Earl Warren: Number 261, John T. Watkins, Petitioner versus United States of America. Mr. Rauh, you may proceed.
Joseph L. Rauh, Jr.: May it please the Court. This case is here on petition for certiorari to review a decision of a full bench of the Court of Appeals for the District of Columbia Circuit which had reversed a three-judge panel. The three-judge panel had reversed petitioner's conviction for contempt of Congress in the full bench with the two judges dissenting, reversed the panel and affirmed petitioner's conviction.
Felix Frankfurter: The panel thing is not printed, is it?
Joseph L. Rauh, Jr.: No, sir, but it is substantially identical with the dissenting opinion and there is a footnote in the dissenting opinion --
Felix Frankfurter: Yes.
Joseph L. Rauh, Jr.: -- stating that it is substantially identical.
Felix Frankfurter: Both the majority and the minority in this case?
Joseph L. Rauh, Jr.: Yes, sir.
Felix Frankfurter: The panel consisted of (Inaudible)
Joseph L. Rauh, Jr.: Yes, sir and the dissenting opinion of Judge Baskin became the majority opinion after the reversal. The essential facts are these. Petitioner was subpoenaed to appear and did appear before the House Committee on Un-American Activities in April 1954. Now, before he appeared, two witnesses had appeared before that Committee, one several years before and one recently before and had identified him as a Communist during the middle 1940's. Now, at the opening of his hearing which was in Washington D.C. on April 1954, the Chairman simply -- of the Committee simply announced, “We're here in continuation of what happened to Chicago.” Now, that was a hearing some six weeks before. Now that, at the outset of the hearing in Chicago, the Chairman of the Committee had made a lengthy pro-formal -- formal opening statement listing past and pending bills and giving the general aims and purposes of the Committee in this hearing and there will be more of that opening statement later. Now, at the hearing, petitioner testified freely and fully about himself. He affirmed his cooperation with the Communist Party during the years, 1942 to 1947. 1942 to 1947, he said “I cooperated with them. I was so close to him that some of them might honestly have believed I was part of them, but I didn't join.” He testified that in 1947, the middle of 1947 at a convention of his union which was then the Farm Equipment Workers, he got in such a bitter battle with the Communist over the question of compliance with the non-Communist oath provisions of Taft-Hartley this cooperation was over and from then on, he's been an anti-Communist. But after telling them all about himself, then it has come to all witnesses before the House of Un-American Activities Committee, he was asked the name certain other persons who in -- in the mid-1940's had been members of the Communist Party and it was here and here only that petitioner bought. Now, on page 85 of the record is his statement. “When he refused to say whether certain persons had been members of the Communist Party in the middle 1940's, I would like to get one thing perfectly clear Mr. Chairman, I am not going to plead the Firth Amendment.” I would just like to -- to interpolate here for the Courts, for the clarity of the position and the problem of the petitioner. At the time he made his decision on what to do before this Committee, he had only three alternatives. This Court's decision in the Rogers case, made it impossible for him to do what might very well have been his first choice. Namely, to have told all about himself and pleaded the Fifth Amendment when it came to informing on others. That is not as he was informed a legal possibility. The Fifth Amendment is not available. The self-incrimination provisions are not available, if you have already incriminated yourself by the -- under the (Inaudible) case. So, his choices, with that choice ruled out were these three, he could have known all the information from the Committee by pleading the Fifth Amendment as to his own personal activities and also as to the others and it is this Court's decisions in the (Inaudible) cases. It was clear he had this right or he could have told everything. Namely, he could have told all about himself and he could have named the others. As to this, he would then been an informer, the worst crime he can commit among his own associates. And the third, the third is to tell about yourself, which he was not ashamed of it, which he was willing and did do and then say, this is what he did choose. This was the third alternative. “You don't have power to force me to name the other persons, because it's beyond your jurisdiction and because you are engaged in exposure.” And this is what he said then as he chose the alternative. “I would like to get one thing perfectly clear Mr. Chairman. I am not going to plead the Fifth Amendment, but I refuse to answer certain questions that I believe are outside the proper scope of your Committee's activities. I will answer any questions which this Committee puts to be about myself. I will also answer questions about those persons whom I knew to be members to the Communist Party and whom I believed still are. I will not, however, answer any questions with respect to others with whom I associated in the past,” then I skip. “I do not believe that such questions are relevant to the work of this Committee nor do I believe that this Committee has the right to undertake the public exposure of persons because of their past activities.”
Felix Frankfurter: Well, he do (Inaudible) then you indicated a minute ago. He would inform you that word as to those whom you regarded a Communist.
Joseph L. Rauh, Jr.: That's correct, sir, I did. It is narrower than I stated. Now, when petitioner finished his statement, the Committee did not contradict his assertion that they were engaged in public exposure. The Chairman simply paraphrased the Committee's resolution and said, “Answer”. “Petitioner stuck to his prepared statement. They asked him a numbers of 30 odd people. He is stuck to his ground, but he would not name those in the past who he no longer felt were members of the Party.” Here, the Committee had before him an expert in Communist activities in the labor movement. But when he refused to inform on these others not one more question, not one question about Communist techniques in the labor movement, he was discharged.
Felix Frankfurter: Are the -- are the questions that were refused, all in relation to his knowledge of named persons --
Joseph L. Rauh, Jr.: Yes, sir.
Felix Frankfurter: -- or any other question? No other --
Joseph L. Rauh, Jr.: All in -- yes. The answer to your question is -- is yes. There were no other questions in the indictment except those as to --
Felix Frankfurter: Merely a series of names about who he was interrogated and as to whom he refused to open his mouth?
Joseph L. Rauh, Jr.: Precisely.
Felix Frankfurter: That's the whole case?
Joseph L. Rauh, Jr.: Yes, sir. Petitioner was cited and indicted on seven counts for contempt to Congress. He was tried without a jury at the trial. Petitioner sought to prove that the purpose of the Committee had been solely one of exposure, by which I mean injurious publicity had been the sole purpose of the Committee. And if petitioner sought to prove this through three avenues approved. One, official statements and reports of the Committee in the members of the Committee on official business that the Un-American Activities Committee asserts this right of exposure independent of any legislative purpose. Secondly, that the questioning of petitioner and his colloquies with the Committee demonstrated this purpose of exposure. And thirdly, that the Committee had all the information and sought that petitioner has filed and didn't even bother to examine.
Felix Frankfurter: May interrupt you once more? Did the Committee walk into the door that he opened and say, “You stated you're ready to testify about former communists and those who still are, we now advise you that the Committee has good reason for believing that Jones, Smith, Robinson, et cetera are within that category. You may have it with information, on the basis of our information, we now press these questions.” Is there anything like that?
Joseph L. Rauh, Jr.: Well, I must admit that the -- that the Committee, that two of these two people who have identified him had also identified most of them.
Felix Frankfurter: No, but I mean the Chairman?
Joseph L. Rauh, Jr.: No, there is nothing said by that.
Felix Frankfurter: I'm not talking about anything outside. The Chairman, after this statement, if the Chairman say, “Accepting your position, accepting your -- a certain withdraw about yourself, we do like to inform you we're pressing these questions because we have reason to believe they come within your vow of readiness to testify.”
Joseph L. Rauh, Jr.: No, sir. That goes with no such reference at all.
Felix Frankfurter: He simply asked. “We want to ask you about John Smith,” and he said, “I won't talk about it.”
Joseph L. Rauh, Jr.: Precisely.
Felix Frankfurter: Without any qualification --
Joseph L. Rauh, Jr.: Precisely.
Felix Frankfurter: -- that they drew the circle and -- and stuck to it and he was --
Joseph L. Rauh, Jr.: He was asked the question with about 25 names in it and he pulled one name out of it and said, “That fellow is still is and I won't answer as to the rest.” Now, the trial court held that all of the petitioner's evidence and proof of exposure was irrelevant, apparently and I say apparently because the district judge did not give his reasons for any of his rulings nor for the conviction. Apparently, accepting a prosecuting attorney's position which I could phrase as follows, “Fifth Amendment or nothing, it is the position of the Government in the trial courts,” although I am not quite as clear that it is their position here, although it is quite close to it that the only defense to a contempt of Congress indictment in this area of Communism is the Fifth Amendment. That was squarely stated by the prosecuting attorney in the lower court here and it was apparently and I say apparently because the judge did not say anything except, “Your evidence is excluded,” the disposition of the court below. Now, the petitioner was convicted. He appealed as I said before of the three-judge panel, the conviction was reversed, then there was a reversal of the reversal and the conviction was affirmed 62. Those are believed are the essential facts. The first point we lay before, Your Honors, I do not believe we need to elaborate on to any great extent. It's made in our initial and our reply brief and it is that the power to investigate does not encompass exposure unrelated to a legislative purpose. And when I say I don't believe we need to pause long on this point, I say it because it is an obvious corollary of the doctrine of separation of powers. And also, because I do not understand the Government to -- seriously to contest the proposition, that exposure -- for exposure sake is beyond detail. Now, the proposition, it seems to me is simple. The legislative function is to determine general standards of conduct. The executive function is to prosecute for infractions of the general standard of conduct and the judicial function is to determine guilt when a congressional committee determined a standard of conduct to debar, namely past membership in the Communist Party and then, through exposure by calling him before them, prosecutes him, forces him to answer. And then finally, through the determination of guilt by their accusation of him and their reports about him, keeps injurious publicity upon him, they are combining all three functions in one. I would suggest to Your Honors, we use the different example in our brief but supposed we went back to the 1910s, during the period when Mr. Mann was considering and bringing before the Congress, the Mann Act. Supposed at that time, he had felt, “I cannot get a bill through Congress.” Suppose he had felt that President Wilson, I believed it was, would not have sign such a bill and indeed he didn't have the votes to pass it over a veto, but he says to himself. “I can accomplish the same thing by simply calling before the -- our Committee. I'll get a right to investigate and I'll call before the Committee everybody I can find who I have any suspicion may pass in the past have violated the Mann Act, what is now the Mann Act.” In other words, supposed Mr. Mann had sought to do by injurious publicity exactly what they did by legislation. I think this Court would have had no hesitancy in striking that down as an effort to accomplish without legislation to substitute purposes of legislation. Now, the Government does make two tangential points about this so I'd like to refer to, although as I -- I honestly believe they are not in --in wholehearted disagreement on this point. First, the Government refers to the quote, “informing function” of Congress as one that has been written up in the books, although admittedly, not in the books of this Court. Now, that of course phrase, “informing function” goes back to President Wilson at the time he wrote his great text on the subject of Congress, but President Wilson's reference to the informing function was to something different. It was to the internal debates and give and take within Congress. Indeed, President Wilson's illustration of the informing function was the question and answer period in the House of Commons about as far away from the idea of compulsory testimony being used for the informing function as possible. Now, it is true when the Government cites a number of articles at page 55 of its brief that President Wilson's informing function has carried over in some articles, never ratified by this Court to suggest an informing function in another category. And here, it is in the supervision of public administration. Now, I do not have to carry the burden before this Court to argue that there is or isn't such an informing function when it comes to the supervision of the executive branch in the administration of law in America, because we do not have that case here. Here, we do not have the informing function of a supervision of public administration. Here, we have the informing function if you seek to call it that. Here, we have the exposure, injurious publicity applied to a private citizen. Now, the Government also in -- in another tangential point refers to statutes such as the Lobbying Act and the Public Utilities Holding Company Act, where Congress, by statute has required publicity as a method of regulation. And I'm prepared to rest our case on the distinction between Congress passing a statute requiring the publicizing of information and a Committee of Congress, maybe a single congressman seeking to accomplish that same result through the subpoena power. Now, if Your Honors please, when you have a statute, it's general in application, it's prospective in effect and it's definite in operation. When you have congressional committee seek to operate both as legislature judge and jury, then the exposure becomes discriminatory in application, retroactive in effect as it is here and arbitrary in procedure. I do not think it is too much to say, but what we have in our case here and what the House Committee's practices have been is that lawmaker investigator, prosecutor, judge and jury, all five reside in the one subcommittee and may reside as it has in the past in one individual.
Felix Frankfurter: How can I tell just from the question that was put that their purpose was or the -- or the scope of the question was nearly to expose?
Joseph L. Rauh, Jr.: That's point two and I'm -- I'm really right there if --
Felix Frankfurter: All right.
Joseph L. Rauh, Jr.: -- may I please. I just think --
Felix Frankfurter: You take your time.
Joseph L. Rauh, Jr.: -- there is one further observation on the distinction between the Congress engaging by statute requiring the publicizing of certain information. Maybe I'm blabbering this too much, but I just like to point out that it does seem to me that it was the blurring of this distinction in the past 10 years, which has caused the concern over the action of congressional committee to which this Court has adverted in both the Rumely and Quinn cases.
Felix Frankfurter: I suggest that it's a very almost impossible abstract question that you're asking us -- asking to -- to address ourselves, because you certainly aren't going to urge that they must have an immediate bill in mind, that they must pass an enactment. And therefore, we certainly aren't going to argue, I suppose that they can't decide whether they should pass a bill.
Joseph L. Rauh, Jr.: Certainly not, if Your Honor please.
Felix Frankfurter: And therefore, that has to be preceded by inquiring and once you begin to argue whether that's merely informative or -- or pre-legislative, I don't think it is a very profitable line of inquiry, is it?
Joseph L. Rauh, Jr.: I think it's -- it's not only profitable. I think the entire separation of powers depends upon making this light of inquiry. However, I must say that --
Felix Frankfurter: That the light of inquiry is that it can't use its activities, merely for purposes of exposure. I don't think that needs argument.
Joseph L. Rauh, Jr.: Well --
Felix Frankfurter: If by your talking, you tell me when it is and when it isn't exposure, that does require --
Joseph L. Rauh, Jr.: Well, I -- I just said I may have deliberated too much the -- what I wanted as the hypothesis in which I would make my argument that there was exposure, the fact that no such power exist. I -- I now pass to the point two of petitioner's argument.
Felix Frankfurter: Congress isn't the U.S. Attorney or an Attorney General.
Joseph L. Rauh, Jr.: Well, maybe I should have simply assumed that that was the law that the -- that I couldn't find, just the Hornbrook case to give me that, so I thought I'd better argue with it. So, we pass to point two of our argument, which Government does seriously contest and that is that the purpose of the Committee here in interrogating petitioner was to expose him and his former associates to scorn and ridicule. Now, if Your Honors please, I'm not bringing to this Court a closed case because I believe that there were closed case about whether it was exposure and legislation. A certain deference to Congress might very well warrant that all doubts be resolved in their favor. We bring to this case -- this Court a case that if we haven't shown this is exposure for exposure's sake, I honestly believe it can't be shown. If Your Honors will read the questioning of petitioner from pages 70 to 90 of this record, you will not find one question of any possible relation to any possible legislation. Now, I quite agree with Justice Frankfurter's implication of this question that you may have to ask a lot of questions that are unrelated to a specific bill in order to find out what your legislation ought to be. But when -- but here, by both what they asked petitioner and by what they didn't ask him, it's perfectly clear that all they wanted from him were names, names, names of human beings to determine whether in fact they have been Communist in 1945. Once, he said, “I will not give you those names. I will not tell you where these people were,” they get rid of him. They told him they didn't want to ask him anything. Now, they didn't have before him a man without knowledge in this field. I submit that Mr. Watkins is an expert. He had cooperated with him and he had broken with them and what had he broken with them over? Compliance with the very statute, namely the Taft-Hartley Act non-Communist previsions, which if there was to be further legislation would have to be amended or changed or -- or additional provisions provided, not a question. And when he said to them as I read the statement, “You do not have the power to engage in this exposure,” their answer was a quotation, a paraphrase of the authorization prevision and as answer you are directed to answer the question. In other words, the -- the questioning is clear and therefore, I may have again unduly complicated my case by seeking to provide so much additional evidence of the -- the purpose of exposure. In other words, we have in the record and in our brief pages after pages of proof that the House Un-American Activities Committee asserts this independent power of exposure. Now, it did seem to me that that was relevant evidence and so to as Judge Edgerton, that the fact that a Committee asserts a power can be considered in determining whether it was exercising that assertive power at a given time.
Felix Frankfurter: How long was he understands throughout?
Joseph L. Rauh, Jr.: There -- I would say that it was -- was an hour about. I would say there were intermissions, but I must say --
Felix Frankfurter: Or totally an hour.
Joseph L. Rauh, Jr.: Yes, sir, but you see that most of that was -- was asking him to -- to tell about himself.
Felix Frankfurter: But I was going to --
Joseph L. Rauh, Jr.: It was about five minutes at the end when this comes up of completeness.
Felix Frankfurter: During that hour's testimony, what was the subject matter of their search into him?
Joseph L. Rauh, Jr.: They read him what Rumsey and Spencer, the two previous witnesses had said about him and then probed on whether that was true about him, then they asked him about the --
Felix Frankfurter: And he was forced coming in all of those questions?
Joseph L. Rauh, Jr.: Yes, sir. That was consistent with his position that he was not ashamed to tell about himself, but he would not turn informant.
Felix Frankfurter: And then they -- is this toward -- you've just indicated this was toward the end of the inquiry?
Joseph L. Rauh, Jr.: Yes, sir.
Felix Frankfurter: And then they asked these questions about these persons --
Joseph L. Rauh, Jr.: Yes, sir.
Felix Frankfurter: And as you've indicated to my earlier question, if he -- when he said, “I won't talk about these people” then they dropped him?
Joseph L. Rauh, Jr.: Yes, sir, and he was excused.
Felix Frankfurter: Does that summarize that hour?
Joseph L. Rauh, Jr.: Precisely. Now, getting back to this background material of the House Un-American Activities Committee, the Government's position is that Your Honors cannot consider anything, except the authorizing resolution and the questioning of petitioner. Now, I am willing to rest our case on the questioning of petitioner, but I do not see on what theory you should deny yourselves, evidence of an assertive power by the Committee if a man says he‘s going to murder someone else.You can consider that in relation to the fact that there was a death a little later. I do not see that there is any difference in this situation. Nevertheless, if Your Honor, if -- if the questioning is as clear as I feel, this additional assertive power would not be necessary, but I do feel that Your Honors are -- are free to examine that and it does corroborate and it sort of sets a background that a man has claimed he has the right of exposure, seems to me to set a background when you find questioning which seems so clearly on its face to be exposure. Now, what does the Government say in opposition to this overwhelming proof of exposure that we have presented? Well, distinguished Solicitor General concedes as I think he must that the Government, that the Committee was not interested in communist techniques in the labor movement, that they had no interest in how the communists were working. They come up in this Court for the first time with the following proposition. What the committee wanted to know was the mathematically exact number of communists in the labor movement in the middle 1940s to be determined by naming and numbering every one of the players. Now, that is the position as I understand it of the Government here that the Committee's purpose was to find the exact number of communists in middle 1940s by getting the names of each one and holding them. Now, I sympathize. All I'm asking with the Government that they had a hard problem of finding a legislative purpose from questioning like this, but I do say that it attacks all our ability to believe, to think that a Committee was seeking to make a retroactive census of the communists in the middle 1940's.
Speaker: Is there any proof that the Committee already had these names?
Joseph L. Rauh, Jr.: Well, yes sir. They had the names from Rumsey and Spencer, but I'm not suggesting the Committee that that's a proof that they were in fact communists. What the Committee was doing here was really trying to make a legislative trial of each one of these people to determine whether they were communist. They had the names, but that alone doesn't determine whether they were communist or not, for example Mr. Watkins himself, they had his name.Now, he says he testified under oath he wasn't a communist. What they were doing was taking all these names and then running a sort of a legislative trial over each one these. Now, the Government doesn't suggest, if Your Honor please, how this mathematically exact number of communists in the mid-1940's in the labor movement would help them with any legislation, that they say that was the purpose of the Committee, was to find this mathematically perfect number.
Felix Frankfurter: It might indicate the -- the size of the magnitude of the problem.
Joseph L. Rauh, Jr.: It -- it would indicate the magnitude of the problem back in 1945, but the Committee, however, never suggested that that was their purpose and indeed and I think this is -- this would really to settle the point. Indeed, the committee didn't say to Mr. Watkins, “How many communists were there then?” They didn't say to Mr. Watkins, “Can you name any other communists there?” They clearly were not engaged in trying to find this retroactive sense. Of course, they could have got it from the F.B.I., I suppose.
Felix Frankfurter: Am I wrong in having the impression that Mr. Hoover almost annually gives us a statical account?
Joseph L. Rauh, Jr.: No, you're quite right, if Your Honor please and just how long ago we had that, I'm not very clear, but nowhere as it suggest that how the mathematically precise number of communists and labor movement in middle 1940s will help you pass legislation in 1954, when you don't even asked about the statutes that either intervened and when the middle 1940s where a period of what you might call a -- a friendliness towards the communist movement and then on middle 1950s of the exact opposite. It was trying to find the census at time which wouldn't be helpful to determine your action at a -- at a later date. And as I say, the Committee never suggested this was their purpose. Their action show it wasn't their purpose because they didn't ask him how many there were. So -- well, to come to the Government's other contention of why this was an exposure, it is a fact and I call Your Honor's attention to the opening statement of the Chairman of the Committee at page 43 and 44 of the record. Now, in a two-page lengthy opening statement, this was six weeks before petitioner testified in Washington. This was the opening statement in Chicago six weeks before, but in the opening statement in Washington, they refer back to this. This is a -- what you might call a gently causing statement about the past activities of the -- of the Committee. And there is a reference in this statement on -- in this opening statement on Page 44 to a bill. This is the second paragraph on page 44, to a bill which would deprive Communist infiltrated labor unions of the facilities of the MLRB. Now, if your Honors please, that bill was enacted or rather another bill was enacted but on that same subject. Now, here is an opening statement telling all about your activities. Immediately thereafter, they go into all other sponsor activities, communist at farms, communists in the Government and all other activities. And then, they come to this fellow, Watkins, and they asked him questions that haven't any relation whatever to this bill. And yet, they say because this bill was mentioned, therefore, a question that has no relationship whatever to the Bill is in some way to be protected. Now, it maybe, it may very well be that if the Bill haven't been mentioned, the questioning still could have been about something that might produce legislation. But the fact that the bill is mentioned, if the questioning is wholly unrelated in any way to the possibilities of that bill, the bill itself is not determinative or relevant. Indeed, I think the best way I could put it is that the dependency of legislation is not a hunting license to engage in exposure where the questions have no relation to that legislation and there it seems to me again the -- the case rest.
Felix Frankfurter: Now, suppose I put the most favorable aspect on this as I think one must. Suppose when he refused to answer the inquiry about the first -- when the first name was put then, the Chairman has then said to Mr. Watkins. “Let me read you what I said in March in Chicago as to why this Committee is here. And in connection with that, I now repeat my question, please tell us about Mr. Smith. What difference would that make in your case?
Joseph L. Rauh, Jr.: Well, I think it would have made very little in that. I think Mr. Watkins could rightly have said, “I don't understand the relationship between the two.” If one has been given him, I think maybe he would have had to answer, but it's significant that when you have this man who had been in the very peak of a fight over this kind of a statute, they weren't interested in anything about it. And therefore, I say it's perfectly clear that they weren't interested in the bill. It seems to me, if Your Honors please, if we -- that exposure -- it probably is a -- in many cases, it's going to be a hard thing to prove. There's always the possibility of retroactive rationalization and that's exactly what we've had here. But now, the Committee didn't tell us they had any such purpose. This wasn't the purpose in the lower court. Indeed, I'd like to call Your Honor's attention that this new suggestion of the Government that they were trying to get a retroactive census of the names of every Communist in the mid-1940s in the labor movement was as late as their brief and opposition only a hypothetical possibility. On page 5 of our reply brief, I quote from the Government's brief in opposition where the Government says, “If the Committee had the additional and more general way of ascertaining the number of communists at a particular period on a recent history, that too would be a valid subject of inquiry.” In other words, what the Government now says is the subject of inquiry. They had this latest brief in our position simply suggest it was a hypothetical possibility as to the subject of inquiry. Well, if Your Honors please, it seems to be that -- that we have shown a purpose of exposure and that in light with Your Honor, Mr. Justice Frankfurter has suggested himself the -- on the constitutional aspect of this, that would end the case. I personally was prepared to rest the case on those two points. However, I remember the discomfiture of counsel in Peters v. Hobby for not arguing the narrower grounds of a -- I wish the Court might rest a decision and seeking to be put in the position of seeking to force a constitutional issue and I have no desire to get in that position. And therefore, we have -- we do contend, if Your Honors please, that the -- these questions are not within the authorizing resolution, that of course being a narrower ground of decision than a serious constitutional issue of separation of powers that we have raised. Now, there are two possible grounds of interpretation of the congressional -- authorizing resolution, which would take the questioning of petitioner outside of that resolution. First, that there was no intent by Congress to give the Committee a power of exposure, and if Your Honors will examine the resolution, it's in the record. It's in the briefs of many places. It's in our brief at page 4 of our -- of the initial white petitioner's brief. You will notice that the purpose that deals with the extent character and objects of Un-American Activities and subversive propaganda. And three, all other questions in relation thereto that would aid Congress in any necessary remedial legislation. It does seem to us three that those words in any necessary remedial legislation are -- cover both one and two as well as three and therefore, there was no power of exposure given. And therefore, if our proof is correct on the exposure point, Your Honors would -- could by interpretation of the resolution accomplish the same result as I have argued under the Constitution. Secondly, however, and I think it's even clearer if Your Honors please, this -- to summarize this resolution in a sentence, it's a power to investigate Un-American and subversive propaganda activities. Now, where in subversive and Un-American Propaganda Activity, you find an authority to ask a man to name certain persons as Communists in 1945? In other words, it seems to us that on that narrowest ground, we are outside of the resolution. Now, I would be less than candid if I did not say that that over simplifies the problem, because for the last 20 years, the House Committee has been doing what we are here complaining of to the public knowledge of everyone and to the knowledge of the members of the house who have reenacted the resolution, who have given them appropriations and who -- one could argue have ratified what they have been doing. And it was because of the ratification point that I preferred to rely on the constitutional argument. But again, referring to our duty to find the narrowest ground, I would say to Your Honors that there is a serious question whether Congress could ratify so broad a change in the meaning of the resolution as it's necessary to cover the situation here. In other words, there are decisions of this Court that what you can ratify is only a reasonable interpretation of a resolution and that this interpretation to broaden the words, propaganda and propaganda activities to cover identification of all Communists in mid-1940s, let us say is beyond a reasonable broadening of those words and I --
Felix Frankfurter: When you said this Court, have we had any case? Have we decided any case in which we carried over a doctrine of ratification by subsequent legislation in the sense that whatever any Committee did under any prior resolution was read into incorporated by reference as though it specifically approved of every action taken by a prior Committee, anything like that?
Joseph L. Rauh, Jr.: No sir. I was --
Felix Frankfurter: So, I'm recalled to --
Joseph L. Rauh, Jr.: No. I was referring, sir, to the tax cases where words --
Felix Frankfurter: Well, that's --
Joseph L. Rauh, Jr.: Well, I was --
Felix Frankfurter: The specific rulings on a specific situation with a specific adjudication. Even that caused a good deal of imagination to assume that Congress knows all about it or that reenacts it. But in all events, that's a very different situation.
Joseph L. Rauh, Jr.: I -- I agree. I was simply using those cases to show they don't go this far, Your Honor, since they know that the only thing you can ratify is the reasonably -- is a reasonable interpretation, whereas I'm suggesting that this goes beyond that. And therefore, if Your Honor should agree that the ratification has not occurred here, then I would suggest that that is narrowest ground of decision on which this case can turn. Now, to turn briefly for just a moment to the protections of the First Amendment. If as we contend most strongly and certainly, there was -- the Committee was engaged in the activity of exposure, there was also a violation of the First Amendment, because if its purpose was exposure, then there is no possible legislative need to justify the obvious repressive effect of the activities of the Committee. But I am assuming here in arguing the First Amendment point that the Committee had a legislative purpose, but I have been found to be wrong in arguing that it did not have and that it had a legislative purpose. And we nevertheless contend strongly that this was a violation of the First Amendment. Legislative purpose is not legislative need. You still must balance the repressive effects of the activities of the Committee on speech and association against the need for the legislation. I -- I take it as what the Rumely case has told us. Now, this Court has told us there must be a way, but it has not told us the standards for weighing and that will have to be worked out as we go along. I take it that the clear and present danger test hardly fits exactly this kind of a weighing situation, but it does remind us of the importance of protecting the right of speech and association from congressional activities.
Felix Frankfurter: Mr. Rauh, you strongly urged the relevance of the announced purpose of the Committee as shedding light on or rate -- illuminating what they actually did. You argued that if a man says, “this is my purpose,” and then something happens would you bail out that purpose that that colors then qualifies. But you haven't -- perhaps you want to rest it on the briefs and so, I'd like to know what -- what is the basis for your saying that they announced that they're engaged in a process of exposing?
Joseph L. Rauh, Jr.: Well, I thought I can rest --
Felix Frankfurter: What's your answer to that --
Joseph L. Rauh, Jr.: I can rest it on brief, sir on page --
Felix Frankfurter: -- did this Committee, to this -- the Chairman of this Committee make any such statement?
Joseph L. Rauh, Jr.: Yes, sir. We summarized this from pages 41 to 58 of our brief.
Felix Frankfurter: -- you state what you regard as the most unequivocal assertion --
Joseph L. Rauh, Jr.: Well, I -- I --
Felix Frankfurter: -- by this Chairman.
Joseph L. Rauh, Jr.: Mr. Velde, the Chairman of the Committee, I'm now quoting -- I'm now looking for Judge Edgerton's dissent that that Mr. Velde, the Chairman of the Committee in the 83rd Congress who presided the Watkins hearing cited in another hearing, “We feel that we have a duty and that duty has been imposed upon by Congress not only to report to the people for the purpose of remedial legislation, but to inform the people who elected us about subversive activities.” Now, there is --
Felix Frankfurter: There's a speech that he made?
Joseph L. Rauh, Jr.: No, sir. Well, now, I'm hearing before the Committee on Un-American activities.
Felix Frankfurter: I mean -- and -- and his role as Chairman. He wasn't addressing --
Joseph L. Rauh, Jr.: No, sir.
Felix Frankfurter: -- his -- his enthusiast in Chicago.
Joseph L. Rauh, Jr.: No, sir. The Government suggests that these are a lot of speeches. These are all reports and here are on -- we did include some speeches, but the bulk of it are reports and hearings and statements on the Board of Congress in the capacity of the Commerce, but I do suggest that I -- we have --
Felix Frankfurter: All right.
Joseph L. Rauh, Jr.: -- made an overwhelming showing of this on pages 41 to 58 of our brief. And back to the question of the First Amendment, if Your Honors please, what we have to weigh here is the repressive effect of the Committee against the need for the legislation. Now, if Your Honors please, the repressive effect is clear. To call a man before a Committee and humiliate him into being an informer and to take out all of his past, it's a -- it's a public humiliation for past exercise of speech and association. It's also a prior restraint on himself and on others for the future. And what need is asserted to say that this repressive effect should be allowed by this Court that they wanted to make a retroactive census of Communist at a different period in our history when that very activity was not considered wrongful and get that retroactive census in order. That's the need to be weighed against this repressive effect. I suggest to Your Honors that there is no way that that can be balanced anyway, except in the direction of freedom. And finally, we argue that this resolution is too vague and indefinite to stand under the cases that hold that a defendant has a right to a reasonably and ascertainable standard of guilt before he maybe prosecuted. What this investigation says -- what this - or resolution says is that the Committee has the authority to investigate Un-American and subversive propaganda activities. Was petitioner to know that when he was asked about people in 1945, whether they were members of the Party that that was propaganda, that that was subversive, that that was Un-American, I would challenge anybody to suggest that different people sitting in that chair would not reach different conclusion. And what does the government say? They say that all resolutions of Congress are too vague to meet the standard. They rely on the fact that if you hold them up to the standard of a -- of a criminal statute, then they will not be able, Congress will not be able to do its job. I suggest they forget that in the House -- House of Representatives today, there are only three committees that exercise this power. Whatever vagueness you may want to have in Congress for internal functioning of the body is one thing, but when they seek to use the subpoena power and to prosecute people for violation, certainly, they must live up to the standards of the (Inaudible) Grocery case. It is one thing if they call a witness before the bar of the House when he gets a last clear chance to answer. But when they use their criminal prosecutions, the criminal process to prosecute a man, then he must have a reasonably ascertainable standard of guilt. Finally, there is involved in the case, the same grand jury point that (Inaudible) when we have briefed it fully. I would prefer because I do not believe the Court would likely get to this point to reserve my time for rebuttal.
Earl Warren: Okay. Mr. Solicitor General.
J. Lee Rankin: May it please the Court. I should like to call your attention first to one -- one statement in the briefs that I should like to clarify in regard to the decision of the Court of Appeals.
Hugo L. Black: In your brief or the other brief?
J. Lee Rankin: It's in the other brief and it's in regard to whether the Court of Appeals found that there was a legislative purpose in the questions that were asked and counsel in the brief recite that the Court merely said that there could have been such a legislative purpose. On page 178 of the record, the Court said, “The questions asked Watkins could be asked for a valid legislative purpose." Then, if you will go on to the bottom of the page, the same page, you'll find that the Court said, “A majority of the Court gives out the opinion that the questions were pertinent to a valid legislative purpose and were authorized by the Act.” Now, from what the Court has heard, it must be difficult to understand how anyone could say that there could be a valid legislative purpose in the questions that were asked. And so, if you will bear with me briefly, I'd like to go back to the evidence and see what there was before this Committee upon which they could ask such questions that would show a valid legislative purpose to six out of eight common judges of the Court of Appeals. This appearance was a continuance of a prior hearing that started in Chicago. And the petitioner was asked whether he knew of the testimony of two of the other witness, prior witnesses, Mr. Rumsey and Mr. Spencer and he said he was familiar with it. And what did they testified to? Mr. Rumsey said he was recruited into the Communist Party by the petitioner that at the beginning he paid dues to him being the petitioner. Later, he collected dues from the petitioner who assumed the alias of Sam Brown. Then, the Committee asked many questions of Mr. Rumsey. And amongst them, he asked about the infiltration of the Communist Party into this union. Two of the questions are particular of interest with regard to a valid legislative purpose. On page 138, close to the bottom of the page, statement of Mr. Rumsey in answering the question. I'll read the question first. “Mr. Rumsey what was it? What you -- would you describe to the Committee the main purpose and activities of that branch of the Party? What were they trying to do for the Communist Party?” Mr. Rumsey, “Well what they were striving to do was to disrupt mainly to set their program of propaganda to get the shop workers acclimated to the daily worker and that was the function of the organizer.” Then, there's other testimony about how things were being done and on page 139 and about the same general point on the page, Mr. (Inaudible), “Could you tell us specifically what your duties were as organizer for the Communist Party?” That was to Mr. Rumsey. Mr. Rumsey answered, “Well, to recruit and to recruit new members, hold study groups, clubs as they called it, study clubs in the evenings and then as I say, keep our people in the shop what communist we had to lead the union meetings and dominate them.” Then, Spencer said he recruited -- was recruited in the Communist Party by Rumsey with the endorsement of this petitioner as well as if prior approval. Petitioner was then the Vice President of the Farm Equipment CIO and he said he attended Communist Party meeting at which the petitioner and two others, Kate Hall and Jerry Field were present. Then, the petitioner described his official position with the union. He was one of the important officers during this period at which time the evidence is clear from these other witnesses that this union was infiltrated by the Communist Party. Petitioner admitted knowing Rumsey and Spencer and was familiar with their testimony concerning him. He admitted that he cooperated with the Communist Party and having “participated in Communist activities during 1942 to 1947,” to such a degree that some persons may honest believe -- honestly believe we too have been a Party member. He admitted making contributions to the communist causes, signed petitions for their various causes, attended coxes at a convention of the union at which Communist Party officials were present. He participated in the union meetings with the Communist (Inaudible), attended public meetings of the Communist Party at which William Z. Foster then president spoke. He also testified that he was aware that -- that there was a general program policy of the Communist Party to attempt to control the various unions and testified it was quote “Probably correct to say that the discussions he had with them, individuals known by him to be communist had been in connection with their desire to control the union's policy and activities.” Already denied that he had been a card carrying member of the Communist Party. He contradicted both Spencer and Rumsey and said he had nothing to do with recruiting men. He said that Spencer was wrong when he termed any meetings which the petitioner attended as closed Communist Party meetings. He contradicted Rumsey and denied having recruited Rumsey or receiving dues from him or paying dues to him under the alias of Sam Brown.
Hugo L. Black: Is that relevant to our question?
J. Lee Rankin: Yes, because of this. It shows that there was an inquiry to this man about the question of infiltrating unions for communist purposes. The -- the Congress within four months after this in the Communist Control Act of 1954 passed an amendment to the Internal Security Act of 1950 in which it provided with regard to unions which had been infiltrated and took away from their opportunity to have the benefits of the NLRA. So that Congress was inquiring at this very moment about that from this very petitioner, obtained information from him that he knew that that was what was happening in that very union, that the Communist Party was actively engaged in this very activity. They then proceed to legislate about it and they were inquiring about it at the time to determine about the legislation. Now, when they asked him about these things, the evidence also shows that everyone of these people that they asked him about, they had asked Rumsey and Spencer about prior to that and Rumsey and Spencer has said that they were members of the Communist Party. And they had also asked as I have shown, Rumsey and Spencer about propaganda activities, the efforts of the Communist Party to infiltrate this very union and what they knew about it. Now, this witness comes there and he said -- he denies the testimony of Rumsey and Spencer with regard to himself and Rumsey and Spencer in this very proceeding at Chicago had been asked about some 25 to 30 different persons whether they were communist. And Rumsey and Spencer said that everyone was. Here, this man says, “I wasn't a Communist. I did a lot of things like people might think I was a communist, but I wasn't.” He apparently had knowledge in regard to this union. He was an officer of it. He cooperated with the communist and then very active. Now, if you could find any place that was more ideal to try to discover facts upon which Congress could act knowledge -- knowledgeably, I'd like to know what it could be. Here, in this very union, in this very thing that Congress was looking for had happened. They had infiltrated, this man was part of it and these witnesses that testified to his participation and to the other activities and how they did it, by propaganda and the common methods of the Communist Party. Then, they come to him and they asked him. He says, “I'm not a Communist,” and he says, “These men might have thought so, but I'm not,” and he questioned their testimony about receiving dues or whether a man was a Communist or not. It might be a question that is difficult and his explanation of the fact, “That I acted like a Communist. I cooperated with them. I did things from which people might infer or conclude I was a Communist,” might be answer to that. But when you get down to the question of whether or not he paid dues and received dues, that's a question of fact that would be hard to be wrong about.
Felix Frankfurter: Mr. Solicitor, may I ask merely to search the record. Are you implying or is it to be implied that in his resistances, he was exculpatory of himself? Was there any suggestion that he was evasive or trying to get from under in answering any questions that might put him in an -- if you please, undesirable or questionable life? Did he show any invasion about his -- in the -- I read the record that's why I'm asking you (Voice Overlap)?
J. Lee Rankin: Well, the only thing that could be --
Felix Frankfurter: Whereas all the shield in order to prevent further exploration of his incite?
J. Lee Rankin: The only way that could be construed that way, I think, would be the fact that he denied this expressed testimony of these other witnesses in regard to this inquiry. And it seems to me that if reasonable that anyone who was making such an examination either in Court or in a congressional committee where the committee members may or not have the same experience that lawyers have in dealing with witnesses that when the witness starts to deny the testimony, not only of whether he was a Communist, but whether he had paid and received money as dues in the Communist Party that they had a right to go into that further.
Earl Warren: We'll hear the rest of it after --