J. Lee Rankin: As we -- from Justice Frankfurter, I'd like to make it very clear the Government's position about that. The question was whether or not this was possibly a device or means to avoid further inquiry to the petitioner, and I want to make it clear that the Government does not claim anything of that kind. It could accomplish that purpose just as well if it was so intended but we do not so charge him and there is nothing in the record to give such an implication.
Felix Frankfurter: But my question had an implication, went a little beyond that, whether the kind of relevancies that you sketched or outlined before lunch. Whether the inquiries which you indicated would be relevant to what had preceded. Whether he wasn't fore coming in dealing with questions addressed to him, so far as his conduct and his relation and his knowledge was concerned sort of inquiry with these other people?
J. Lee Rankin: Yes.
Felix Frankfurter: And I take it your answer that he didn't show any withholding (Voice Overlap) with himself.
J. Lee Rankin: His only withholding was apparently with regard to the people that he said had left the party that he knew and knew something about whether or not they were or were not in before.
Felix Frankfurter: And -- and there was -- and you agree that the record doesn't disclose any -- what shall I say, any indication or explicit endeavor on the part of the Chairman and he was the fellow who was asking question, was he?
J. Lee Rankin: Yes, sir.
Felix Frankfurter: That -- that elucidating why the question, which you refuse to answer, might bail on issues that had been dealt with and as to which he did give testimony?
J. Lee Rankin: I must correct that the questions were asked by the Chairman and various members of the Committee --
Felix Frankfurter: All right. All of them.
J. Lee Rankin: And then --
Felix Frankfurter: But there was no point at to which -- perhaps I can put it more simply. There was no indication when he said, “No, I don't want to talk about that.” But the Chairman then said, well, may I tell you, politely said incur this evening, maybe employed even before congressional committee to say, may I tell you why I'm asking this for the point of this question or let me enlighten you. There was nothing of that sort, was there?
J. Lee Rankin: No, except the --
Felix Frankfurter: I mean the question was put and denial made and that's that.
J. Lee Rankin: Yes. There was the one statement by the Chairman, when he direct in -- directed in to answer. In which he said he thought he had information that would be helpful to the Committee and that he should give it. And he then said, he direct him to answer but it doesn't go as broad I think as your question. And it seems to me the only area that the Committee could have said that he was not frank was if he was falsifying about whether he did continue dues to these -- to the Communist Party and through to these very persons, and whether he collected dues from these very persons. And whether he was in fact a Communist when they said he was.
Felix Frankfurter: And the question that I put to Mr. Rauh, what can you open the door to the extent of saying, I will disclose those whom I know to be members of the Communist Party. The Chairman didn't say, “Well, we do not have to give you of course our information, but there's reason why we ask that in the light of what you already tested.” There's nothing like that?
J. Lee Rankin: No.
Felix Frankfurter: All right.
J. Lee Rankin: There is the record that he knew everything that happened as far as this other inquiry to Spencer and Rumsey. And seems to me much of that shows what the Committee was trying to get at and I'd like to give you a little of that this time.On page 76 of the record, there's a small portion that I'd like to call your attention to over a testimony of Mr. Watkins. Mr. Molder, member of the Committee, then examining was to what extent or in what manner did you cooperate, did you attend meetings of the leadership of the Communist Party, or was your cooperation with some of the movements that they were undertaking in cooperation with the labor at that time? Well, the cooperation as I referred to in my statement was had by contributions. I've been present at meetings, coxes I referred to, and that is what I mean by cooperation. Did you participate in any political meetings where only communist were involved? I have attended in my work in the labor union thousands of meetings, sometimes as many as four days, answered about any specific meeting, it would necessarily have to be pinpointed to some recollection. Well, did you consider yourself as actually affiliating yourself within this cause or the philosophy of the Communist Party movement during that period or time or were you using the Communist Party in your work as a labor leader? That is the point I was trying to make clear a moment ago. I was trying to distinguish. We do distinguish between those activities. Well, I would say that on occasions there was no difference in opinion on a position, which I might have felt the Communist were also in support of that position, and I did not oppose it. But where I felt that their position different with mine, I did oppose. And he goes on and describes in some detail, the collaboration that he had during that period with the members of the Communist Party. Then on page 156 of the record is a detailed testimony of Mr. Spencer, in which each one of these people that the petitioner was later asked about, whether they were members of the Communist Party. Were gone into in detail and the questioning demonstrates, it seems to the Government, very clearly what the Committee was trying to find out. They were asking about the membership of this particular Communist Party sale or group in the quad cities.And then they took each one of them and tried to find out what those people did. Various ones were in the AF of L Union and so we're not in the particular union that the petitioner was in, some of them worked in the city and were not in a union activity, and others were closely identified with the union activity of this particular union that had become infiltrated. In fact, there is one question at the middle of page, what positions in the union were held by members of your branch of the Communist Party? Well, I was vice-chairman of the local and Chairman of the grievance Committee, and Walter Rumsey was Chairman of the local, and Gus Gustafson was secretary of treasurer of the local, and Hazel Jones was the steward in the local, was steward in the tractor drivers. And I believe those are the only executive positions within the local, there were held by many to the Communist Party. Did that virtually assure Communist control of the activities in the union, a good sharer?I would say -- I wouldn't say absolute control, but quite a bit of them. And then they go on with each one these people trying to identify what function they had with relation to union activities in that area, whether they were -- and did find out that they were Communist Party members from Spencer and Rumsey.
Hugo L. Black: You mean all? They had already found out that they were, when they asked (Inaudible)
J. Lee Rankin: Yes, and he proceeded.
Hugo L. Black: What was the purpose in asking him if they already knew?
J. Lee Rankin: Was to try to verify the testimony that they had gotten.
Hugo L. Black: Did they think it was unreliable?
J. Lee Rankin: Well, he had already indicated that was unreliable as to him by saying --
Hugo L. Black: But they brought him in. They didn't bring him in to challenge that testimony.
J. Lee Rankin: No, I don't suppose they anticipated that that would occur. And they were trying to -- maybe it was cumulative, maybe it was more evidence, but it seems to me that that ought to be left to the Committee within any reasonable bounds at all when they were still actively trying to find out the facts about this problem with infiltration --
William J. Brennan, Jr.: Well, Mr. Solicitor, are you suggesting that his denials of their testimony as that testimony related to him --
J. Lee Rankin: Yes, sir.
William J. Brennan, Jr.: -- may have reflected upon the credibility of their testimony as to these others?
J. Lee Rankin: Entirely, yes.
William J. Brennan, Jr.: At least to a degree which justify their pressing the same questions upon him?
J. Lee Rankin: Yes, Mr. Justice. It seems to me that in the area of this problem we're dealing with, that the -- the Court should approach it in a hospitable manner to try to give the Congress an opportunity to function within a reasonable limit. And that if this was a court of law and this problem came up, it was reasonable for the Committee to wonder where the truth lies, they had some evidences. In fact, they had evidences in their files, there wasn't any question about that. I don't think that this Court should ever limit the Committee to what's in their file because it might not prove to be the truth at all. And so, upon having such an investigation, part of their -- important part of the very things that you would rely and if you're going to try to act upon such legislation, was the testimony of men like Rumsey and Spencer right here. That this very union had been infiltrated by the Communist Party and that they have gotten all these important officers, if they didn't dominate it, they certainly had an important voice in the control of it. And now this man comes, who maybe is cumulative but still they had a right, it seems to me within the reason to limit to ask him. And they asked him and he says I wasn't a member of the Party --
William J. Brennan, Jr.: Now, did you suggest before lunch that the legislation bearing expressly upon infiltration in the labor unions followed by only a few months within --
J. Lee Rankin: Within -- within four months.
William J. Brennan, Jr.: Well, now, was there was a report of this Committee --
J. Lee Rankin: Yes, there was.
William J. Brennan, Jr.: -- which led to that legislation?
J. Lee Rankin: Yes.
William J. Brennan, Jr.: Is that on the record?
J. Lee Rankin: It's referred to in the briefs and counsel for petitioner say, that it doesn't discuss the detail of the testimony. But it does refer expressly, Government states in his brief to the testimony of Rumsey. And that they have had very extended hearings in regard to the whole matter.
William J. Brennan, Jr.: And that was a report in support of the proposed --
J. Lee Rankin: In support of the --
William J. Brennan, Jr.: -- legislation?
J. Lee Rankin: -- proposed legislation. Yes.
Hugo L. Black: In the Court of Appeals thought that is one of its grounds.
J. Lee Rankin: That's right. And so, we are saying that in this particular proceeding, that it was a reasonable legislative purpose and legitimate in this, in trying to discover the facts about whether or not to legislate in this matter, to try to find out where the truth lay between these people. Now, we do not claim on behalf of the Government that there's any right to expose for purposes of exposure and I don't know that Congress has ever claimed any such right. But we do say that they're in the same ground, that there is a right to inform the public at the same time they inform the Congress. And I think that's inherent in our system because if matter comes up, then maybe a considerable public opinion in the country that certain legislation should be enacted. And the Congress might make an independent investigation with such skill on investigators that it has and find out, as a matter a fact from that investigation, that legislation is not required, that the situation is not as the public believes it. Now, it seems to me it's very proper for them to have a hearing and develop the facts. Not only to show to Congress, that there is no need for legislation in that area, but also to show the public, because under a democratic system, the legislation responds to public opinion and demand. And so as long as that's related in that manner, it seems to me that's legitimate and that this Court should not prevent the Congress from carrying on that kind of an activity. It is merely to expose for exposure's sake, we do not claim any such thing and we don't believe that the Congress does. I think there's another important problem --
Hugo L. Black: You mean by that, that you do not think that the resolution, under which the Committee was acting, would authorize attempting to expose for exposure's sake?
J. Lee Rankin: No, I did -- I think two things. That's true that it did not, and secondly, I do not think that this -- the facts of this hearing shows there was any purpose to do anything of that kind. I think that this Committee was diligently trying to find out facts upon which they could legislate and did legislate within a very short period of time. It's next suggested that in trying to determine whether this action or hearing was a -- and the questions under it, were a proper -- had a proper legislative purpose, that the Court must not confine itself to the resolution of the Congress, which counsels developed. And the hearing itself but must turn to extraneous evidence of all unsoundly kinds. I think that is a situation that's impossible for the courts to be asked to deal with. It's unreasonable and I'd like to develop just briefly the problems that would result from it. It's the Governments position -- I'd like to make it clear that the Court should confine itself to the resolution of the Congress and the hearing proceedings of whatever happened in the hearing. Now, if you go beyond that, you have the question of whether or not you're going to try the members of the Congress. Are you going to inquire of each Committee member as to what his position is with regard to a particular matter? What his motives were in making certain inquires to a certain witness? Are you going to rely on that or do you have to go from the Subcommittee to the whole Committee? Or do you have to go beyond that, from the House and include the Senate, because each of them engaged in this activity. It seems to me it's an impossible situation to do that. If the Chairman makes a speech or statement in which he purports to state what the purpose of intention is. I don't see how the Congress itself should be bound by anything of that character, unless it is brought to the attention of the Congress in such a way and the Congress takes a vote or some action that this Court would feel it would have to respect this congressional action.
Felix Frankfurter: That -- that may bear -- that may be relevant. I can see how it is relevant as to validity of the resolution itself. But the other take care of the specific question of propriety the enforced questioning of specific question.
J. Lee Rankin: Well, the problem it seems to me is that if you are going to inquire as to this particular Committee, then they put in the record here which the court below not receive all kinds of statements by Mr. Velde, speeches, quotations from the various newspapers and statements by others in -- who would acted in connection with such a Committee.
Felix Frankfurter: I understood that some of the statements were made in the course of --
J. Lee Rankin: Hearing.
Felix Frankfurter: -- the activity of the Committee itself, hearing.
J. Lee Rankin: That's right.
Felix Frankfurter: As to that, I don't suppose you have to make all for approve. I should think that is really judicial notice, isn't it?
J. Lee Rankin: Well, of course, if it was a part of this proceeding, even as started in and for the whole period of time, which we consider a continuous proceeding. It would certainly be proper for the Court to examine that and find out what was doing (Voice Overlap) --
Felix Frankfurter: Not as evidence but --
J. Lee Rankin: As it's bearing upon (Voice Overlap). That's right. But these are statements that go back of that to other times when the Committee was acting and its membership changed over the years. Its chairmanship changed, and how a Committee at this particular time can be bound by all of the different things that someone might say outside of the hearings or even in the hearings that were not a part of this particular Committee's activity for the period. That it was constituted as not under the Congress. It seems to present problems that are almost impossible of solution if the courts get into that. And we feel that the only way that you can fairly treat the Congress in the consideration of this problem is to deal with the places where it took action. And all of the proceedings, of the hearings certainly ought to be examined to see whether it was a valid approach to try and carry out the congressional function and the resolution that empowered them to act. And the other things you've read to see some member of the Committee might speak up and express some idea that none of the other members would be willing to accept but wouldn't want to because of the situation to take -- to cause any offense by taking acceptance -- exception to it at that moment.
William J. Brennan, Jr.: Are you going to mention the relationship of these questions to the investigation of propaganda?
J. Lee Rankin: Yes. The --
Hugo L. Black: As I recall it, Mr. Solicitor General, I just look it to see. The Court relies pretty extensively on statements outside the Committee hearings in the case of United States against Lovett to find out what was the purpose of the Congress and the Committee in passing the bill. Yoy -- you say they could not do it here?
J. Lee Rankin: Well, I think that we would be getting into an area that would be almost impossible to resolve anything from. And that the Court should, like the lower court did, confine itself to the resolution and the proceedings.
Hugo L. Black: And not refer the reports or speeches made by Congressman Velde in the House on the subject.
J. Lee Rankin: Yes, I -- I think that those reports are referred to here and there's no question about those. But as to speeches on the outside, I don't think those are binding upon the Congress.
Hugo L. Black: What about from the inside?
J. Lee Rankin: I beg your pardon?
Hugo L. Black: What about inside? I -- I understood him to say some of them made inside the Congress.
J. Lee Rankin: Well, if they were in connection with legislation, I think it would have bearing on the legislation but not in connection as to these particular hearings and whether or not there was a valid legislative purpose as to the questions at hand. Now, I dealt with -- and call Court's particular attention to the several references in the inquiry to Mr. Rumsey on pages 138 and 139, directly to the question of propaganda, that were being asked him in connection with his examination. And as the position of the Government, that this was a part of the hearings that was continuous, that they brought to the attention of this petitioner the fact that he was fairly familiar with the examination of Mr. Rumsey. And it was contemplated that the same area would be examined in connection with Mr. Watkins. And that the examination never proceeded to that point, because they got to a place where the witness was unwilling to answer questions which they thought had an important bearing upon his credibility and didn't see any purpose in trying to go further to cover any greater area with him.
William O. Douglas: Did they ask him any question about his activities, the relation to propaganda?
J. Lee Rankin: Only what I read to you --
William O. Douglas: Not Rumsey, I mean Watkins.
J. Lee Rankin: Yes. On page 76, they asked him in regard to his various activities and he told about his participation in various types of activities that involved petitions that he signed, the things of that kind were certainly part of the propaganda of the Communist Party, as generally understood. And they also inquired about his activities in regard to the purposes and plans of the Party that he supported and accepted. And the parts that he rejected when it didn't go along with his ideas of what was the thing to do with the union. So that they were covering the general area all the time, not only with him but the other witnesses of the propaganda and all of the activities that are connected with the Communist Party. The position of the Government that the Communist Party is involved in a propaganda movement, that's inherent, and it is also involved in action in trying to get that ideology accepted and applied in so many places that it can. That is inherent and as then so recognized that this -- over the years that such inquiries basic as to any inquiry about the activities of the Communist Party. And here, they were trying to see what those activities were. What the petitions in the various solicitation and efforts to recruit members had accomplished, whether they had actually gotten control of this union or how much control they had gotten, and what the effect of it was. I think it was a reasonable inquiry to follow that up and find out why these people had left the Communist Party, if they had. As the witness seemed to indicate, they had derived at a -- sometime, when they had decided to leave that Party, it was not indicated when and if so, why? Because that would have a bearing upon, whether to -- there was a need for the legislation and -- or whether the need has disappeared. And the whole question of it was before the Congress and before the Committee at the time. The Government contends that there was no limitation upon the activity of the Committee and should not be any limitation, because it had some information in its files. It seems to us that this case is a very clear demonstration of the reason why there should be no such limitation. It's argued that since the Committee already had some of this information, much of it in its files, that therefore there is no basis for having a valid legislative purpose in making further inquiry. First place, this -- this examination showed that there was a difference between what it had in its files and there's some argument by petitioner that the counsel for the Committee was not thoroughly aware of what was in the files. It was shown that there was a considerable mass of evidence that the Committee did have in these files. But the counsel did testify that he was briefed carefully in regard to this particular matter and whatever the Committee had by the investigators who were supposed to be familiar with the material and the files, and he then proceeded to make the various inquiry. The Government takes the position that the question of Communist Party membership is a proper inquiry for any legislative committee dealing in subject matter that is involved in that of the -- under the resolution of the Un-American Activities Committee. And this Court has passed upon whether or not that's a proper type of legislation, sufficient numbers of times in Douds and other cases, so that there could be no question but what that inquiries is proper. It seems to us in this case, there is even a greater reason for such an inquiry in view of the conflict between the witnesses concerning Mr. Watkins' membership in the Party. And whether these other people were (Inaudible) activities and so forth.
Felix Frankfurter: Mr. Solicitor, if this kind of a question had been asked in adversary preceding in Court and the witness is asked if you know so and so. And he said, I don't want to answer that. And nothing more appears in here as to relevancy, the argument you have made. Would you -- and the theory of asking, do you know John Smith? But if he said yes and if he says no, it's blocked unless you go and disprove the -- his denial. But if he said -- the theory of asking that question is because it leads to some other questions.
J. Lee Rankin: Yes.
Felix Frankfurter: Of course counsel say what I -- the witness says this is -- this will have a tendency to make my client to do something that is disagreeable or to be an informer etcetera. Wouldn't -- wouldn't the presiding judge say, what's the point of this question? What are you trying -- what subject matter do you seek to elicit from this witness? Wouldn't counsel be asked to give some indication why that question should be answered as a preliminary to some other question? And the relation in the chain of relevant sequence of such an opening question? Where the counsel say, well, I stand on that question, I want that. And the Court rules there have denied them.
J. Lee Rankin: I think --
Felix Frankfurter: Am I -- am I wrong in thinking that nobody would dream of reversing that denial, say that the judge couldn't have said no? Let the witness stand on that refusal?
J. Lee Rankin: I think it would depend on what the record was up to that point. And if it looked at those inquiries have been made, we assume that the witness knew what that record was and that inquiries have been made like this had been in regard to activity in this union and --
Felix Frankfurter: Well, the most he could get out of them is that he would say, yes, I knew him. Was he a communist? Yes, he was at the time. Could he get any more out of them than that?
J. Lee Rankin: Well, I think if you -- he could also get out, whether he left the Party if he puts the witness that indicated that that was the reason.
Felix Frankfurter: Then he'll ask Watkins.
J. Lee Rankin: No, I mean, the various persons that were inquired about. The witness had refused to testify about because --
Felix Frankfurter: You mean some other -- and not the witness in question, not Watkins?
J. Lee Rankin: Watkins said that the reason he would not testify about them was because they had -- they were known to him --
Felix Frankfurter: Because he (Voice Overlap) --
J. Lee Rankin: -- not to be (Voice Overlap) --
Felix Frankfurter: -- to be -- not known to be a Communist. Very well.
J. Lee Rankin: Yes. And so you could also ask, not only whether there was membership, but whether or not they had left the Party at sometime --
Felix Frankfurter: That would be a dubious source of information as to where another person did, I should think.
J. Lee Rankin: Well --
Felix Frankfurter: I'm not -- everything you connected with everything else in this world.
J. Lee Rankin: Yes.
Felix Frankfurter: Well, eventually.
J. Lee Rankin: Well, they --
Felix Frankfurter: Isn't it rather 10 years to be connected, to ask Watkins to find out why a lot of other people left or whether they have left?
J. Lee Rankin: Well, the testimony was that he was a part of this very same Communist group in this area but they were all members of it.
Felix Frankfurter: No, he -- was there any testimony that he was the secretary of -- that he was (Voice Overlap) --
J. Lee Rankin: That they attended the meetings.
Felix Frankfurter: Pardon me?
J. Lee Rankin: There was testimony that he attended the meetings.
Felix Frankfurter: Yes, but --
J. Lee Rankin: Over the years.
Felix Frankfurter: Out of that, you get him as a good source of information or a reliable source of information of a lot of other people did, that seem to me a little remote to the subject matter.
J. Lee Rankin: Well, they had obtained such information from Rumsey and Spencer, and they were -- he had questioned the fact that he was a member and they were then trying to find out whether he verified or denied. And they didn't indicate that they were trying to find one answer or the other from him. And I -- it appeared the Committee was in good faith trying to find out what the fact was.
Felix Frankfurter: I'm assuming that and I'm assuming you would have given a favorable answer, favorable to their point of view and I don't see how -- I fail to see that how much or to what extent, to what serious extent, that would advance their purposes.
J. Lee Rankin: Well, it would held a serious effect on whether or not there was a verification of what Rumsey and Spencer had already testified to, as to the question of infiltration.
Felix Frankfurter: Well, I didn't suppose that was under denial. I mean one could almost take that --
J. Lee Rankin: Presume that --
Felix Frankfurter: -- unduly, I could almost take judicial notice of the fact there's a good deal of infiltration in various unions. And that wasn't in controversy as between Watkins and the Committee, was it?
J. Lee Rankin: Well, as what they were going into, but the fact that Watkins denied his own participation certainly raised the question of whether these people are wrong about all the others and made the inquiry reasonable to reach out and see if they could --
Felix Frankfurter: That if his testimony might have exculpated all those, about whom they were pretty confident they were Communist.
J. Lee Rankin: That's right or at least show that there were in error in relying on any such evidence as that in connection with their recommendation to the Congress.
Tom C. Clark: What was his job? (Inaudible)
J. Lee Rankin: Well, he was a vice-president of the union and of the Farm Equipment Union. And it was that union that anticipated him and was infiltrated, an inquiry was involved. And then the persons that were described in the testimony that I read to you were also persons who became members of the Communist Party and so it was considered considerable control if not dominance of the --
Tom C. Clark: They were all in this union?
J. Lee Rankin: I beg your pardon?
Tom C. Clark: They were all in the same union when he was vice-president?
J. Lee Rankin: No. Not -- not all the people that were asked about. The same -- the people that I described that were officers were in the same union. But in the Committee's inquiry, in regard to all of these long list of other people, it was shown that some of them were members of other unions. Some of them were active in city life and were not in union activity at all. And others were a part of this union activity and actively forwarding the Communist cause in this union.
Hugo L. Black: Did the Committee report this incident to the Congress?
J. Lee Rankin: Not the detail of it. It was reported before the action in regard to the contempt.
Hugo L. Black: When they reported it to the Congress, did they give any indication as to the relevancy of the evidence?
J. Lee Rankin: Not any -- not in any detail.
Hugo L. Black: How did they -- did the Congress just vote on it when there's -- without any report or any indication of any kind as to the materiality of it?
J. Lee Rankin: They reported the fact of the inquiries that were made and the failure to answer, and asked that the action be reported by the speaker -- sent by the speaker to the United States Attorney for action.
Hugo L. Black: Was that all that took place?
J. Lee Rankin: Well, they also had the report of the Committee in regard to this legislation which described here, the investigations in general terms.
Hugo L. Black: But there was no discussion and no -- of the report that they made asking if he be cited, or any explanation as to the relevancy or irrelevancy of the evidence? No question?
J. Lee Rankin: No.
Felix Frankfurter: Is that the normal way and is that the conventional way in which the Committee that is bulked in its inquiry, reports to the House or Senate respectively and ask that the matter be referred to the Department of Justice or U.S. Attorney, whatever it is?
J. Lee Rankin: That's my understanding as to usual way, I would -- I am not inquiring into that, I would have to check it (Inaudible) --
Felix Frankfurter: Would you be good enough to do it?
J. Lee Rankin: I'll do that.
Hugo L. Black: Go back to some distant when you do, so that we won't just get what happened right recently.
J. Lee Rankin: Yes, I will.
William J. Brennan, Jr.: Mr. Solicitor, assuming a legislative purpose in this question, what have you to say to Mr. Rauh's point that nevertheless the First Amendment stood as a bar against they're being put to Watkins?
J. Lee Rankin: It seems to the Government that that claim of the First Amendment, in the first place it was not made until in this Court and I think in the Court of Appeals it was also made, but it was not made at the time of the hearing. Secondly, we feel that --
William J. Brennan, Jr.: Which hearing? Do you mean the -- before the Committee?
J. Lee Rankin: Before the Committee. That the claim of the First Amendment is being made not on behalf of this petitioner, but on behalf of these other people. And that the constitutional right is a personal right. It belongs to these other people and there's no right in the petitioner to say, "I don't want to tell anything about John Jones because --
William J. Brennan, Jr.: Well, I thought Mr. Rauh's point was -- I maybe wrong that the right arising from the First Amendment is that the witness be saved the humiliation of being what at least to him, is the invidious position of being an informer.
J. Lee Rankin: Well, assuming that there -- if that is the position, we don't think that there is a right of silence in connection with the First Amendment. That the protection of the First Amendment is for the right of speech and the opportunity to speak so that the various positions or ideas maybe presented and considered, and even cause a change, lawfully in the form of Government.
William J. Brennan, Jr.: In other words, it covers what maybe emitted and that's what maybe remained undisclosed?
J. Lee Rankin: Yes, Mr. Justice.
William J. Brennan, Jr.: Is that it?
J. Lee Rankin: However, there's -- if there is any right of that character, it seems to us that the -- that must be balanced against the right of the Congress to carry out its constitutional power as a legislative body. And that in this situation, that the legislative purpose is valid if they were trying to develop that and develop the information so Congress would have the knowledge that the right to inquire must be as broad as the right to legislate in order that Congress have the information that it can make valid desirable legislation pass it. And that in balancing those rights which of course are not absolute that the congressional need must be recognized and it would be the one that would prevail in this situation and have to if we're going to have the Congress -- have the information that it must have for legislation.
William J. Brennan, Jr.: That suggest then that only the Fifth Amendment is their protection against a refusal to speak if there is a connection legislatively of the question.
J. Lee Rankin: That's right. There is a question of pertinency of course under the statute.
William J. Brennan, Jr.: Well, I'm assuming for legislative purposes.
J. Lee Rankin: Yes, that's what I thought was the question.
Hugo L. Black: And if there's a balance in the process, I suppose it wouldn't be in the abstract, I don't know where there is but you would look in a particular instance to see if it invaded the right of the First Amendment to any extent? I'm quoted it was in that particular case as to have but the -- took get this information and balance it against the right to be silent if there was one?
J. Lee Rankin: Well --
Hugo L. Black: You couldn't do it in the abstract could you?
J. Lee Rankin: No.
Hugo L. Black: If you're going to have a balancing process.
J. Lee Rankin: I -- I agree you couldn't do it in the abstract, Mr. Justice Black, but I do think that the power that you're dealing with here is with regard to a coequal branch of the Government. And I think that just as you are very careful about declaring any congressional action to be unconstitutional when they legislate that even more so in this area, the Congress needs to have a recognition of the fact that it has to have knowledge, that it has to have information. And here, you're dealing not with a particular law but with the power to conduct legislation -- legislative activity itself, and therefore, all of those considerations have to be taken into account when you're making the decision. And the presumption if you are dealing with the activity of another court, lower court, would be that it would be a valid action, that the court was -- taken. And it seems to be it should be a fortiori as to the Congress in a particular -- in a situation, so that -- and I do not think that you can disregard properly the rules that should apply to examine into this area of congressional action, and its -- and the needs of the Congress to be able to inquire and that there should be a presumption that when an inquiry is being made, that they are trying to do it in accordance with their duties and responsibilities. And that you take along all of that laws in applying the -- or answering the question about your situation as we have here.
Felix Frankfurter: This was a Subcommittee, was this not?
J. Lee Rankin: Yes.
Felix Frankfurter: How many members on this? Was there three or five?
J. Lee Rankin: My recollection is that they're not required to be --
Felix Frankfurter: In this -- in the actual -- in the actual inquiry, how many?
J. Lee Rankin: I -- I'll have to check that.
Felix Frankfurter: But it was a Subcommittee?
J. Lee Rankin: Yes, it was.
Felix Frankfurter: Let me ask you this, Mr. Solicitor, and the question I'm going to ask you in one who I think is conscious of the -- in grave questions raised by this, more particularly who were -- does not think that we ought to be (Inaudible) here, confining in this power of Congress, scrutinize independently whether it's -- what the -- whether its legislation maybe potentially relevant or not. It's from that point of view that I ask. How restrictive of everything, how embarrassing to the plea that you're making and from my point of view properly making? And I'd say it carries to through the case, I have any opinion on. But from the point of view with -- to which you're addressing yourself, namely, the importance of the coordinate branch of the Government and the duty to get enlightenment before you legislate or to get enlightenment in order to decide not to legislate. How curving, how trampling to a generous view of that would it be to say that when a -- when a witness before a committee refuses to answer or states a ground withholding that certainly on the phase of it, is an honorable refusal, certainly on the phase of it is one to which one responds as the -- in the ordinary civilized society. How crippling would it be to all to the most generous and hospitable alliance of the congressional power of inquiry to say that when you have no more than this, it all events you ought to be fortified in the relevance by saying, "Well, we'll adjourn. We'll get a vote of the full committee." Or "we'll make it clear by explicitness that this does bear on the legislative purpose." And my legislative purpose that I have indicated means not only that they must legislate but they often -- ought not to legislate. How much -- how curving would it be not to let it dried off on this -- ask a question, you know John Smith? You know William Jones? You know Henry Robinson? And you know Fred Phillips? And then come down with a contempt power not exercised by Congress on its own responsibility but going to the courts and asking the courts to impose that criminal sanction?
J. Lee Rankin: Oh, I -- I think that the -- I mean the facts of this particular situation, that the assumption of the Congress trying to act fair and in partially, they're entitled to and to have that applied in this particular case. Now, if you assume that they were not acting -- trying to act fairly --
Felix Frankfurter: I'm not assuming anything. I'm just assuming that what you rightly put to the Court in their balancing, that when you extract testimony from a witness, who gives the reason as this man did to himself has not been invasive as to anything pertaining to his own conduct. He's ready to be pillared to the extent of that pillar he's in and then says you're asking me now about people who -- who seem to me to be honorable citizens, so far as I know haven't committed a crime and I don't want to make a disclosure. You could ask him too much for the Committee then either to expound the question, make it clear and not have to the witness or if it gets beyond that to have the courts not rest on any presumption, presumably (Inaudible) company had laudable legislative purpose. Will that be asking too much?
J. Lee Rankin: No, I think the record shows that they -- they thought there was a clear understanding of the question that was being asked and their purpose in asking. So that I think the record shows that they were not trying in anyway to be unfair to anyone if there's a mutual understanding. He understands on his legal grounds whatever they were and they felt that there was no other answer.
Felix Frankfurter: Your answer to my question is that this record satisfies those implications of fairness that I have put to you?
J. Lee Rankin: I think they did Mr. Justice.
Felix Frankfurter: That's your answer.
Earl Warren: Mr. Rauh.
Joseph L. Rauh, Jr.: Justice Frankfurter, the provision on the Subcommittee is that whoever is in the room is a Subcommittee. That is actually shown by the record here that whoever happens to be present at even after recess, the Chairman says at this point is a Subcommittee.
Felix Frankfurter: Well, that's not for us to criticize or (Voice Overlap) --
Joseph L. Rauh, Jr.: Well, I agree. I was only saying --
Felix Frankfurter: Yes, I understand.
Joseph L. Rauh, Jr.: -- that neither Subcommittee, because there were two, actually here, nor this Committee has ever suggested the relevance of the questions we have been asked. Now, I would suggest to Your Honors that the Solicitor General's very clear statement here indicates very dangerous of retroactive rationalization that I have referred to before. I was at the Committee in the trial court, the Court of Appeals and I read the briefs in this case, that suggested that Rumsey's testimony was connected with our testimony in the sense that that sentence about propaganda was ever put to us, has never been mentioned in any document in this case until we came in this Court and heard this, this morning. In others words, what I am suggesting is that the very point I was making has been demonstrated, you can always look for something somewhere that wasn't told to the witness but that somebody else could say might have been relevant, had it been told to the witness. Now, maybe Rumsey and Spencer testified two years before. Rumsey testified six to eight weeks before the witness, that suggested this witness was in some way connected with the subsidy of parts of that testimony, I do not see. They didn't ask him one question about any substantive thing they had asked Rumsey and Spencer. They only asked him to name these people. Now, I'd like to answer Mr. Justice Brennan's question on that -- on that point. I would take -- take it was did not -- when he denied the thing about himself, didn't he then bring into question, the credibility of Rumsey and Spencer about these other people. Of course he did. I -- I readily say that. But unless building that list of Communist in the mid-1940's was a legislative purpose, then he couldn't be required to go into that. For example, suppose I want to go before the -- a committee, these were voluntary witnesses. Suppose I want to go before the House on American Activities Committee and I want to name everybody in this room as Communist, I can do that. There's no way anybody can stop me. I then have a privilege against libel and slander in doing it and then they subpoena my associate. There had been no legislative purpose in my going before. It had been a clearly intended exposure by me and the Committee. Then they subpoena my associate and they asked her if all of these people were Communist, and she says, "I would not. I cannot answer this. I cannot inform on them." The fact that I have been a willing tool of the exposure of the Committee does not give them a right to subpoena somebody else and force them to be a tool of the Committee to determine whether the willing tool of exposure was in fact engaged in a legislative purpose. In other words, the fact that Rumsey and Spencer were willing tools of the House Committee on the exposure point does not make petitioner when he goes before them, require to answer questions that were asked for exposure. So it seems to me that where the Solicitor General and I find company is not -- not the petitioner had in questions the credibility of Rumsey and Spencer, of course he had. Although, I would point out that there is no question of petitioner's credibility in this case. First, because of the fact that it's a contempt case and they did not take any action against him, and second, and I would ask Your Honors to look at page 59 of the Government's brief. There is a statement at the bottom of the page, beginning of the second paragraph on page 59 which is very important related to this, a more complete and candid statement of his, "That the petitioner passed political associations and activities can hardly be imagined.” Now here, the Government is saying, "This fellow was willing to tell everything." Of course they said this in order to prove we didn't have a First Amendment right. But they said, you could hardly imagine a man that's been more candid about this and yet they want to say, nevertheless, he has got to answer questions and become a tool of exposure because Mr. Rumsey and Spencer were willing to be tools of exposure. I suggest to Your Honors that Rumsey and Spencer could have refused to answer those questions on the same grounds that the only purpose -- the purpose made in the Government's brief was to build a list of Communist in 1945. If they could have refused to answer those questions because of the ground of exposure, the fact that they were a wiling tool of it doesn't make him a necessary part of it.
William J. Brennan, Jr.: Mr. Rauh, in that Section, assuming a legislative purpose for this. What do you have to say to the Solicitor General's suggestion that the First Amendment is to protect when you open your mouth but not to keep it closed?
Joseph L. Rauh, Jr.: Well, I was going to come to that, sir. I think, Your Honors, settle that in the Rumely case. I do not feel that the -- I feel the Solicitor General is rearguing the decision of this Court in the Rumely case and the dictum of this Court in Quinn. If Your Honors please, in the Quinn case, in a dictum that Chief Justice Warren did refer to the Bill of Rights as covering the entire -- as covering this field. But I would think that the Rumely case had some of that matter. I don't think it was enough for me to reargue but I want to answer the second question you put to the Solicitor General if I may and that was about this legislation that was passed. Now, if Your Honor pleases, about the report of that -- on that Committee, I'd like to call your attention to page 73 of our initial white brief. The Committee's report on the bill, to which the court below refers, did not claim there had been any hearings on the bill. The minority reports stated categorically that no hearings had been held. One of this minority, who stated that no hearings had been held, Congress embraced it was present of the petitioner's interrogation, it would have been a position and know if the question had been directed in any way of that Amendment. In other words, this legislation was pending and was inactive, but that doesn't of it -- in it of itself demonstrate that this questioning was related to that legislation. It is only related if you are wiling to say or if someone is willing to say that they had to know or they had a right to know the exact number of Communist 10 years before in order to determine whether to pass a law in a different situation at a later time, and when -- and this I cannot repeat too often, and when the Committee itself -- remember this is the Government saying what the Committee thought, not what the Committee itself is saying it thought. What the Committee itself did, namely in never asking this fellow how many Communist were in the union, in never asking him whether he could name others, they never asking him -- they never show the slightest indication in take of -- that they were taking the retroactive census that the Government now claims (Voice Overlap) --
Felix Frankfurter: But now, you're -- you're -- what you've just said the last few minutes, what you previously said, that this -- that justice in the lower court, the trial before a judge, any questions that are logically relevant, remotely so, but logically relevant are not allowed to be asked, the offense, the area of relevance is fenced in an inquiry before a court. So you now say that the area of relevance before a congressional committee, no matter how loose you are is fenced in by the turns of the resolution and if you go beyond that by the separation of powers, is that what your argument is?
Joseph L. Rauh, Jr.: Yes, sir.
Felix Frankfurter: It really gets down to that, doesn't it? That this is unrelated to the allowable range of relevant inquiry with you to do the subject matter with which this commission -- Committee was charged?
Joseph L. Rauh, Jr.: That's correct, if Your Honor please.
Felix Frankfurter: Isn't that -- is that it?
Joseph L. Rauh, Jr.: Yes, and then I'd say I go from there --
Felix Frankfurter: Yes.
Joseph L. Rauh, Jr.: -- to the point that even if they were within the allowable relevance --
Felix Frankfurter: It's been.
Joseph L. Rauh, Jr.: -- in the sub -- sense of the separation of power, there has been no suggested need which could anyway offset their oppressive effect. And I think here we come and I would like to -- I'm sure the Solicitor General did not mean to --
Felix Frankfurter: Well, that's like -- that's like ruling out, waiving the body shape trial.
Joseph L. Rauh, Jr.: Yes, sir.
Felix Frankfurter: That it may have some relevance but it's too costly.
Joseph L. Rauh, Jr.: That is precisely our point, and if Your Honor please, I'm sure the Solicitor General didn't mean to misstate this but I do think it's important on the question of when we raised the First Amendment point. I'm sorry but, we sure did raise it. If you look on page 55 of the -- of our -- of the record, I like to call Your Honors attention to point number 14, in which I say point number 14 is the First Amendment argument that we have made here. I think we made until the 15 point. I am sure Your Honor is familiar with it. The point never passed on by the Supreme Court and I think the reason for avoiding it in the Rumely case is that brought that narrow construction. It was up again last Monday with Quinn and Emspak cases were there and it is more than somewhat in this case.
Felix Frankfurter: Well, is it -- practically to be assumed that in a case like this or anything like it, any lawyer, particularly you, you've raised the First Amendment point (Inaudible) is that right?
William J. Brennan, Jr.: I thought it was still -- as I pointed out that I had raised it sir.
Felix Frankfurter: I thought he said in the hearing?
William J. Brennan, Jr.: Oh, well --
Felix Frankfurter: Well, he may.
William J. Brennan, Jr.: He said first it raised here and then in the Court of Appeals. Now, as to the question on raising it at the hearing, I suggest Your Honors that if you will look at page 85, we raised everything we could. We -- we raised -- we raised everything.
Felix Frankfurter: You've got a form letter, haven't you? [Laughter]
William J. Brennan, Jr.: Well, I wouldn't put it exactly that way. I would only -- I would only suggest that we did raise every point of our power and right to suggest that you had to use those two words, particularly to this Court which has allowed the plea of the Fifth Amendment which is a much more specific thing which has to be raised to suggest we had to use those exact words. I -- I rather doubt there was no indication of any decision of this Court that those exact words would have happen to use. And we certainly were trying to do it. I have no doubt that we did raise it and we raised each stage in the trial. Now, in conclusion there is, I take it, made your point of deference to Congress and I'm second to -- not willing to be second to the Solicitor General in feeling that there should a deference to Congress in this area. But the problem arises when Congress seeks to utilize the criminal processes, where an individual has the right to raise these points. Now, Mr. Justice -- the Solicitor General in answer to Mr. Justice Brennan's question said, “Yes, in the field of communism, the only area you can defend on is the Fifth Amendment.” Now, I just don't believe that the decisions of this Court hold anything like that or that the -- or possibly could hold that. There is a weighing under the Fifth -- First Amendment that is necessary. There is the vagueness that must be considered. There is the exposure that -- that must be considered. It seems to me to say that anybody who is ever in anyway got in one foot anywhere near the Communist movement has lost all his rights against criminal prosecution for refusing to answer questions is to say that if we had taken one area out of American life and said there and there only there are no defenses in refusing to answer questions. Now, I suggest that Your Honors had settled that in the Sinclair case. I thought that that had really settled the point on which this Court said it knows on certain terms that the presumption of validity is great but the presumption of innocence is greater. And it seems to me that that's exactly what we have here. Congress wants to require answers at the Bar of the House, there are certain rights that they have. I do not have that case before me. I do not know the extent of those rights. But when they prosecute criminal for a question, where the relevance has never been stated by the Committee and where a different relevance is presented every time I go to a different court with this case and I hear a different effort to rationalize this reason for these questions, I can only feel it seems to me, perfectly clear that the only possible reason for asking a man the names of whether certain persons were Communists in the 19 -- mid-1940's. We're Asking him that 10 years later was an effort to expose him and them to scorn and ridicule.