Earl Warren: Number 58, Ullmann versus United States of America. Mr. Boudin.
Leonard B. Boudin: If the Court please. We seek here the review of an order of the Court of Appeals for the Second Circuit, affirming the petitioner's conviction for contempt in the Southern District of New York, for refusing to answer second question before a federal grand jury. Questions as to which he said it properly and undeniably as a constitutional privilege against self incrimination of the questions which were weld by the trial court to be -- by the District Court to be answerable under the Immunity Act of 1954, which I will first describe at length to this Court. The Immunity Act of 1954, which appears in the appendix, is the first general immunity statute in the history of this country, notwithstanding various observations that appear on the brief. It is a statute which had its origin in the attempt of certain congressional committee to secure information with respect to communism, and its principle sponsor was Senator McCarran. It was eventually tasked very hastefully in the closing days of the 83d Congress, and it deals not only with the congressional committee, which was the main purpose of this Bill. There are also deals that subpoenas came in at the end, congressional committee from grand jury, an ancillary purpose which at this point I will make shortly. This Bill provide with respect to congressional committee that in the event that the witness had set its privilege before a congressional committee and the Committee by a two-thirds vote or the House involved by a majority vote desires to compel the testimony notwithstanding the privilege, then an application could be made to a District Court for a notice to the Attorney General who can appeal and oppose or support, and the District Court will then decide whether immunity is to be given in the case of the congressional committee witness and that order will be followed. If the merit is to be given, then the witness will be compelled to testify. That section or those sections, (a) and (b) of the statute, I mentioned to give you the full statute, they are not before this Court directly. What is before this Court is Section (c) of the statute which reads in material language as follows. Whenever in a judgment of a United States Attorney, the testimony of any witness or the production of books, papers or other evident by any witness in any case or proceeding before any grand jury or Court of the United States involving and then referred to -- then there comes a reference to various statutes dealing with national defense, national security in sedition. In those so-called national security cases which I will use in my discussion here today without conceding the propriety or the applicability of the term, it is provided that where the judgment of the U.S. Attorney is to the effect that the testamentary “is necessary to the public interest, he, upon the approval of the Attorney General shall make application.” I emphasize the word “application” to the Court “that the witness shall be instructed to testify or produce evidence subject to the provision of this section and upon order of the Court,” and I emphasize the words “upon order.” “The witness shall not be excused in testifying or to testify and receive what is referred to generally in the statute as an immunity against prosecution, as an immunity against penalties or forfeiture.” The statute is not clear, of course, as to whether -- and no statute actually has been as to whether it's intended by the term “penalty or forfeiture,” a point that we will discuss later on. It should be noted, however, in my passing reference with the statute here that while it appears that immunity is given against the use of the testimony in any court, state or federal, following this Court's decision in Adams, which is common upon the House Committee Report. It is by no means clear, although, this is not the burden of my main argument that the witness cannot be prosecuted in a state court for the crimes which were revealed by his compelled testimony. I mentioned that because, as I say, it is a point we make, although, not central to our thing. Now, as to the facts, the petitioner is one of a series of government employee. He worked 12 years to the United States Government, retiring honorably in 1947. A group of government employees, particularly those in the Treasury Department, who, for about eight years, had been subject to accusations by one Elizabeth Bentley of being members of the Communist Party and of an espionage reign in the Treasury Department. As the record shows to this Court, we'll undoubtedly know from general observation, these charges were received great currency. I received the imprimatur of the Attorney General of the United States, a point later to be discussed by me. And these witnesses, including the petitioner, have for eight years and here before a congressional committee, grand jury repeatedly, sometimes before the same Committee, sometimes before the same grand jury, sometimes before several committees, and in the particular case, my client was called before the FBI in April 1947, a grand jury in New York in November 1947 and I will discuss the other half after the recess. Without going into all the gory details, Mr. Chief Justice, I should say that over a period of seven and a half years, the petitioner was called eight times before one inquisitorial body or another. Subjected to essentially the identical inquiry with some variations for view of the contacts to the inquiry, but all of them were predicated in one way or another on the Bentley charges of espionage in the Treasury Department in the communism. And although in the early days when things were a little quiet internationally as far as this situation is concerned, the petitioner for example, in his six-hour interrogation by the FBI in April 1947, denied all the charges that Ms. Bentley had made with effect to espionage, Communist Party membership entered with no prosecution that either substantively were under the False Claims Act. When it came to and when he -- in 1948, he was subpoenaed before the House Committee on Un-American Activities, he unequivocally made the statement appearing at page 12 of the brief that the charges were false, that he'd never been a spy. As things moved on and times changed in ways that are well known to the Court that were reflected as more recent decisions, the petitioner moved back because of the very reasonable apprehension upon the constitutional privilege against self incrimination. The latest of these inquiries, and of course, the one that brings us to this Court, that in the Southern District of New York in November of 1954, preceded for the peculiar reasons that have a copy of all of these inquiries by only three weeks before subpoenaing of the petitioner before the grand jury in this District. And I should say because it reflects the general attitude of these investigations which have the bearing here. But simultaneously, four grand juries in the United States were conducting investigations into the same alleged conspiracy into espionage. Somewhat, this is being called before several grand juries. Witnesses are being called before grand juries in areas where they didn't reside and in a sense following a pattern which as we well publicize in the area of congressional committee operation, but which we have hoped our grand jury system would not spoil air to. The petitioner was called in November 1954 before the grand jury of the Southern District of New York and was asked questions in the following character. First, Ms. Bentley made the following charges of espionage “Are you or were you a member of the Communist Party? Were you a member of an espionage ring? Was Harry Dexter White, former Under Secretary of the Treasury, was Mr. Currie, former Administrative Assistant of Franklin D. Roosevelt, our president, was this man -- was that man a member of the Communist Party, a member of an espionage ring?” And it must be remembered that the petitioner had previously denied these charges under oath, some five years ago. It should also be noted that the charges (Inaudible), allegedly under investigation in 1954, were charges of espionage occurring from 1941 to 1945. Petitioner asserted his constitutional privilege in the Southern District and was called upon notice to him and his counsel before Judge Weinfeld in the Southern District, and the Government made an application to Judge Weinfeld, the director of petitioner, answer under the Immunity Act of 1954 which I summarize to Your Honors. We had an extended argument before Judge Weinfeld and I have given the transcript to this Court as I did to the Court of Appeals below. In the course of the argument, the petitioner took the following position. He said, “This is not a bona fide inquiry into crime. This is a broad political issue raised by the Attorney General. He had publically charged me and members of the old administration with espionage.” And the Attorney General having testified publically that he has had proof of espionage since 1945, “But don't let us throw down and I cannot survive an attack by the Attorney General if I testify.” The Attorney General is bound, either to follow my testimony before the grand jury with an indictment for substantive crime if he can pick something out of my testimony or it is more likely an indictment for perjury, and not so much in the area, though I don't discount that of a perjury for denying the espionage charges, but perjury for denying charges relating to Communist Party affiliations or the knowledge of others because the problem there is a very special one as this Court knows. The question of what membership in the Communist Party is or was and one's knowledge if someone else's membership of the Communist Party, far from being the precise thing we had thought membership was some years ago has turned out in cases in the records before this Court with Remington and other cases which I've cited my brief to be a far less substantial doctrine. And the witness who I've lightheartedly denies or likely denies known as lighthearted in this area, of course, knowledge of membership of other people or himself made base a prosecution for perjury, not based upon proof that he was a member, but based upon a broad scheme of circumstantial evidence, now supported by the Communist Control Act's criteria, 14 or 15 criteria to what is the member which may find him guilty of perjury and so he's subjected to a prosecution for perjury regardless of the actual innocence. These charges in essence and because I must analyze the law very closely to Your Honors, I can't go into too great detail now, but those are made under oath by petitioner and affidavit to Judge Weinfeld. Judge Weinfeld said that he first requested an affidavit of good faith in the United States Attorney in the Southern District of New York and such an affidavit, a formal one, alleging no fact to support it, was given by the United States Attorney. Secondly, Judge Weinfeld, although requested by us, to examine the grand jury minutes to see that there was no evidence of crime, and to see whether they did not support our position that what was happening was simply the usual practice of congressional committee in calling witnesses before them and asking whether they were members of the Communist Party. Judge Weinfeld declined to examine the grand jury minutes. He took the position ultimately at any rate that the question of whether immunity should be granted, assuming that the United States Attorney said this was an investigation into a national security crime were the question for the United States Attorney, not for the judge. And so, Judge Weinfeld's refusal to deliver the grand jury minutes was consistent with his interpretation of the statute. Allow us -- I may now indicate. I think that even he was right in his construction of the statute, which we will challenge, as the judge supervising the grand jury, he had the duty described by Mr. Justice Clark in the Hoffman case to supervise and prevent its excessive, any abuse of its processes, a doctrine referred to so well in the -- in the Hoffman case and previously articulated by this Court or suggested at any rate in Hale against Henkel.
Felix Frankfurter: I'm not sure I caught what -- in your view is irrelevant in your request to Judge Weinfeld who examined the grand jury now.
Leonard B. Boudin: We thought that if Judge Weinfeld examined the grand jury minutes, he would see there was no evidence of crime that the grand jury, in calling this inquiry, was engaged in a general dragnet inquiry as to whether somebody was a member of the Communist Party, but really, it wasn't searching for evidence of espionage and it had no evidence of espionage before it.
Felix Frankfurter: Only derived that from the minutes from what the -- the Assistant U.S. Attorney in charge told the grand jury --
Leonard B. Boudin: That possibly and that --
Felix Frankfurter: -- or the witnesses.
Leonard B. Boudin: Or from an examination of Ms. Bentley's own testimony before the grand jury, which might have exposed what we think has been happening in the last 10 years. Now --
Felix Frankfurter: For those minutes -- assuming he had grant your motion, would– would the minutes have to be drawn over to you?
Leonard B. Boudin: We explicitly indicated, as I remember the transcript, that while we go -- we had a right to them, we at least one of the judge to see them. We wanted some protection but we couldn't get total protection. Now, and of course, judges have looked if Your Honor knows the grand jury minutes without a party being allowed to see them and the Court's of Appeal have affirmed that policy.
Harold Burton: Did you bring that question here?
Leonard B. Boudin: Yes, we brought the entire issue here. We've raised that.
Harold Burton: How -- how did you raise it here?
Leonard B. Boudin: Well, we stated -- we stated in the court below that Judge Weinfeld --
Harold Burton: (Voice Overlap) presented in your brief.
Leonard B. Boudin: We have stated in our brief. I can't remember the precise point --
Harold Burton: The writ of certiorari --
Leonard B. Boudin: Your Honor?
Harold Burton: -- on page 5.
Leonard B. Boudin: That -- may I come to that in a moment so we can check that. Now, Judge Weinfeld, at the beginning of the discussion, indicated that he thought that a grant of the -- that the order which he would ultimately enter should contain a specific grant of immunity. Later on -- and that appears in the transcript -- he decided that he would make no reference in the order, either to a grant of immunity or to the kind of immunity that we were going to receive. In other words, he was not merely even going to describe that. Now, as I've indicated in my brief, the reason why he undoubtedly did that was because he thought this would be a concession to our general theory that he was granting the immunity because he described it. But as a result, the petitioner took the position before Judge Weinfeld and does here, as he did in the Court of Appeals, that he does not know the extent of the immunity which had offered him upon his testimony. Now, after Judge Weinfeld overruled our objections and directed the witness to answer questions, including those with respect to political affiliations that we thought were improper, we appealed that, we -- the client to answer those questions before the grand jury and on the bases of the record of stipulated facts before Judge Murphy, who did not review the matter de novo. We -- petitioner was convicted of contempt, sentenced to six months in prison with the right to purge and we appealed to the Court of Appeals. In one of the tedious arguments ever held, namely, eight days after the conviction with full brief before the Court of Appeals, we argued this matter before, our Second Circuit, Chief Judge Clark, Judge Frank and Judge Galston, sitting by designation. The extraordinary thing about the three opinions which appear at pages 55, 59, and 60, is that each of the three judges who affirmed the conviction below, expressed basic sympathy with our position and suggests that if the matter had come to them de novo, they might well have decided this issue in our favor. And by this issue, I should be fair to the Court and my opponent and indicate not the construction of the statute which is one of the issues which I will discuss in a moment, but the broad constitutional issue of whether the Fifth Amendment prohibits compulsory testimony. We are now here on the opinions of the Court of Appeals that turned out it was the basis for the grant of certiorari raising two issues. They are interrelated but they are distinct. The first is a statutory construction issue. Was the Court under the duty of determining whether immunity should be granted or was that the sole function of the United States Attorney as Judge Weinfeld held? Because it was perfectly clear from this record that Judge Weinfeld did not examine the record, made those study to determine whether if he had discretion, he would have exercised it because he said, “I have no discretion at the first issue,” and I'm going to discuss that first in deference to the established policy of the Court even though the constitutional issues are so important. And the second issue, the constitutional issue, which I will next discuss, is this. Is this immunity law which moves and moves in the realm of the First Amendment and which carries with it the extra ordinary sanctions which we are -- have described and will describe? Is this immunity law constitutional? And I may say in passing that we are not taking on every immunity law and I prepared to distinguish Brown against Walker even though we think this is an original proposition, it too should be overruled. Now, let me turn first to the construction of the statute if I may.
Felix Frankfurter: Before -- before you do that Mr. Boudin, may I trouble you to help me know where I can see precisely what this witness was asked, his testimony.
Leonard B. Boudin: Of Course. This appears, sir, in the statement made by the United States Attorney's formal application appearing at page 2 and 3 and 4 of the record where the first question -- I don't know what Your Honor wants me to read or whether this reference is insufficient.
Felix Frankfurter: I don't -- I just want to know if -- and the order is to answer the question set forth on pages 2, 3 and 4.
Leonard B. Boudin: And all other questions relating thereto. There is no limitation in this order --
Felix Frankfurter: Was that --
Leonard B. Boudin: -- to those particular questions.
Felix Frankfurter: Was that the order?
Stanley Reed: But where --
Leonard B. Boudin: Yes.
Stanley Reed: Where -- where is the order?
Leonard B. Boudin: The order appears at page 44 of the record.
Felix Frankfurter: Does it say, “And all of the purpose it uses?”
Leonard B. Boudin: It gives us the equivalent language of –- yes, to produce evidence with -- this is on page 44, “With respect to matters on the inquiry before said grand jury.” In other words, to instruct the witness to answer the questions propounded to him before the grand jury and to testify and produce evidence with respect to the matters on the inquiry. I think that answers your question, sir, as to that point.
Felix Frankfurter: I don't -- at page 44?
Leonard B. Boudin: Yes, sir, page 44 of the record. The order of Judge Weinfeld is about the second --
Felix Frankfurter: This amendment pursuant to the provisions.
Leonard B. Boudin: It begins with the word “accordingly” on page 44 of the record.
Felix Frankfurter: Oh, yes. Now, what I want to know is what this relevancy is -- before we come back to the grand jury room and then these questions were propounded to be answered in some other questions that are not plainly repetitive for me to know. And then I set out in the application. I myself thought it was irrelevant. We have to go through and all over again?
Leonard B. Boudin: I would think so. I don't know. That -- that was never laid out by the Court.
Felix Frankfurter: Would he -- or would he (Voice Overlap) –-
Leonard B. Boudin: Or he would be guilty of contempt.
Felix Frankfurter: -- he would be guilty in Court of contempt if he -- what I read is that involved.
Leonard B. Boudin: I do not think that that is my -- I said I want to rest on -- I don't want to rest on that point.
Felix Frankfurter: I think you're resting on it.
Leonard B. Boudin: I don't want to rest on that point. I think that -- I think that that was error, but I think it's a small error compared to the basic problem.
Felix Frankfurter: Well, I'm not asking --
Leonard B. Boudin: Yes, I know you're not asking me that.
Felix Frankfurter: (Voice Overlap) and I want to hear it but I just want to know what – it bares on from my point of view the function of a judge.
Leonard B. Boudin: I am not surrendering that point. That's clear, but I'm not emphasizing it. Now, with respect to the statute, I should say, Mr. Justice Frankfurter, in fairness to my opponent that my recollection is in looking at some of the old records such as Hale against Hankel in that group of cases, that they were orders following the general phraseology which didn't limit it to the questions put. Now, of course, we're dealing with the different problem, economic regulation of course, and First Amendment problems, but to that extent, the Government may have been guided in drawing this order and Judge Weinfeld by following this old precious and I owe that to the Court.
Felix Frankfurter: But it isn't merely that. And perhaps the only difference in those cases is this, namely, the whole function of who gives immunity is involved –-
Leonard B. Boudin: Of course, of course.
Felix Frankfurter: -- and it's not involved in those cases.
Leonard B. Boudin: That's correct, sir. That -- this is the first case.
Felix Frankfurter: And therefore, what it is that the Judge is empowered to purge by his traditional order used to be irrelevant with his (Voice Overlap) --
Leonard B. Boudin: Your Honor is quite right. I hadn't notice that distinction. This is true. This is the first statute, federal statute in the history of the United States in which a judge, as we construe it, directs immunity. In all the other cases, the immunity is automatic where the witness appeared.
Felix Frankfurter: (Voice Overlap) -- neutral words that judges are filing that the immunity -- some of the immunity covers.
Leonard B. Boudin: Yes, sir, I'll accept that modification. Now, I came to the construction of the statute. The Court will note, the Court should note because one can't look at the statutes alone, the words upon order and the words application while suggesting an appeal to the discretion of a federal court, the appeal which I think is inherent in every application to a court unless is explicitly stated that the -- the discretion of the Court is not intended. While those words seem to suggest discretion in the Court, I cannot say that they absolutely require it. We therefore must turn to the legislative history, and when I make this concession that those are not words which permit any leeway in construction, I remind the Court of what I said at the beginning. This statute was rushed through at 28th century speed, I regret 20th century in a rare way which we now use it. It was on historical period in which the Communist Control Act of 1954 and this one on two or three other statutes were passed, and nobody had a chance to formulate language precisely. They know whom they were gunning for. They didn't know how best to do it. The legislative history of this statute clearly shows that we are right in our construction and it was intended that the Court play a part in the grant of immunity, play a censorious controlling thought. In the --
Felix Frankfurter: (Inaudible) are you going to give me bill of particulars for that reasons?
Leonard B. Boudin: I'm going to give you -- now, I'll give you the bill of particulars, quite right. Immunity legislation was proposed beginning with Senator McCarran from 1951 on in this field of communism. It started and it continues with a severe conflict between the Attorney General and Congress as to who should grant immunity, at least at the beginning in the congressional field. The Attorney General didn't trust Congress. Congress didn't trust the Attorney General and my bill of particulars in the brief. I am discussing now the trust of the morality. I'm discussing the trust of the ability to use discretion properly. Senator McCarran was a vigorous proponent in the field of immunity legislation and wiretapping and everything else of congressional power as against executive power, whatever my other differences, whether there might have been, there, he was clear. And so, S-16 which came through first and which is the only Bill that was passed, limited to congressional committee didn't touch on grand jury. That Bill was buckled up to two years. S-16 gave Congress complete control over the immunity power with respect to its witnesses.S-16 remained on the books in the matter of -- to remain passed by the Senate but not by the House, and the matter came to the House Judiciary Committee. There, the administration through Representative Keating supported a Bill known as H.R. 6899 referred to in our brief. H.R. 6899 dealt with both congressional committees, grand jury -- and grand juries and courts as well and gave the Attorney General exclusive power, exclusive control over the immunity power with respect to congressional committees, courts and grand juries. And this control, which is referred to in our brief, uses the following words and you'll see how the statue has been modified.
Speaker: What page is that?
Leonard B. Boudin: It's on page 16, the language, page 16 of our reply brief before this Court. Whenever in the judgment of the Attorney General were those words remained of course. In any case before a grand jury, the testimony is necessary. Such witness shall not be excused from testifying on a ground that the testimony required of him may incriminate him. And in the passage which I have not set forth in my brief which should have, I may say that the original bill shows another paragraph significant and that it gives the quality of the conflict between Congress and the Attorney General. The judgment of the Attorney General at any testimony if necessary shall be confirmed by him in a written communication, foreclosed and shall be made a part of the record of a hearing or proceeding in which such testimony or evidence is given. If this Bill had passed the administration bill supported by the Attorney General before the Committee, we would not be here today arguing this particular point, but it didn't pass. It didn't pass despite the vigorous position taken by the Attorney General in support of it referred to on our main brief at pages 40 and 41. What happened was -- at page 39 -- what happened was that the subcommittee, the subcommittee agreed with the Attorney General, but the main committee refused to agree. And the House Judiciary Committee rewrote H.R. 6899, rendered a report in which have said we have -- or that full committee has “substituted its own version as a complete substitute, both to S-16 as it has passed the Senate and as it has been reported by the subcommittee.” And what was that rewriting? Well, that rewriting was to interpolate the words, “He, upon the approval of the Attorney General, shall make application to the Court.” Those words were not an H.R. 6899. Those words were put in by the full committee. And when the full committee discussed the reasons for putting in for changing the Bill, what did the full committee say? It said, “The full committee amendment requires that application be made to a court, whereas, on the H.R. 6899” -- I'm reading from page 40 of my brief -- “only the approval of the Attorney General was necessary, prior to the granting of immunity.” Is there anything ambiguous in that statement and is there anything ambiguous in the statement which follows, which is, after discussing the fact that before congressional committees, "The approval of United States District Court foreclosed the required,” the Committee Report goes on to say, “In cases before a grand jury or a Court similar precaution exists.” “In all cases,” and these words are very important here, “where the Bill authorizes a grant of immunity after the privilege have been claimed, there are at least two other independent but interested parties, two other independent but interested parties who must concur in the grant of immunity in order to meet the requirements of the Bill.”
Felix Frankfurter: Now, what page are you reading from?
Leonard B. Boudin: I'm reading from House Report 2606 83d Congress appearing at page 40 of my main brief.
Felix Frankfurter: And what page is that?
Leonard B. Boudin: Page 40.
Felix Frankfurter: Page 40.
Leonard B. Boudin: The report is on page 4 -- page 8.
Felix Frankfurter: (Inaudible)
Leonard B. Boudin: We have set forth the entire language at page 15 Footnote 1, because the Government I think incorrectly claimed that we might have misled the Court. So, I had best refer you to page 15 or our reply brief. Now, the words, “two other independent,” but interested parties must refer in the case of a grand jury proceeding to two other than the United States Attorney but who other parties there?
Felix Frankfurter: Why -- why is that? Why not, why didn't he put the U.S. Attorney and the Attorney General.
Leonard B. Boudin: Well, all right, but it says, “Two other independent.” Who did the other referred to? In other words, the U.S. Attorney is the one who comes in first, then, there must be two other independent that interested parties that must concur. Those two other can only be the Attorney General and the United States District Court. Otherwise, the word “other” is ruined. Now, we are not resting alone on this Committee Report as long though it is because Representative Keating, the manager of the Bill testified and stated before the -- in doing the congressional debate, the language I've quoted at page 41 and 42 of my brief at the bottom, it does not leave the final determination as to the granting of immunity in either the hands of the investigating committee or the Attorney General, but rather, the Court. Now, there is nothing ambiguous about that language.
Felix Frankfurter: Well, if you -- if you read the whole pleadings, in those provisions with a subsequent (Inaudible) to the questions presented by the Revenue (Voice Overlap) --
Leonard B. Boudin: Yes, I know that, I know that.
Felix Frankfurter: If you read -- I think I might disclose to you my --
Leonard B. Boudin: Please.
Felix Frankfurter: -- I mean why I shouldn't -- I wish to report to the Committee (Inaudible) I think Mr. Keating's speech is equally (Inaudible)
Leonard B. Boudin: Now, let me read to you, Mr. Justice Frankfurter, one passage from Mr. Keating's speech at page 8324 Congressional Record, and I would like to see if there's anything murky in this particular phrase.
Felix Frankfurter: Now, which -- which part are you reading?
Leonard B. Boudin: I'm reading --
Felix Frankfurter: My difficulty derives from the fact that in both the report to this proceeding. In one phrase, one casual issue where they talked about the investiture aspect in the Court's relation with -- and if that language -- I'm not saying that there's like notice to a conclusion. I'm not saying I reject your argument. I'm merely now examining the evidence to the conclusion that it support. I'm not saying that this is a perfect illustration of how it's unsatisfactory. It doesn't state if it's clear.
Leonard B. Boudin: Well, I have no doubt it's a legislative history. It's almost as unsatisfactory as the legislation in this case.
Felix Frankfurter: No, because I can argue the legislation your position much more clearly (Inaudible)
Leonard B. Boudin: Now, I may have to depend on your own later on. The fact is that, here, I can see no --
Felix Frankfurter: And not a hostile question.
Leonard B. Boudin: Yes, I understand that. I have no right to object even though I have to.
Felix Frankfurter: No, but you haven't.
Leonard B. Boudin: I think that when Representative Keating stated on the floor, it required in the case congressional hearings, investigations, virtual agreement between all three branches of the Government. And then, when he said the next sentence without any interpolation, in court proceedings that requires approval of both the prosecutor in the Court, there, whatever murkiness made maybe elsewhere, I don't see any murkiness.
Felix Frankfurter: We wouldn't care about the -- the character -- I don't -- I think it will be – would help the Court, if I may say so --
Leonard B. Boudin: Yes, please.
Felix Frankfurter: -- for you to read the paragraph in which it includes these Congressional aspects and paragraph into the courthouse.
Leonard B. Boudin: Well --
Felix Frankfurter: Then we'll see why it says murky.
Leonard B. Boudin: Well, perhaps -- perhaps I could come back to that.
Felix Frankfurter: All right.
Leonard B. Boudin: I can't find the thing at the moment, Your Honor.
Felix Frankfurter: But I think --
Leonard B. Boudin: Yes.
Felix Frankfurter: -- this is the often illustration why counsel goes first to the legislative history instead of first going to the legislative history and see how far that would carry on.
Leonard B. Boudin: Well I --
Felix Frankfurter: And it's mine with all conviction, it's my due to legislation to carry it further.
Leonard B. Boudin: Very well. I have not surrendered on the legislation at all. I merely brought out my rear guard of the legislative history.
Felix Frankfurter: And you arguing that this is not and I have to be informed.
Leonard B. Boudin: And now, sir -- and now, sir, of course, I bring up the Attorney General as my last witness, because on September 13, shortly after the passage of this law, the Attorney General said, talking about immunity and talking about the immunity before grand juries, “It will be granted by a federal district judge.” This appeared at page 43 of my brief. Now, I have considered in my brief that he isn't bound here by his statement and --
Felix Frankfurter: But there is -- of course the Court has to order it. That's not in controversy.
Leonard B. Boudin: Well --
Felix Frankfurter: The question is what is it that needs order?
Leonard B. Boudin: Actually, the Court denies, yes. Judge Weinfeld said he isn't granting immunity. He should always --
Felix Frankfurter: I didn't inform the ordering immunity. I did inform you at that time.
Leonard B. Boudin: Well --
Felix Frankfurter: The question is what it is?
Leonard B. Boudin: Well --
Felix Frankfurter: He is an essential piece of machinery. He is an essential function for the effectuation of this statute, but the question is whether he has discretionary power to withhold or whether he's a merely ministerial officers so that it could be mandamus or whether he'd function therefore in restrictive for the relevance of the question and not to the – to the granting or withholding assuming the questions relevant. Those are very different things.
Leonard B. Boudin: Well, it makes sense.
Felix Frankfurter: When you establish one thing, then I know exactly what the answer to my questions about vesting that power of the Court if the answer is another reason, I'm troubled with all of these.
Leonard B. Boudin: Right. Now, may I point out to Your Honor, two things? First, of course, the direction to testify, that could not have been intended by Representative Keating or the Attorney General or anyone else but that's an inherent power of the Court in its relationship to a grand jury. The Court only has the power to supervise to the grand jury. To direct the witness is a condition to contempt proceeding. There must be something else intended and that can only be the grant of immunity. Now, when the Attorney General said in the speech I referred to will be granted by a federal district judge. His preceding sentence next to the last was, “The immunity will be granted under the new law.” And when he talks about this, he said, “it”, the immunity, will be granted by a federal district judge after advised by the Attorney General. Advice, that wasn't the position they took on -- took in the court below. Their position was that the Court had to grant immunity if they ask for it in a national security case. We say their words are correct. All they were supposed to do is give advice. Now, I don't want to move too far on this -- on the statutory construction but I'm still concerned about the constitutional aspect. Surprising to say, I think whether we take a language of the statute in the reference of the word "application” without limitation, and the reference to the word upon order and that shallow order, either we are correct on our construction of the statute in the court below is an error. Now --
Felix Frankfurter: As the Court can see is the Government deemed irrelevant for its position with this argument whether if these were a congressional multiple direct investigation that the judge is not dealing in his state of office. Suppose -- let me say that's not involved.
Leonard B. Boudin: They say it's no. They really don't concede it. Judge Weinfeld had doubted the constitutionality and the commentators have also as in constitutionality of the whole congressional part of that.
Felix Frankfurter: Judge Weinfeld made a distinction between the function of the Court in reference to the investigation --
Leonard B. Boudin: That is quite right.
Felix Frankfurter: -- and the grand jury.
Leonard B. Boudin: That is quite right. Now, I want to turn to the constitutional issue because that is so important here. I said before that we felt that the minority view when there were four justices in that minority in 1896 in Brown against Walker was the correct view with respect to the fact that compulsory testimony could not be required under Immunity Act whatever bargain might be made between witness and Government, whatever voluntary bargain. It is a hard -- a difficult burden of course to take on all the regulatory statutes and to argue that all of them are unconstitutional and that is – would be the burden of our arguments that's carried forward. It is not necessary for me to carry that argument here for two reasons. First is that we will indicate Brown against Walker is not really the authority that it appears to be in the Government's brief, because of the peculiar fact situation there and I think it's known to the members of the Court which I will recite briefly. Secondly, because we are dealing here not with matters of economic regulations as which there are different standard rules and principles, but we are dealing here with the problem of -- what our First Amendment Rights and whether ultimately, our claim of the First Amendment Rights will be found to move to the level of rights which are subject to regulation – reasonable regulation even upon the First Amendment, then this pose of the fact that they are our First Amendment Right and not economic problems that are under the discussion here. And secondly, that in this particular field, in the year 1955, and I've read even in the years 1947 to 1955, maybe in the years 1959 and 1960, the sanctions which are operative against the political dissent are so severe, governmental private, federal and state, group and organizational, that one cannot say that a guarantee against the immunity from prosecution really protects them if one wants reality to guide decisions. Now, I come down to my phrase, what did Brown against Walker involve? As the Court knows, I think it involved an auditor at the Allegany Railroad who was called before a grand jury under the Interstate Commerce Act to determine not whether he committed any crime but whether the railroad got an unlawful rebate. This -- this Court, the Court here in analyzing his approach who is represented by counsel, a very distinguished for railway order, a James C. Carter of the New York Bar, and Mr. Carter wrote a brilliant brief on the subject of the Fifth Amendment. There was only one mistake I think in the brief that he somewhat exaggerated when he suggested that this railway order was in any danger, but the examples he took of the danger for the railway order indicates the differences between that case and ours. He suggested perhaps an auditing record divulged by the auditor which showed that the auditor, humble employee was in a certain status at a certain time where there was money embezzled or a murder had taken place. And so, that might furnish a chain of circumstances leading to his conviction for the state crime. Now, obviously, as the Court pointed out in that case, this was stretching even on a memo which deserves very wide stretching for the protection of -- of defendant and witnesses very far. There was no danger to the witness in that case. It was clearly as the expression that yield protecting the corporation or fronting for the corporation. And then deal what the Court did to corporation under the Fifth Amendment in Hale against Henkel and the decision which followed, we can understand how this particular case was decided. Nevertheless, there was this very strong dissent, but I suggest as I do in my hearings as I do in my briefs that this was a terrible case and an unfortunate one for us to have to follow here today and elsewhere in which to decide some important constitutional issue as a privilege, because as the Court knows, the privilege was born in a period of the protection of political and religious defense in Puritans in England. It was carried forward here, almost imperceptibly without even being in various English statutes which contained many other rights because it was assumed to be a necessity for democracy. It was carried forth in our Bill of Rights which as the Court know would make a condition to the ultimate adaption of the Constitution. And I'm unable in assessing to distinguish here between the Fifth Amendment and the Ninth Amendment, the ultimate repository of the people's rights that all of these things were intertwined as the fight which were the conditions to the adaption of the Constitution. Now, in this particular area, what everyone may say about regulation of railroads, or antitrust regulation, when you get a real case of political dissent, are we going to be bound by the statement made in the case like Brown against Walker, or must not the most liberal approach be used to the interpretation of these constitutional provision? Is this is not a case where you have to remember as the Chief Justice pointed out in Queen, the historic argument of the privilege and that the Chief Justice pointed out the same case, are we not to remember that the history of the privilege was intertwined with that of the First Amendment? Because what everyone may say, there is no question but that the position taken by the Puritans in fighting against the oath ex officio was not a position taken against the tortures which the Attorney General now ascribes the privilege. It was not a question protecting innocent Puritans as the Attorney General suggests in one of his brief. I carry them to which one, whether Puritans were guilty or innocent was not important because guilt or innocence doesn't exist when one discuss talks in the field of politics or political dissent. You have not guilt or innocence for the problem of rights. The right to political dissent was the right, which lifts the oath ex officio and then the right which must destroy this immunity law today. Now, I will not go into the detailed history of the privilege which we have given on our brief, which the Court had shown such awareness of. One may say in a sense that the privilege after being -- after being a mark of dishonor for so many years as a result of the publicity put out by various forces in Government and the press has risen to a new high and the result, I think of two forces in this country, one thing, Griswold, to whom we owe so much for his historical study, and the other that worked for this Court in the last term. Here, we have for the first time the privilege lifted to that level of respectability, which is discerned unless history has to be disregarded contrary of the warning by the Chief Justice and Judge Magruder in the Maffie case in the First Circuit. And here is our chance to protect the privilege in the area in which it was intended and that as I think is the Court's function. Now, I have discussed this in terms, not in terms of the sanctions which officers have yet, which was really the burden of our argument in the court below, but in terms of why the privilege prohibits compulsory deals with people when you're dealing with First Amendment rights. But I want to turn to the second point of this argument because it tells --
Earl Warren: Which one, would you limit it to First Amendment rights?
Leonard B. Boudin: Well, I would say at least First Amendment right if the Court -- if the justice will remember, I think it applies to everything. I don't think I should limit it to First Amendment right because I think that the First Amendment must contain the most literal meaning and the most liberal construction that it permits, namely, compulsory bargains in any field are unconstitutional. But if there is a reluctance as there always is despite (Inaudible) also decided in 1896 by Brown against Walker. If there's a reluctance to recognize a new situation which requires an uncovering of the statutes, at least I say, in the area where the privilege was created, let's give it its full meaning. Let's wait until an economic regulatory statute comes to the Court and then decide that issue. I have a heavy burden and I think I'm sustained by both law and morality here, but if a heavy burden here in the attack against Brown against Walker and I don't want to attempt to invalidate every regulatory statute in the field of economic regulations. I think I've answered the Court's --
Stanley Reed: What if --
Leonard B. Boudin: Pardon?
Stanley Reed: If -- if you're going to say that immunity is a -- something that it might be claimed and cannot be done away with, you have to make that general reason out.
Leonard B. Boudin: I think --
Stanley Reed: Or would you say only in First Amendment?
Leonard B. Boudin: No, I would say --
Stanley Reed: Could -- could you say that?
Leonard B. Boudin: I would say particularly in the field of First Amendment.
Stanley Reed: But you have to say either solely or general functions.
Leonard B. Boudin: No, I think I could say if I were the Court, just taking that position for the moment, that we will not pass upon the problem of economic regulatory statutes which don't involve matter -- they don't involve matters of political dissent. We will only decide here one issue. In the area where the privilege had its origin, there, we think clearly compulsory bargains are improper. The kind of reasonable regulation that we think is permitted on the statutes of economic regulations, we will not apply to the First Amendment area. I think a distinction can be made if the Court wants to and particularly because that's the area which is necessary. I'm not sure it's practically necessary in the field of economic regulation. It may be a literal reading of the Constitution as I read it, but the practical necessities for it do not exist there. The First Amendment will not be destroyed and that's what I think we have to protect here, unless we are to say that the privilege has nothing to do with the First Amendment, and I don't think we can do that. Until have I -- without -- without getting Your Honors agreement, I've made the point here that I think that the distinction can be made if one said that at least in the area where the privilege was created, the First Amendment, we will not -- we will insist upon a little reading of the Constitution.
Felix Frankfurter: Are there situations -- are there only some situations, First Amendment and regulatory –-
Leonard B. Boudin: No.
Felix Frankfurter: -- before this whole grand jury proceeding growing out of the saboteur landing and the questions were up for the witnesses who were called and they refused to answer within privilege. You'd have to make a different argument.
Leonard B. Boudin: Well, I think not. I -- you remember --
Felix Frankfurter: That First Amendment, do we carry the First Amendment?
Leonard B. Boudin: No, no, no, everything is not. I want to point out that there is a distinction between one subject, economic regulation and other subjects in the field of what we call public crime. Now, what is sedition to one person may very well be a First Amendment problem to another.
Felix Frankfurter: And now the sabotaging as I'm telling you that is not two things.
Leonard B. Boudin: Well, your --
Felix Frankfurter: Is that regulation? No. Is it First Amendment? Is it?
Leonard B. Boudin: No. But I'm -- of course it may not be a saboteur case. It may actually be a First Amendment case post in terms of sabotage.
Felix Frankfurter: All I'm suggesting is that it could happen to the Court if it isn't bothered by Brown and Walker even though its origin was different with the First Amendment situation. Now, was there an inquiry of alleged espionage of the First Amendment problem?
Leonard B. Boudin: I am suggesting to the Court and I will answer you, sir that I was not prepared to take on all economic regulatory statutes but my view of the Fifth Amendment is that it prohibits a compulsory bargain in any area.
Felix Frankfurter: I understand that argument.
Leonard B. Boudin: Yes. I do not say that.
Felix Frankfurter: I fully understand it.
Leonard B. Boudin: Yes.
Felix Frankfurter: And I fully agree with you with the power to which Mr. Carter presented that situation. I don't supposed there ever was any, things that we -- purpose (Voice Overlap) --
Leonard B. Boudin: I don't think so.
Felix Frankfurter: These are not familiar to us. All I'm suggesting is that the differentiation between lawfully is to me a very difficult one.
Leonard B. Boudin: I think so and it seems to me I may have to come -- fall back on the broader attack against Brown against Walker and say that in no area can immunity be compulsory given and then compel to testify against himself. That may very well be the sound of their argument on the critical analysis that you're giving and I don't withdraw from it, perhaps, and I have not taken the easier burden when I suggest that the First Amendment area is a preferred area to fight this out. And I therefore withdraw from that position. I move to that position. I prefer to say that all immunity statutes on analysis are unconstitutional if they compel testimony that no immunity statute, I would say, is unconstitutional if it represents a voluntary bargain made between Government and the witness.
Felix Frankfurter: What you're saying is you're asking this Court to read the Fifth Amendment literally without any qualification unless immunity is different from prosecution thereof.
Leonard B. Boudin: That's correct. Now, I turn to what I had thought was the most important one.
Stanley Reed: I -- I don't quite understand that unless immunity is given?
Leonard B. Boudin: No, I say that immunity --
Stanley Reed: But, don't you say that no -- no immunity will justify in telling a man to testify?
Leonard B. Boudin: Yes, I may have answered you too quickly, Mr. Justice Frankfurter, you understand --
Felix Frankfurter: Are you -- you would ask the Court to reconsider Brown and Walker and refused to read the Fifth and ask the Court to read the Fifth Amendment literally and not to interpolate or ask to it by implication. No question shall be compelled if the witness against himself in criminal cases unless he'd be given immunity from criminal prosecutions.
Leonard B. Boudin: That is correct. In other words, you have inquired -- I do not concede that in any area, immunity can be enforced and a witness compelled to testify. I do agree that a witness can make a contract with the Government where they use the term “contract or bargain or arrangement,” under which he testified pursuant to an agreement to immunize him and he thereupon receives whatever the immunity is the great take. And now, may I turn to the thought which I have thought was the most important part of my argument but as usual, life moves on in these arguments and that is the point made by the Chief Judge below, the point which we have made now for several years. And that, in a sense, doesn't require -- doesn't require my -- this going Brown against Walker. And -- and I think that the Court understands that whenever my right may be to criticize a court, this Court and the Court against Brown against Walker, I have indicated a very realistic understanding of why Brown against Walker was decided. It was a very bad framework for a decision on this constitutional issue, but I refer to the point made by Chief Judge Clark at page 59 of its opinion when he said this. First, he took our first point which I've just been discussing with Mr. Justice Frankfurter and Mr. Justice Reed, when he said that this statute undermines and so far forth nullifies one of the basic differences between our justice and that of resistance we condemn, namely, the principle of the individual should not to be forced to condemn himself. That is the point which I just made well or poorly. The second point is a distinct point. Practically, as we know, no formal immunity can protect the minority deviator from society dooms when he departs its norms. And his third point is, and realistically viewed, there is much in the defendant's contention that at the end of the road is a charge of perjury supported by the oath of the renegade or a paid informer, this is Chief Judge Clark. And as to the second of these points, our brief elaborates and I wonder whether it is really necessary to go into it fully, the kinds of sanctions operative today in the area of political dissent. We're not now discussing whether they're right or wrong but whether if they exist. The fact that in the areas of government employment, a defense employment, a private employment, people are excluded because of their political views, views which -- which they will be compelled under this statute to reveal publicly and grand jury taken and congressional committee cases privately for the moment in grand jury cases, publicly in court cases. We point out that the areas of extending government control are sold many today. Now, what we really have, almost a close society of the kind we had at medieval days when each man was dependent, not upon his ability as an individual, the old pioneer tradition to this country but was dependent upon his fellows, on his trade union, his housing development, his social club, dependent for his everyday livelihood and for his existence. And the terrible things that we've been through in the last 10 years when we saw a witness before a congressional committee thrown out of a parent-teachers association, and we saw other witnesses their house were stoned, compelled to move with their children. These are the things that we talk about that could not exist in Brown against Walker where the order went back to him desperate cheerfully after he testified before the grand jury. These are the things that have destroyed people today. This is what we say we need protection against, and the Government has used a marvelous expression here, one that I think will play it for the rest of this policy prophylaxis. Imagine calling this prophylaxis, destroying people's lives in so many areas that have no place to go. But when they talked about areas to which prophylaxis is applied, that assumes that there is an area in existence where people can go. Well, if we are to be honest and we must as lawyers and judges and arguers drawn at in many areas in which people who had dissensions can go today, there are not many aspects of life in which even private employment where they can live. And I pass over for the moment, the fact that in the end of this road, aside from the point made by Judge Clark, the end of the road is a detention and a concentration camp, called a detention camp, but I must have used other words, under the Internal Security Act of 1950, if the Attorney General, in a period of national emergency declared by the President of the United States says that he believes that a person is guilty of espionage. Well, can that really be suggested by the Government that all of these sanctions of things we're immunized against, they don't mean that the man who had declared a security risk and who admits it under a grand jury -- a grand jury proceeding that information going to the FBI or a congressional committee proceeding or otherwise that that man is going to go to the passport office on 8th Street and get a passport. They don't mean that that's a privilege he's entitled to. They don't mean that he doesn't have to register under the Communist Control Act. They don't mean that he can -- that he can sign an affidavit now even though he's a Communist and be an officer of the labor union. All of these sanctions are going to operate regardless of the fictitious immunity given under the statute and the Government knows it, and the term “prophylaxis” is a very term in a way because what happens in prophylaxis, you destroy the bacteria or the germs in the body. Unfortunately, we're talking here of human beings. We're talking about the people that'll be destroyed, very good term. Now, we have discussed here incidentally aside from the federal governmental sanctions which they may say are civil but which have risen to such a level and are so multifarious as the word civil is no longer appropriate. They are destructive whether you call them on civil or criminal. Quite aside from that, we have pointed out here that there are state laws that are operative, and that those state laws will apply in the present case and that there's no power on the part of the Federal Government to stop state bodies where there are legislative committees and subpoenaing people after they have revealed their crimes before a federal congressional committee or whether they are -- or whether they are witnesses who appeared before the grand jury who in accordance with the policy now in compliance of cooperation with the -- between federal and state authorities in this period of subversive activities, a high-powered cooperation, there is an intercommunication so that what goes to one place may very well go to the other. We have pointed that we have made three points here and time will not permit me to them, first, the Court on reevaluating the case is dealing with state and federal crimes will, I think, agree with my analysis that Murdock not withstanding again because of the facts in that case. The double sovereignty rule is not the proper rule in this country and that the Federal Government must take cognizance of the possibility of state criminal prosecution. Secondly, that it cannot be given to a single state -- a federal prosecutor the power to enjoin a state prosecution of an individual. Whatever may be the rules of supersedure on the field, you can't give the United States Attorney the right to suspend state laws. And thirdly, that the (Inaudible) to where the Congress even intended it here, although I admit that that's an ambiguous aspect to this legislation. I want to save my few minutes for rebuttal. Thank you.
Earl Warren: Mr. Barber.
Charles F. Barber: May it please the Court. I'd like to address myself first to petitioner's argument that no immunity statute could be valid under the Fifth Amendment. That is that the Fifth Amendment provides a privilege of absolute silence. In the latter part of my argument, I will address myself to its more particular objections to this statute. I'm going to stand back just a moment and look into the past. Petitioner has asked this Court to rethink constitutional doctrine that requires as I think to take a short look at the rules of that doctrine. This case presents a question of the accommodation to be made between two principles of equal dignity, both to be preserved which are here in conflict. Petitioner's dealt wholly with one of this, the principle in which in our law has constitutional sanction that no person shall be compelled in a criminal case to be a witness against himself. I should say at the outset that there may be no doubt about it. That we embrace that principle in words which are recently had been cited by this Court as one of the great landmarks and men struggled to be free. The competing principle is at equal dignity, and stands at the foundation of justice under law. That is that the public has a right to every man's testimony We find evidence that this principle is the more ancient in the declaration of Sir Francis Bacon then the King's Attorney General in the account of (Inaudible) case, which was at trial for contempt, for refusal to answer questions put by the House of Lords. All subjects declared by Sir Francis owe to the King, tribute and service, not only of their hand indeed, but also with their witness and discovery, whether it be of their own fact or another's. When two such fundamental principles come in conflict, the usual judicial method is to seek for an accommodation. When these two principles presented themselves in conflict in the Aaron Burr trial and the question of the scope of the privileges applied to Willie, Aaron Burr's secretary, Chief Justice Marshall at the onset observed that the principle which entitles the United States to every man's testimony, and the principle by which every witness is privileged not to accuse himself can neither of them be entirely disregarded. In the Immunity Act of 1954, Congress has worked out an accommodation between these principles. We are not here concerned with the wisdom of that Act. That was seriously, ponderously debated in Congress. Our question here is this. Has Congress made an allowable judgment, allowable under our Constitution? I rely heavily on history for the entire tradition of Anglo-American Law from the earliest times to the present, not including the -- not excluding the formulation of the Constitution itself and without significant precedent to the contrary, teaches that this sort of accommodation is a lawful and permissible one. The -- the tradition of granting immunity from prosecution in exchange for testimony has roots, definite precedents nearly as old as the precedents which we rely on to show the emergence of the privilege itself. Thus, in 1725, we find the British parliament enacting a bill to indemnify evidence of all present masters and chancery in order to facilitate an -- an inquiry -- I'll correct myself -- in order to facilitate the trial of Lord Chancellor Makerfield who had lately been impeached, a trial I should add not without political implications in that day. This precedent was cited along with a number of others. A few years later, in 1742, in a memorable debate in the House of Lords, on the question of whether a bill to indemnify evidence should be passed to facilitate an inquiry in to the affairs of the (Inaudible), Robert Walpole unto who, until very recently had been Prime Minister. At that time, the Bill failed. It failed on grounds of wisdom. The precedence for such a bill was recognized. As with more following review of the early history concludes and his scholarship in this field, I think is undoubted. The tradition of granting immunity from prosecution as a lawful method of annulling the privilege against self-incrimination is unquestioned in English history. The privilege as petitioner has noted is found in our colonial history as an essential ingredient of the common law tradition. As such, it's found its way into the Bill of Rights. But petitioner's argument that the Fifth Amendment to the Constitution should be read as conferring an absolute privilege of silence, I think is foreclosed by the proceedings in the constitutional convention and in Congress in connection with the enactment of the Fifth Amendment. Madison's journal of the convention shows that when the President's power to grant reprieves and pardons was under discussion.An amendment was proposed. The amendment was this that the language, the power -- the President shall have power to grant reprieves and pardons should be -- that that language should be amended to add the words "after conviction," but his journal shows that this proposal was withdrawn. After James Wilson of Pennsylvania pointed out that and I'm quoting from the journal, “That pardon before a conviction might be necessary in order to secure testimony of accomplices.” James Wilson, who made this observation will be recalled, he's one of the outstanding lawyers at the day. He was the first Professor of Law at the College of Philadelphia, soon to become the University of Pennsylvania, and as Your Honors know, was one of the original members of this Court. We find further evidence that the privilege is embedded in the Constitution in the proceedings in connection with the Fifth Amendment. The language of the Fifth Amendment was originally proposed by Madison. It read as follows, “No person” -- of development clause -- “No person shall be compelled to be a witness against himself.” When this provision came on for debate, John Lawrence of New York raised an objection to that language. He said, “It contains a general declaration, somewhat conquer to laws passed.” He thought, from the annals, I'm quoting from the annals. “It ought to be confined to criminal cases,” and proposed an amendment which was adopted. And so, the Fifth Amendment as we know it reads, "No person shall be compelled in any criminal case to be a witness against himself." It is interesting to note that this refinement of language too came from one of the distinguished lawyers of the day. John Lawrence had been aid to camp to Washington, had been the presiding Judge Advocate in one of the most famous state trials in our history, that of Major John André, and was soon to be appointed a United States Judge for the District of New York. Perhaps, I should mention the citations to the constitutional convention and to the proceedings in the annals because this turned up as we continue to research following the submission of our brief. I have previously given -- given them to petitioner. The reference from the journal of the convention is from (Inaudible)
Earl Warren: Would you -- would you submit a memo of that to us please?
Charles F. Barber: Yes, I'll be glad to, Your Honor. Petitioner has spoken eloquently of the just grievances of the Puritans and other religious descendants. I suggest that they are forever protected against the rebirth of the inquisitions of the 17th century by the First Amendment, so to the right of political dissent unless and until -- and until that crosses the boundary of protected activity by, for example, incitement of the violent overthrow of constitutional government. I will not hear it as the one of the Dennis issues. That is a separate difficult problem. My point is that absolute protection against criminal consequences for peaceable and orderly dissent is found in the First Amendment, but I find no evidence and petitioner has pointed to none that the Fifth Amendment was intended to confer on the witness in a lawful inquiry into serious crime, a privilege of absolute silence. The tradition of granting immunity at a lawful method of compelling testimony is equally embedded in our law which has developed since the Constitution. In 1808, we find Thomas Jefferson granting a pardon to one Dr. Bolling that his testimony might be compelled at the trial of Aaron Burr. I rely on the fact that Thomas Jefferson, who was well acquainted with our constitutional liberty, used that device. As it happened, Dr. Bolling volunteered his testimony, refused the pardon so we do not have a -- a precedent for compulsion. From the early 1800s, the States and since the middle of the 19th century, the United States have had statutes granting immunity in particular kinds of cases in exchange for testimony. By 1892, the constitutionality of the state statute had been upheld in at least eight States, including New York and Massachusetts. In that year, they came before this Court and -- or the federal statute came before this Court in consummate. As we know, the Court there declared unconstitutional, the earlier federal statute, on the ground that the immunity given was not coextensive with the exposure to criminal liability brought on by the testimony.But in that case, the Court suggested the device which has since been so extensively been used. There, the Court said, “In view of the constitutional provision, a statutory enactment to be valid must afford absolute immunity against future prosecution for the offense to which the question relates.”
Felix Frankfurter: Mr. Barber, I suppose you are suggesting that the presidential bargaining -- presidential bargaining business deal with this problem. Is my recollection was correct, that a party requires acceptance that the parties are --
Charles F. Barber: The --
Felix Frankfurter: Either just as that and I (Voice Overlap) --
Charles F. Barber: I think that is -- is a little bit in doubt. The -- the precedence as I understand them are something that Sir John Marshall in the first case so held.
Felix Frankfurter: Yes.
Charles F. Barber: Since that time, the Court so held, referring to this Wilson case but there is a more recent case which involved a pardon where a -- a sentence of death was reduced to a sentence of life imprisonment. The question came up and then the pardon was refused.The question came up whether the pardon was a private act between the President and the person to whom it was extended or whether the pardon was operated to restrain the hands of all departments of the Government, which had before them, a lawful judicial order of execution. The Court there held that the pardon did operate to restrain all departments of the Government. I suggest that may have cut in a little bit to the earlier doctrines.
Felix Frankfurter: And this is to this Court?
Charles F. Barber: Yes, it was sir.
Felix Frankfurter: Well, it does goes often. What about the general amnesty statute, one of Congress.
Charles F. Barber: The --
Felix Frankfurter: Did Congress passed general amnesty statutes?
Charles F. Barber: The -- the statute which Congress passed after the Civil War has usually been -- often been referred to where the general amnesty statute and that was upheld. There is a case involving a conflict between that statute and the pardon of the President.
Felix Frankfurter: That's a different story.
Charles F. Barber: And -- yes.
Felix Frankfurter: (Inaudible) except as to power of the statute.
Charles F. Barber: Yes.
Felix Frankfurter: In other words, the Congress can view on this problem by general amnesty statute.
Charles F. Barber: I think it could, yes.
Felix Frankfurter: Unless they're subject to --
Charles F. Barber: I suggest that this is a sort of extension of amnesty.
Felix Frankfurter: (Voice Overlap) one of the statute they're supposed to make.
Charles F. Barber: I'm not sure I understand the point.
Felix Frankfurter: (Voice Overlap) that the power of the Congress to pass at the amnesty is ambiguous to surrender to withhold history from the acceptance of the same (Inaudible)
Charles F. Barber: I don't -- I'm sorry I don't get this point.
Felix Frankfurter: My question is suppose the constitutionality of that statute.
Charles F. Barber: Yes.
Felix Frankfurter: And I'm suggesting that it wouldn't -- may have had power of Congress to pass that statute.
Charles F. Barber: Well, if he --
Felix Frankfurter: I -- I suppose that general amnesty statute --
Charles F. Barber: He --
Felix Frankfurter: would be (Voice Overlap) --
Charles F. Barber: Yes, yes, he is heading directly into -- weigh the -- weigh the authority to go back 200 years to the origin of that authority. It was originally the sole prerogative of the King to pardon, to forgive for crime. It wasn't until the 18th century, the middle of the 18th century when parliament at the latter days of this Court felt strong enough and flexed its muscle and took upon itself the power to grant pardons. It was called pardons. It was called amnesty. Since those days, 200 years ago, the legislative power to excuse crime, ab initio if you will as numerous presidents, the Civil War amnesty statute being one which comes to mind as the one which has been upheld by this Court. So, we come to Brown versus Walker. Petitioner speaks of that case as coming to this Court by the narrowest of margins. It wasn't by the four-decision. The four dissenting judges drew not upon the authority or the experience of the past. They cited no precedent to the -- in support of their judgment with two exceptions, one being a previous Court of Appeals case which gave rise to the conflict which was resolved in Brown versus Walker. The other, being a Pennsylvania case, where in dictum a, concerning the right of electors to claim an oath of persons coming to vote that they had during the late -- during the revolution remained faithful at all times to the State of Pennsylvania and the United States, was declared a wrongful -- a wrongful vote, one that could not be demanded. The Pennsylvania Court, it is true, talked in terms of the privilege against self-incrimination. When the same problem came before this Court after the Civil War, the statutes of that type were struck down as ex post facto law. Since Brown versus Walker, and I'll deal with some of the points made in the dissenting opinion in a moment. The doctrine of that case has been relied on, referred to, quoted in a dozen of solved cases and it is of a unique quality because since that decision in 1896, I think I am correct in saying that there has not been a dubitante, there has not been a doubt, there has not been a referral back to this closed question in 1896, with one possible exception and that is there have been a few references in dissenting opinions of Mr. Justice Black which refer to the privilege in terms of a privilege of absolute silence. There are comments in phrases that are not directed to the issue we have before us, but -- but for those, I know of not a hint in any opinion of this Court that casts doubt upon the doctrine. Now, to come to the objections, petitioner says that this statute doesn't protect him from criminal prosecution as it must under the Fifth Amendment, taking a point beyond his doctrine that most immunity statute would be justified.He says because he is still exposed to state prosecution. In dealing with this argument, I'd like to approach it in the alternative. I'm in a happy position of having authority about as solid as an attorney before your bar can have that it is not necessary to sustain the validity of a federal immunity statute to protect the witness from state prosecution. But I have here a statute where Congress sought to exercise its entire power and to grant such immunity if it could and we think it could. The problem is an aspect of dual sovereignty which has given rise to many vexing problems in our federal system. This Court, however, has approached that problem in the context of immunity statutes from every end. It has upheld state prosecutions against the argument that the State could not and in fact did not protect against federal prosecutions. It is -- it upheld federal statutes against the argument that they did not and could not protect against the state prosecutions. And finally, it is in the Belmont case upheld a conviction in federal court, not without where he dissent I should note, based upon testimony which had been given in a state proceeding under a state immunity statute. The reasoning follows from a long series of decisions expressing the principles underlying our federation then from fact the Bill of Rights is a restraint on the Federal Government. And so, the grant of immunity has always been interpreted as a restraint only on the sovereignty which grants the immunity. That is the authority. As I have said, I don't have to rely wholly on that. If the Court reexamines this early doctrine and comes to the next question, I think we must prevail on that. As Judge Weinfeld notes in his opinion on this question, the House Report accompanying the Bill, makes it clear that Congress wanted to give the witness the greatest protection which it -- was within its power to confirm. This Court's decision in Adams versus Maryland was before Congress at the time. It was suggested to Congress that while the problem of Adams, the Maryland concerned only the testimony actually given before a congressional committee. It was pointed out that the problem involved in this sort of case was broader.It involved not only the testimony but leads which might be derived from the testimony. A question was raised in the course of the hearings whether the rationale of Adams versus Maryland would extend to protect against criminal consequences and state prosecutions in that broader content. Our position is that it would. The statute is limited to national security measures, treason, sabotage, espionage, like this case. Investigations into matters concerning the national security come close to the heart of the exercise of federal power. Congress, under the Constitution, is obliged to provide for the common defense. This Court could hardly say that legislation like this designed to develop facts relating to wartime espionage is not reasonably necessary and proper and appropriate to the exercise of that federal power. If that is so, under the supremacy clause, we think that a witness who testified under the statute would be protected against prosecution in state courts.
William J. Brennan, Jr.: You're -- you're addressing yourself right at this problem but only to the problem of statutory construction.
Charles F. Barber: I'm addressing myself to the problem of statutory construction, yes, sir.
William J. Brennan, Jr.: And you're going to take up the question of the constitutional power of Congress to do this or you're combining the --
Charles F. Barber: Well I -- maybe we can look together at the statute and then I will state the rationale on which we rely. The statute is found at page 54 and 55 of our brief. It says "But no such witness shall be prosecuted or subjected to any penalty," the bottom of page 54 running over on 55. "No such witness shall be prosecuted or subjected to any penalty on account of transaction matter or a thing." And then, as to the testimony itself, tracking Brown -- the Adams versus Maryland case, it says "nor shall a testimony be so -- so compelled, be used as evidence against him" the last three words "in any court." We think "in any court” means that this Court held in Adams versus Maryland, any federal or state court. We think that a command that no such witness shall be prosecuted applies the proceedings in federal and state courts. Now, the rationale of our power -- the rationale of our argument that Congress has the power to do this, we borrow directly from the rationale used by this Court in Adams versus Maryland. The inquiry is necessary and appropriate to the exercise of a delegated federal power. The means used is not inappropriate to that end, federal law or federal and state laws conflict is supreme. Well, we have the statute before us, I would like turn to this question of whether the statute places in the District Court a non-judicial function. I question whether the Court will reach any serious question in this area. The statute speaks for itself. Looking on page 54, it provides that whenever in the judgment of the United States Attorney, a testimony of any witness and so on, dropping down below the numbers, is necessary to the public interest. He, upon the approval of the Attorney General, shall make application to the Court that the witness be instructed to testify, and upon order of the Court, such witness shall not be excused from testifying. To analyze the statute, we think in the first place, it authorizes the United States Attorney to do certain things. That is one of his judgment, testimony is necessary to seek the approval of the Attorney General and then go before the Court. It empowers the Court to do certain things, to issue an order when it determines that the testimony is within the framework of the statute and no legal reason exists for the refusal to testify. And finally, the statute itself grants the immunity to those who are compelled to testify. I suggest that this talk about the Attorney General granting the immunity or the Court granting the immunity is simply a looseness of expression. It is Congress that grants the immunity when the conditions set forth in this statue are complied with.
Felix Frankfurter: Congress hasn't done -- Congress has intervened between itself in the controversies of the Act and the action (Inaudible) It is the opposite of what it has done (Inaudible) And therefore, we have to see so far as what is concerned, what power, with what power before he's charged. The impact of – when – what finally happens and basing to what Congress has done, I think I answered the problem of what -- where in this Court comes in. But the Court places its (Inaudible)
Charles F. Barber: Let me, first, in explanation of my suggestion point to the fact that I referred to the command in the last sentence of the statute which says “But no such witness shall be prosecuted.” It is that command which I read as what we've talked about loosely at the grant of immunity.
Felix Frankfurter: But suppose -- suppose the Congress -- suppose this statute had said in words and the court – and if the Court shall, within its discretion the Congress such application having been duly made issue at all.
Charles F. Barber: If it said --
Felix Frankfurter: Could that be the problem? Would that present a problem?
Charles F. Barber: Yes, I think it would present a different problem.
Felix Frankfurter: This serious problem -- this serious problem is conferring juries upon court which the Court has no business to exercise?
Charles F. Barber: That is the problem which we will have to discuss for sure. When and if we come before this Court on Sections (a) and (b) of this statute or there --
Felix Frankfurter: Now, I suggest for the purpose that you cannot separate, you cannot discuss (c) without discussing (a) and (b), and seeing whether what is written carries with its differences which -- which do not -- it would admit the series of questions in (a) and (b).
Charles F. Barber: Yes.
Felix Frankfurter: Is there a (c) either in the language that makes it entirely different and if you're right as ultimately that at the ministerial act that the -- the District Court is mandamus.
Charles F. Barber: Yes, I should think so.
Felix Frankfurter: What is their aim in the language? And on the language -- unless the language is very explicit to suggest the -- to understand performance that the District Court will see what is the -- if the language, if the explicitness of the language and the purpose of that in this consideration, that do raise a question there and either do not raise a question (Inaudible)
Charles F. Barber: Before embarking on that discussion, I would like to say that I wouldn't conceive for a moment that the function of the District Court would be a rubber stamp function.
Felix Frankfurter: By ministerial, I would draw a lot of ministerial.
Charles F. Barber: Yes, sir. If we look on page 53 where the Sections (a) and (b) of the statute are recorded, we find in the language to the full margin about the fifth line. Such an order may be issued by United States District Court. Now, that suggests discretion.
Felix Frankfurter: Well --
Charles F. Barber: If we look down in --
Felix Frankfurter: -- if we know how to -- is -- the argument was made from (Inaudible)
Charles F. Barber: Yes, but I – I have to point out that it is --
Felix Frankfurter: You have a right to say that. I understand, all right.
Charles F. Barber: Further to the same effect is the language in the fifth line from the bottom, “And thereafter, having secured the approval of the United States District Court.” Now, when we face that language in a case before this Court, I -- I'm not sure whether our position would be that that gives him a power to approve the exercise of discretion on issues of public policy which has been taken by the Attorney General or whether we will construe it as we do subsection (c) as reading the approval as the approval within a normal function of the Court when presented with the contumacious witness, which is in the nature of, is this a lawful investigation? Is it -- is -- are the questions, questions which may be asked this witness. In this case, it's -- does the inquiry reasonably relate to the national security or defense of the United States.
Felix Frankfurter: Spare on -- spare on this aspect to recall it, Congress has given you if it's to say that he did say approval as to both.
Charles F. Barber: It's fair to say he did say approval as to both and it's fair also to notice that the House Committee Report, which this Court has said from time to time, is the authority when this conflict does distinguish in a murky way between the two.
Felix Frankfurter: Well I -- as you know, I don't -- I still think it's murky.
Charles F. Barber: Yes.
Felix Frankfurter: So why should -- why if you have to do that kind of crab walking, at least I have to do on this two section. Why should the Congress? What reason is there as the language (Inaudible) What reason is there why a judgment had more judges? What's giving more discretion in the reference to congressional demand or acquisition is there with the Attorney General?
Charles F. Barber: Well, I'm -- I'm speculating because I have to reason from the fact. The -- this isn't laid out on the record. The history of this statute shows that there was conflict a between the views of the Attorney General and the views of Congress. The Attorney General is responsible for law enforcement. The Attorney General is the officer of the Government who knows, who is responsible for assembling all relevant information as to whether persons have committed crime within the federal jurisdiction. The Attorney General, from the beginning of this discussion of immunity statutes, which goes back to 1947, whenever he appeared, whenever he addressed the communication to Congress, invited their attention to the fact that in his opinion, it was unsound unless the Attorney General was given an opportunity to express his views, otherwise, Congress might inadvertently confer what's -- what these debates refer to as an immunity ban on witnesses which had no intention to -- to immunize from prosecution. As this conflict came to ahead, the final statute was one which did not give the Attorney General what the opponents of the Attorney General's power called a veto power. He did not give him a veto power but it gave him the privilege of presenting his views to the District Court. Well, per necessitate, there we have a situation where Congress has said, “We will compel this man to testify.” There is a condition subsequent. The Attorney General's view shall be presented to the Court. Well now, in that case, the Court -- there was a contemplation of a function for the Court in giving way to the Attorney General's views. But when they came to the Attorney General's section, there is no such necessity for accommodation. There is, however, a safeguard, a real function in the Court and that is this. Again, we must bear in mind that the things that they were concerned about very seriously was the Immunity Act problem. If before a man was -- come testified and by that claim -- after claim and got his immunity, the Court entered into the picture to determine that the investigation was in fact within the scope of the statute. There was some small safeguard against a grand jury running wild in a proceeding where the immunity statute have been invoked. Now, I suggest that there is a function for the judge, but it is not a function which raises any serious constitutional question as to the exercise of non-judicial function by the Court.
Felix Frankfurter: On the other hand, if it is to contend or would have to contend that immunity extends the State, the potential state prosecution, there's another individual and just might have wanted (Inaudible) whether it's desirable to this plaintiff, the immunity and practices administrated.
Charles F. Barber: That is an original suggestion in the sense that I have seen no inquiry of it and I can suggest another. One of the reasons for the dissent, Wigmore says the only reason to him that makes any sense in Brown versus Walker was that the witness who testified and let loose upon himself evidence which might be used against him might not be able to prove his immunity. The secret nature of the grand jury proceeding was alluded to it. This order of the Court, invoking a statute granted to immunity, of course, is a permanent memorial of the fact that the witness concerned has been called to testify and would indicate in general the subject matter with which he was -- this testimony was concerned, thereby, making it more facilitating his defense, should he be prosecuted in a state or federal court on the basis of this testimony? Now, I have no -- nothing in the congressional proceedings to point to -- to indicate that that was seriously considered by the Congress, but it is an aspect of the statute which helps us meet one of the objections which was urged very seriously by Mr. Justice Shiras in his dissenting opinion in (Voice Overlap) --
Felix Frankfurter: Mr. Barber, you -- you have to get the Court in somehow a grip on -- on the -- in order to make a section to your sanction apart from the congressional power to overcome this intent in connection with this (Inaudible) You have to have the Court because no administrative agency nor executive agency to have power to convict for contempt but is the (Inaudible) Well, you have to get the Court (Voice Overlap) --
Charles F. Barber: Of course. Of course that's that -- that is our -- our first position. We say that this function of the Court is a description in the statute, obvious function whenever a contumacious witness is brought before it. As I understood your argument or your suggestion, I should say, it was the -- well, this must mean something different because it's in the statute. So, we have been exploring what possibly different it might mean.
Felix Frankfurter: (Inaudible)
Charles F. Barber: Yes.
Felix Frankfurter: It must make -- this and in doing this statute in its entirety, not to the separate rules, of course, this is an exemption and the language might have to (Inaudible) it is not the accountable, a reading of the entire of the Court in relation to a Senatorial Committee or the Senate. Think of a court, think of giving a power and a power to a court to exercise the different judgment from that of the Senate of the United States, the Congress of the United States and the Attorney General, and yet, you have to convince the Court when it comes to -- your opinion, the Attorney General of the Court must be obedient. That's when it gets down to, to the practicality.
Charles F. Barber: I think that's -- that certainly is our position. I would argue and support of our position that there is nothing in that Section (c) that requires a broader or different interpretation. And that if it be deemed that a broader and different interpretation raises a serious constitutional question, we have weighed the authority that that interpretation which raises the question should not be read into the statute, but we should --
Felix Frankfurter: I'm, happy to -- I'm happy to infer this.You do not need to think an argument as (Inaudible)
Charles F. Barber: Yes, sir.
Stanley Reed: Do you find any inconsistency in the statute of Section (c) where it -- that no such witness shall be prosecuted that takes the defendant to enforce to on account of any transaction, matter or a thing concerning which is to tell in testifying and the latter clause nor shall testimonies so compelled we use as evidence in any criminal proceeding against him in any court?
Charles F. Barber: On that particular question, we do have legislative history that explains it. The statute down to the last phrase where the statute has originally ground, it was pointed out that this might loose for the statute the advantage which this Court had just found in Adams versus Maryland. So, the particular language from the Compulsory Testimony Act of 1895 was attacked right on. So, there is an overlap. In other words, I would suggest -- it would be my position that the earlier any matter or a thing includes -- includes, of course includes the testimony and the evidence given in response to the question. But this was added out of abundance of caution when it was pointed out that the statute might be read and not to confer the immunity from state prosecutions which the Court had found in the 1857 Act and answers to merits.
William J. Brennan, Jr.: The First Clause in view of the Murdock case might not apply to the prosecution of the state court.
Charles F. Barber: That was the -- that was the reason.
William J. Brennan, Jr.: While the clause was added, it might prefer only to testimony that he gave instead of the crime which he might be charged it upon.
Charles F. Barber: Yes. Yes, I think those are the reasons that were added. Now, my suggestion that the First Clause includes state prosecutions is taken from the last line of page 54 but no witness shall be prosecuted. I read that as a command, both to federal courts and the state --
William J. Brennan, Jr.: Even though -- even though they didn't understand anything about state courts?
Charles F. Barber: Yes sir, yes, sir. The House Committee said this, “The language of the amendment that no witness shall be prosecuted and so forth is sufficiently broad to ban a subsequent state prosecution if it be determined that Congress has the constitutional power to do so.” In other words, they were intentionally granting the statute to have the broadest possible scope as they say to confer the fullest protection that can be afford of the witness under the Constitution.
William J. Brennan, Jr.: From your point of view then, the addition of the last clause was unnecessary.
Charles F. Barber: That's right, yes sir, but out of caution --
William J. Brennan, Jr.: (Voice Overlap) of caution.
Charles F. Barber: That's the way I understand the legislative history, yes. Finally, petitioner makes an attack on the regularity of the proceeding, good faith of the Attorney General. He said, “This is an inquisition on political belief, the vise to entrapping in perjury.” I won't take long on the first aspect of that question, that suggestion. The questions which were asked, which this Court noted when they turned to the question, were not about political parties or political beliefs. It's whether various persons employed by the Government did engage in a common enterprise, having its objective the attaining from Government files of classified information relating to the national defense and security of the United States. That is espionage I think by any definition of the word. The second branch of this attack rest on proposition that petitioner should be excused from testifying because he fears a prosecution for perjury. That suggestion goes to the bottom of the adversary system. Cases are decided on facts. It's been the experience of the common law that facts are more likely to be developed if the persons asked to testify to those facts are compelled to speak truly on pain or punishment. For that reason, this immunity statute of course excludes convictions for perjury. When this Court first faced that problem in the Glickstein case in 222 United States, it said, “This must be the result as it cannot be conceived that there is power to compel the giving of testimony where no right exist to require that the testimony shall be given under such circumstances and safeguards as to compel it to be truthful.” Petitioner suggests that this statute may be used as an instrument of government -- governmental tyranny. So, it may, so may any governmental power. If I may borrow from Mr. Justice Holmes, I think we're entitled to assume that it will not become an instrument of tyranny while this Court exists. The Department of Justice regards the power to invoke this statute in the words of the House Judiciary Committee as one of tremendous responsibility. The exercise of which must be guarded by discretion and wisdom.
Felix Frankfurter: I'm bound -- I don't quite see the relevance of this because if I accept your views, it's unreviewable.
Charles F. Barber: Oh, of course it's not, Your Honor.
Felix Frankfurter: Pardon me?
Charles F. Barber: I should assume not.
Felix Frankfurter: Not in the --
Charles F. Barber: I should assume that if the Attorney General is plainly and clearly proceeding beyond the confine of the statute, if the Attorney General -- if a speech should be given, let's not say the Attorney General. Put it down the line, that this proceeding is just to get these people then --
Felix Frankfurter: Pages --
Charles F. Barber: I --
Felix Frankfurter: -- that come from such explicitness.
Charles F. Barber: Well, this is in the area of reviewability of judicial -- of administrative discretion where the discretion had been placed in the Executive Department. Now, this Court has --
Hugo L. Black: What do you mean there by discretion? I thought you meant that the statute --
Charles F. Barber: Take to --
Hugo L. Black: I thought -- I had understood your argument to be that Congress had delegated to the Attorney General a complete power to determine whom he could summon before the grand jury or whatever it is and that after that summon had occurred that would be a complete immunity given.
Charles F. Barber: That's correct. Yes, sir. Now, as I understood Mr. Justice Frankfurter, the question was, are there any imaginable circumstances where the Court could step in and restrain the exercise of that discretion?
Hugo L. Black: Of the granting of the immunity?
Charles F. Barber: Of the granting of immunity, and I'm -- my answer is that I am not prepared to say that there would be no circumstances where the Court would not have a function, would not -- under the law as we know it, would not have the power to restrain that exercise.
Hugo L. Black: In your judgment, can you --
Charles F. Barber: But that's -- that time is taking it to the most extreme case.
Hugo L. Black: In your judgment, does the statute give the Attorney General the power to delegate his power and (Inaudible)
Charles F. Barber: I don't think so, and I don't think so. I'd say the statute places the -- the exercise of judgment in the first instance in the United States Attorney, but it permits him to go before the Court only with the approval of the Attorney General. Now, whether that is a personal approval or approval of the -- the officers that the Attorney General makes responsible for this, of course, at the present time the most active person in it is the Assistant Attorney General in charge of the Internal Security Division. Now, in this case, the judgment, the discretion was exercised by the Attorney General in person as shown in the record by his letter to Judge Lumbard, the United States Attorney in this case.
Felix Frankfurter: I – I suppose what you --
Charles F. Barber: The -- the question whether it could be delegated to an Assistant Attorney General, it isn't this case. I'm not sure what I would say if we have to face it.
Felix Frankfurter: I suppose what you meant of unimaginable -- the report to serve by this (Inaudible) about this case. You don't have to narrow the case to something that will attract the conflict of man kind etcetera, etcetera. The Court could not -- the enforcement are not depriving something that (Inaudible) as we have to, is that it?
Charles F. Barber: Thank you, Your Honor, yes. My suggestion might (Inaudible)
Sherman Minton: As I understand it, you'd be saying that the Attorney General may exercise his discretion, but it got to use the discretion that can't be arbitrary to push it. And then, it must be some mental process of responsible discretion or else he's not conforming to his power.
Charles F. Barber: Wherein the judgment in subject to the approval of that was a --
Felix Frankfurter: As you think --
Charles F. Barber: I'm not sure how far would that carry me and if I thought about it --
Felix Frankfurter: I should think that anybody as Attorney General once you gift or not or couldn't give any -- draw a doctrine that would -- would indicate in (Inaudible) mind as he had. It would create a situation that you wouldn't leave anything.
Charles F. Barber: Yes, Your Honor. In closing, I'd like to flash back on where I started and that is this. Our question is whether Congress has made on allowable judgment. I think we find that the tradition of our law answers yes. But now, much can be said, pro and con on the wisdom of this legislation. One of the startling thing in the preparation of this case has been to know that the arguments in Congress in 1952 and 1953, the arguments in Congress in 1895, the arguments in Congress in 1857, the arguments in the House of Lords in 1803, the arguments of the House of Lords in 1742 are all but for style of language interchangeable. The question of the wisdom of this sort of legislation when you're forced to make an accommodation between two principles which you hold dear is a hard one to make under our Constitution that judgment in the first instance is placed in Congress. Congress has made a decision. We think that decision is unallowable. And for that reason, we respectfully submit that the decision of the law below should be affirmed.
Leonard B. Boudin: Mr. Boudin.
Leonard B. Boudin: Whether it is worth, the argument made in Congress, in this session were very different from those historically made and adjust themselves to the point which I've made. Secondly, I don't know if any English immunity law which the Court has upheld as requiring compulsory confession, there may be such, but I don't know of any. That (Inaudible) which is referred to here wasn't as I recall it and defeated after Lord Hardwicke, not making the speech which the Government puts in his brief said, “That the public has not a right to require from any man they should betray himself because every man may plead. He's accepted from that demand by the public faith.” The contrary to the argument made by the Government, the Government began by denying that Section (c) is an appeal to the Court's discretion. Today, it almost moved to the point of denying that (a) and (b), the English congressional committees gives the Court any latitude despite the use of the word "approval". Now, I suggest that Congress must have intended that a court have a greater power of discretion in connection with grand juries because historically, that's in the Court's power rather than the contrary with respect to the congressional committee. Thirdly, I want to point out that in Burdick against the United States, the case which was referred to by Mr. Justice Frankfurter, a pardon withheld not compellable, 236 U.S. Fourthly, the question here is not whether Dennis is right. The question is whether a compulsory confession can operate to a person's injury not whether Congress has the power by testimony outside of its own to restrict him activities and put him in jail and oppose other sanctions against him. Now, finally, I think we have to recognize the reality of the situation which didn't exist in 1896, didn't exist in 1857 or in 1862 where the time of any of the Lords. We have gone through a terrible period here and neither powerful dramatically nor do I have to as the Court knows, whether it's been happening in the last eight years in this country, we're going through a loyalty oath and acquisitions and congressional committee hearing, a terrible thing. No matter what side you're on, we all recognize the destruction it's made to men's lives, suicides or many in this area and to men's souls. And I suggest here that this Court which has began the process of stopping the destruction of the First Amendment and the destruction of the Fifth Amendment has an opportunity today not to solve the whole problem, obviously not, but to play an important part in accordance with the historic function in and of the courts under the First and the Fifth Amendment of Article 3 in protecting our civil liberties by saying at least here, we will stop. We will not let a man destroy himself out of his own mouth. That's the only function I ask this Court to perform today. Thank you.