they would be for a Committee to show pertinency. They were laying the foundation for pertinency by bringing in this testimony and that was the basis of our objection that it would be self-serving to that extent. But those words are not in the record.
Potter Stewart: How long did Senator McClellan testify overall?
John G. Cardinal: I'd say about an hour and a half or two hours.
Potter Stewart: How long was the total of the trial (Inaudible)?
John G. Cardinal: Total trial was three or four days. I don't know exactly -- I think it was -- there was a weekend in between. I've forgotten, but I think it was three or four days. But the fact that his testimony only took the first morning was not allowed to escape the jury because the prosecutor was permitted on cross-examination of Presser on the final day to go to some length in cross-examining him as to the findings of this Committee, special findings as -- as to Dorfman that he had ascended to the presidency of some union as a result of the murder of his -- his predecessor.
Earl Warren: (Inaudible)
John G. Cardinal: I can point -- yes, it's at 255 of the record. And then it -- it continues and on 256 of the record, the prosecutor says, “Does it refresh your recollection that the Committee made the statement, etcetera to which there is objection?" And that is continued through Dorfman, Hoffa, Beck, English and I don't know whether Mr. Brennan was in there or not. And in his argument, he was again permitted to say that they did not bring this up to prejudice the mind of the jury against the -- the petitioner. They merely wanted to show a motive but the motive was manufactured.
Speaker: (Inaudible)
John G. Cardinal: At 256, that's Presser -- that is the petitioner.
Speaker: (Inaudible)
John G. Cardinal: Yes. That is the -- oh, that's -- that is the -- the defendant below and the petitioner here and that was the prosecutor's cross-examination of the -- the then defendant on the basis of this interim report finding.
Earl Warren: This -- this have not -- this question has nothing to do with direct examination, the questioning?
John G. Cardinal: Oh, I'm --
Earl Warren: (Inaudible) to his position and as a result of (Inaudible) the murder of his predecessor and that he was elected (Inaudible). That's the first time I've heard that (Inaudible)? Is that -- is that have anything to do -- of the question at least in your opinion? The question is directed (Inaudible)?
John G. Cardinal: Not Presser's -- not Presser's direct examination, but while McClellan was on the stand and these objections were being taken to his testimony, he was permitted over objection to read on page 43 of the record, his Committee's findings relative to English, Hoffa, Brennan, Bender, Kernel, Bliss and Dorfman.
Earl Warren: Well, when I asked Mr. Medalie for the findings of the (Inaudible) referred us to page 27 (Inaudible).
John G. Cardinal: Oh yes. On page 40 -- begins on page 43.
Earl Warren: (Inaudible)
John G. Cardinal: And it -- it begins on page 42 where the objections were taken and the Court originally sustained the defendant's objection. The middle of 42, the Court says, “Objection sustained. I don't' see what materiality it has.” The prosecutor then went into this statement as to why he wanted it. The Court not satisfied yet said, “Was it a matter that one official gave another official a Champagne Bucket?” At that point, the Senator recognized the problem and said it's a question of union -- using union dues. Then the Court for some incongruous reasons said you may continue and he then characterized these names. And you will see also at 257 that the reason for overruling the objection, objection on cross-examination was because the name was on -- one of the names was present. One -- one more thing before I closed, I ‘d like to -- I'd like to mention that Bender was under a personal subpoena by the Government at the time and spent his time in the hall of the court, but was never called. I'd also I like to mention that on September the 9th, Sheridan had the documents which are the subject of this lawsuit in his hands and could have taken them by giving a receipt which was then the custom and practice of the Field Office and Joint Council 41 but refused. The entire -- the entire financial record of Joint Council 41 pertaining to these gifts was in the hands of the field office on September 9th 1958. I think of significance is that the subpoena which the petitioner has been accused of violating was issued six months before the document involved here was demanded and he was not charged, not indicted till six months following and that the documents involved were not -- and this is in the record, were not turned over to any department other than Sheridan's custody as appears until November 18th of 1958, approximately three months later. Thank you for the court's attention.
Hugo L. Black: (Inaudible) -- I didn't quite understand you, its page 257 (a) where they asked the witness, someone has to remit the --
John G. Cardinal: Prosecutor.
Hugo L. Black: He was aware that Beck had been convicted for stealing $200,000 or $300,000? Who was (Inaudible)?
John G. Cardinal: The prosecuting attorney, Mr. Kernan, Frank Kernan pro -- was the prosec -- I think --
Earl Warren: Department of Justice?
John G. Cardinal: Department of Special Attorney from the Department of Justice that came to Cleveland --
Hugo L. Black: What was the alleged relevancy of this?
John G. Cardinal: To -- to probe whether or not he -- the petitioner had knowledge and motive, that would be the only other reason other than pertinency to tie it up.
Hugo L. Black: Well, was there any evidence that Beck has been convicted for stealing $200,000 or $300,000?
John G. Cardinal: No. Other than what appears on page -- I've forgotten the page -- I think 49 -- 43, begins at 43 of the record.
Hugo L. Black: (Inaudible) Do you know whether you have or not?
John G. Cardinal: I don't know. It doesn't appear in the record. That is a matter of cross-examination.


Warren E. Burger: We'll hear argument next in 73-507, Hamling against the United States. Mr. Fleishman, I think you may proceed whenever you're ready.
Stanley Fleishman: Mr. Chief Justice, may it please the Court. I stand on behalf of petition of Mr. Hamling and the corporate petition is herein. Mr. Rosenwein represents the other petitioners. Mr. Hamling has been given a prison term of four years. The corporate defendants have been sought find including the -- Mr. Hamling, $87,000 for mailing a brochure that hurt no one. The brochure advertised a book, a book with plain serious political value. The book is an illustrated version of a government report which basically held or concluded that the law of obscenity in a free community such as ours required that willing adults be permitted to make their own choice with regard to whether or not they will or will not expose themselves to sexually explicit material. The brochure follows the line of the book. The Government's own witness called the brochure a miniature of the book. The petition is, of course, have the thought --
Warren E. Burger: Was the -- was the original report illustrated, Mr. Fleishman?
Stanley Fleishman: No, sir. It was not. We called, however, one of the commissioners, Commissioner Larson who testified that the book that we put out with these illustrations made the book more valuable with the pictures. We also called the executive director and the director of research for the commission report. He similarly said that the illustrations made the report more valuable, not less. The petitioners, if the Court please --
Warren E. Burger: Did they enlarge on that?
Stanley Fleishman: Yes, they did your Honor. They explained that -- informed people to know what the issue is about that they ought to be able to look at what the explicit material was that was being litigated and both witnesses testified, those who were in favor of the proposal of the Commission and those who are opposed to it. Both would be better informed by looking at the pictorial material which a company -- the company detects. The Government stipulated that every picture -- every picture in the report was related in some reasonable fashion to the work that the Commission had in fact done.
William H. Rehnquist: Was there any reason why the jury wouldn't be free to disbelieve these witnesses just as they would any other witness?
Stanley Fleishman: On that score, I believe not, Your Honor, because they simply didn't know if we believe that experts have a place in a trial. Then, if they are honest people, no one ever disputed their honesty, when they talk in an area in their expertise, then I think that a jury should listen because a commissioner who spent two years on the commission report, the executive secretary spent two years there, simply has an opinion that is better than a lay jury.
William H. Rehnquist: But juries do believe that -- disbelieve experts for a number of reasons, don't they? And, there's been no-no rule of law that says they have to believe.
Stanley Fleishman: Yes, Your Honor. In any event, our position on this Court is that both the book has serious political value and therefore is a matter of law, constitutional law is protected by the First Amendment and that the brochure similarly has serious political value and is absolutely protected by the First Amendment.
Warren E. Burger: Are there not a number of holdings of both state and federal courts said to the effect that the jury has wider latitude in accepting or rejecting expert testimonies than other testimony?
Stanley Fleishman: On this issue, Your Honor, whether the work has serious political value, that is a matter of First Amendment law has nothing to do with either the acceptance or the rejection of the expert witness. So that on our score, in terms of whether it has serious political value, a book which urges a major change in policy and a brochure which urges major change in policy has to in a free society be recognized as containing the requisite serious political value in our judgment. Now, if the Court please, the petitioners have been caught as everyone recognizes in a period of transition. They are caught in a no man's land. Under similar circumstances, three courts at least, the First Circuit in Palladino, the Tenth Circuit in Freedman, and a different panel of the Ninth Circuit in Henson held that it was simply unfair to send a person to prison to brand them as a felon where the law has changed as it has in this case. And, I would call to the Court's attention the fact that the opinion of the Court of Appeals in this case is under a heavy cloud by reason of the fact that another panel in Henson has reached the opposite conclusion and perhaps equally important is the fact that in another case mentioned in my reply to the Government's opposition to our petition for certiorari at page 2 in London Press, the identical brochure was involved and there are the Ninth Circuit granted a rehearing en banc or ordered a rehearing en banc and that matter has been put over since this Court has now granted certiorari. The point I make is that the Ninth Circuit itself has expressed a very serious doubt as to the correctness of the judgments in this case. Our basic point, Your Honor, is that the federal statute, Section 1461 on its face and as construed to pre-Miller conduct simply fails to meet constitutional master. It does not afford the fair notice. It does not afford the country guidelines when this Court said, “Every obscenity statute would have to have before anyone would be subjected to any criminal prosecution.” And the defect in the statute as it existed prior to Miller is by fault. First of all, the statute plainly does not have the specificity which this Court said was an absolute essential to the validity of an obscenity statute, one have only look at the words of the statute to see they talk only in terms of lewd -- obscene, lewd, lascivious and decent, filthy and the like. It's equally plain that this Court had not hit the floor before Miller had a saving construction of the statute. If there is, if there'd be, a saving construction of a statute, it would be in Footnote 7 and 12 Reels of Film and there the Court only said that it was prepared in the future to read Miller into the federal statute and if the Court was prepared in the future to do so, it follows inevitably that the Court had not thereto for had the Miller specificity in the statute. And so, the statute was simply unconstitutionally vague because it did not have what this Court said, “Every obscenity statute would have to have if it was to meet a constitutional requirements.” Secondly, if the Court please, the authoritative construction of 1461 at the time that the petition is herein were tried and convicted was that national standards had to be used. National standards had to be used with regard to hate and defensiveness. National standards had to be used with regard to permanent interest. But, this Court has said, “There are no national standards. They are unascertainable. They are unprovable. They are unrealistic. They are abstract.” And, the Court had said that a jury trying to answer the question of obscenity within the framework of national standards was engaged in an exercise in futility. Therefore, the petitioners here were convicted of offending standards that simply on the Court's own terms do not exists. The statute in the first place is defective because that is the authoritative construction of the statute as of the time of the trial and the conviction and having read the national standards into the statute and following the -- the logic, methodologically teachings of Miller, we know that national standards simply do not exist. The statute is also unconstitutionally vague pre-Miller because of the utilization of the utterly without redeeming social value test. That -- with that regard, the Court said that the test was ambiguous, that it was unworkable. The Government reads the Court's opinion somewhat differently but as we see it, it makes no difference. The Government says that the utterly without redeeming social value test was rejected because it imposed an impossible burden upon the Government that the Government could never obtain a constitutionally valid conviction under that standard. If that be so, their argument really is that the utterly without redeeming social value test is so all encompassing that it affectively nullifies 1461. And if that be so again, one cannot say that the petitioners had fair notice or concrete guidelines as to what kind of conduct would make them felons and punishable by heavy jail terms. And finally if the Court please in this regard, at the time of the conduct herein and at the time of trial, the operative test in determining obscenity was the red room test. Everybody agrees on this as I understand it, that was no test at all. It was nothing but a subject of test in which any five members of this Court using their separate test, their own intuitions would to come to a conclusion. In short, all of the petitioners had to know was how would five justices look at the material at the time that he came before you. Now, if that be a rule of law, if that's a test that meets due process, I respectfully submit, then due process has a meaning quite different from anything that I had understood before and I always thought that in a free society, a person subject to a law would have to know what reasonable certainty in advance what made his conduct criminal or not criminal and if the rule be that whatever five of nine justices believe is bad then I submit, Your Honors, that there has not been a compliance with due process. But, even if we -- the Court is not prepared to hold that the statute is unconstitutional and the respects that we have set forth, I respectfully submit, Your Honor, that the indictment in this case is fatally infirm. The indictment is verbally and fatally infirmed because the indictment follows the statutes word by word. There is nothing in the indictment which any -- in any way clarifies the ambiguity in the statute itself. So if the words obscene, lewd, lascivious et cetera by themselves do not give fair notice and concrete guidelines, then they do not give the fair notice that the Sixth Amendment requires in giving the accused fair notice of that which he is required to defend against. Now, the Government, if the Court please, has moved to Palladino as the case to point the direction to the solution of the trial here, the case herein, the Government recognizing that it's unfair to convict a person serious charge if he is caught mid stream says “Let's follow Palladino”. Well, if we follow Palladino, we are entitled, of course, to a reversal because in Palladino, there was a conviction and after remand by this Court, the First Circuit said that fairness required that issue be submitted to the jury and, of course there, there was a national standard, I put aside whether it's correct to submit it to the jury on a national standard or a local standard. The simple fact is that it was recognized in Palladino that there had to be a submission of the issue to the jury. Now, it's interesting that in Freedman whether it was also the same conclusion reached by the Tenth Circuit, the Tenth Circuit in Freedman took the view that there had to be a submission to the jury because local standards were to be applied in federal cases. Now, this is the position that the Government urges for federal prosecutions, the utilization of local standards, our view of it is that if in fact local standards are to be used in federal prosecutions, plainly the petitioners were not tried or convicted under the local standards. Indeed as we pointed out in our reply brief, our attempt to put in -- to put evidence in with regard to local standard was excluded. We, for example, had called a witness who had made a survey in the San Diego area with regard to the identical brochure in question and on a scientific basis, she asked 718 people their opinions with regard to the brochure overwhelmingly as the record shows. They were to view essentially that the brochure as it stood should be allowed to be circulated to the American people generally. That evidence was excluded however solely on the ground that the only test that was applicable was the national standards and not the local standards. So that if again, we are to follow the suggestion of the Government that local standards are to be used then plainly, there has to be a reversal in this case. If we agree that there are national standards that are the appropriate remedy in a Federal Court at least until such time as Congress speaks, then it seems to us that this Court's ruling that there are no national standards has the practical effect of invalidating the federal statute at least in the utilization of national standards. If the Court please, I would like to reserve the balance of my time until after Mr. Rosenwein has represented the other petitioners.
Warren E. Burger: Mr. Rosenwein, I think we will not ask you to divide your time on a minute and a half. We'll let you begin after lunch.