Earl Warren: Number 436, Frank Grumman, Petitioner, versus United States. Mr. Rein.
David Rein: Mr. Chief Justice, may it please the Court. Petitioner here was indicted for refusing to answer four the questions put to him by a subcommittee of the Committee on Un-American Activities on July 18th, 1957. Prior to trial, petitioner's motion to dismiss counts 1, 2 and 4 of this indictment was granted and therefore, petitioner went to trial only on the remaining count, count 3. This count, I would like to read it briefly from brief as it appears at page 4, alleged the refusal to answer the following question. As a member of the Communist Party, when he, Mignon, was in the Communist Party, he said, "With you”, and in local term, he said that he sat in closed communist cell meetings with you. Now, I will ask you whether or not he was telling the truth or was he telling a falsehood. I would like to repeat again that this is the only count upon which petitioner went to trial and on which he was convicted. I repeat what would appear to be obvious and repeat it again because this point seems to have escaped the court below completely which thought it was reviewing apparently a conviction on the counts which dismissed and I don't think the point is yet permeated to the Government, at least as far as I can see from its brief. And I contend on the basis of the fact that we only have this count before the Court for review and these contentions really are we -- web into one another that this count 3 question was not pertinent to the announced subject under inquiry that the petitioner was given no explanation of the pertinency of that count, even though they objected to the pertinency of the count and finally related to these other points, the question had no legitimate legislative purpose and that there was no sufficient justification for the invasion of petitioner's privacy in First Amendment Rights.
John M. Harlan II: He made a pertinency before?
David Rein: Oh, yes, he did.
John M. Harlan II: After --
David Rein: Yes, he --
John M. Harlan II: -- (Inaudible)
David Rein: -- he made a pertinency objection by saying, "I don't think that the question is pertinent". That appears, and if Your Honor would permit me, I would like to go into the context, the full context of the case and I will get to that point and read the exact language if I may defer that for a minute. Now first, I like to point out that these hearings were being held pursuant to a formal resolution which was adopted by the House Committee on Un-American Activities Committee on July 10th of 1957. And we have here what we do not normally have in inquiries by the House Committee on Un-American Activities and perhaps because of this Court's decision in Watkins case because these hearings were held shortly after it, we have an exact frame of reference as to what was that the Committee was concerned with. I have set out for easy reference in my brief at page 4 the exact language of that resolution. And you will note that the purpose of the resolution was to investigate whether or not members of the Communist Party or persons subject to its discipline are employed in various media of communications and it goes on with the purpose of determining whether or not we need remedial legislation at the present time to combat dangers of espionage or sabotage in the communications industry. According to the Staff Director of the Committee, Mr. Arens, who testified at the trial, was the only witness of the trial, petitioner had been subpoenaed as a witness in this case on the basis of information the Committee had obtained from a Mr. Michael Mignon. Mignon, according to Mr. Arens, was one of several to use the parlance of the Committee, they have great deal of parlance which is peculiar to the Committee, was one of what is called a friendly and cooperative witness.
Potter Stewart: He is sapient?
David Rein: Well, that's their terminology. I don't say he's sapient. I think it means friendly and cooperative. I don't think there's (Voice Overlap)
Potter Stewart: Then why -- why was it peculiar about the language? Is it ordinary?
David Rein: Well, it's peculiar because I don't know that they have a classification. Some witnesses are classified as friendly and cooperative and others -- it's not peculiar but it's peculiar in the sense that they used this as their regular parlance. I don't know that other people regularly describe witnesses in a formal classification, some being friendly and cooperative as Mignon was and as our particular petitioner here was described as unfriendly and uncooperative.
Potter Stewart: Well, they have pigeonholes in which they put witnesses --
David Rein: Yes.
Potter Stewart: -- in advance.
David Rein: That's correct, in advance. According to the Staff Director, as a matter of fact, this witness Mignon, prior to these hearings had been interviewed in several times by the staff. And it was only after that he was fully satisfied that he was a reliable witness, one who which they would have full confidence that they decided to put them on the witness stand. Now, Mignon testified on the first day of the hearing, these hearings opened up on July 17th. He testified that he and Mignon had been a member of the Communist Party from late 1936 to sometime in 1940 and that during most of this time, he had also been an officer of the American Communications Association, which is a labor union in this communications field. And during the course of his testimony, he repeated for the public record a list of names which he had supplied to the Committee in executive session as people whom he had known as communist during this period and he included on that list the name of the petitioner. Now, the petitioner was the first witness to go onto the stand on the following day, that is July 18th. And although the Committee had never had any contact with the petitioner before, he was classified in this pigeonhole as being an unfriendly and uncooperative witness. The petitioner relying on what was then the recent cases decided by this Court in Watkins and Sweezy, I believe they had been decided maybe six weeks before. This hearing was in July of 1957. He refused to answer questions as to whether he was a communist or knew of communist in the communications industry. Now, the Staff Director and the Chairman of the Committee both pressed petitioner to answer to these questions, to answer the question as to whether he was now a communist. And they went at some length to explain the pertinency of that particular question. And I think it's important in the light of the context and the fact that we have a different question before us, to read to you why the Committee said it wanted an answer to the question as to whether the petitioner was now a communist. Well, I like to read, it's set out briefly at my brief at page 67 what he was told by the Staff Director, Mr. Arens, namely, “Mr. Grumman, if you are now a communist, you could tell this Committee at all probability of directives from the Communist Party to communist respecting the vital communications facilities of this nation” --
John M. Harlan II: Where is it in your brief?
David Rein: 6 to 7.
John M. Harlan II: 6 to 7.
David Rein: I'm sorry. “If you are now a communist, you could tell this Committee of the techniques proposed by the Communist Party to cease the communications industry to intercept messages to sabotage communications in the event of war”. Then the Chairman of the Committee added the following note, he said, he wanted to bring to the witnesses' attention the then recent decision of Judge Youngdahl, District Judge Youngdahl in the District Court of Columbia in your case of United States against Peck, in which he said that -- Judge Youngdahl there he said that the Communist movement now constitutes a criminal conspiracy. In the Peck case, Judge Youngdahl had made a sharp distinction between questions dealing with what he said was the past, pre-1950, which he said were not permissible questions to put to a witness but he said that the situation being roughly post-1950 might be different because since 1950, the patents of the Internal Security Act, the Communist movement was now a criminal conspiracy. Now after considerable colloquy back and forth, the petitioner made the point clear and he said he wanted to respond to the Committee and make it perfectly clear and he said as follows. He says, "I have no knowledge or information whatever of anybody who does or wants to conduct sabotage and espionage or illegal interceptions and so forth. I know of no directives of anyone at all to do this kind of thing". He also told the committee he never heard or knew of no directives of the Communist Party to obtain control of the American Communications Association. At that point, the Staff Director announced that the staff interrogation of the witness was concluded. There was some further colloquy at which point, a prepared statement which the witness have been prepared or the aide of counsel was then read into the record although prior to that, the Committee have made a big point of refusing to let him refer to it.
Earl Warren: We'll recess now, Mr. -- Mr. Rein, you may continue your argument.
David Rein: Thank you, Your Honor. I believe I carried the statement of facts to the point where the Staff Director had announced that the staff interrogation of the witness had been completed. The Chairman of the Committee, Congressman Doyle, then inquired of the two other members of the subcommittee whether they had any questions to put to the petitioner. Both answered in the negative. One member of the Committee Mr. Scherer added, "Have a motion to make is the witness excused". The Staff Director again said, "I have no further questions". And then it appears in the record that the conference was held by the members of the subcommittee and the staff, off the record and the subject of that conference does not appear on the record of the transcript. And it was immediately following that conference, after the Staff Director had said, “The staff interrogation was concluded", and after the witness had said that he had no information on any of the subjects which were the stated subjects of inquiry as set forth in the resolution. It was after all that happened that we get to a colloquy which lead to what is now count 3 in the basis of the indictment and the conviction. I have set that out and I like to refer the Court to follow me now, my brief from page 9 to 10. The Chairman of the Committee, Mr. Doyle said, "Witness and witness counsel, I am calling your attention to the fact that a few minutes ago, I believed I quoted verbatim the testimony of Mr. Mignon. You are acquainted with him, are you? You know who he is." Mr. Grumman, "I have certainly met Mr. Mignon." Mr. Doyle, "Certainly met him, well he said he met you." Now on yesterday, he, a former admitted communist for several years in the same union of which you are now secretary-treasurer and at least you were one term president according to your own testimony, voluntarily named a number of the officers of the union before this Committee and he named you Frank Grumman, secretary-treasurer of A.C.A. Local 10 and Mr. Fraser was another member of the subcommittee and dispersed as a member of the Communist Party and Mr. Doyle took on, "As a member of the Communist Party, when he was in the Communist Party, he said with you and in local term, he said that he sat in closed communist cell meetings with you. Now, I will ask you whether or not he was telling the truth or was he telling falsehood." Now, that big mouthful or rather long discussion is what the indictment claims to be the question and which is the basis for the question, which formed the conviction. The petitioner replied, "I decline to answer that question sir on the same grounds as previously set forth in the statement" and as I've indicated, the statement by this time, it included in the record and the statement among other grounds objected to the lack of pertinency of some questions. Mr. Scherer said, "I asked that you direct the witness to answer the question". And Mr. Doyle presumably recognizing, that the witness had objected on the ground of pertinency, and recognizing the requirements of the Watkins case, went to answer as follows, "I direct you to answer the question, it is certainly pertinent. The testimony of Mr. Mignon and others has already shown before this Committee that the union was at that time controlled by the principal officers, by identified communists in control of the policies of the union of which you are now a member and secretary-treasurer in the field of International Cable Communications, which is certainly an area involving the secure -- security of our nation, I direct you to answer the question." The petitioner again replied, "Sir, I decline to answer the question on the grounds of lack of Committee jurisdiction under the Watkins decision and on the grounds of the lack of pertinency". His last objection went unanswered because the Chairman of the Committee then went on to something else. Now, we submit first, on the basis of this record, that the Government failed to carry its burden of proof to show the pertinency of this question, whatever it may have showed with regard to the inquiry itself. And we proceed on, which I believe is the premises established by the decisions of this Court, that a conviction of contempt may be sustained only if the particular question which forms the basis for the conviction is pertinent to the subject under inquiry, not of some other question which is not in the case. And it is not enough to support a conviction to show that there is a general valid subject of inquiry, now, and also under the doctrine of this Court, if the burden is on the Government to prove the pertinency. Now, the particular question here or though rather obscurely worded input, inquired whether or not the witness Mignon was telling the truth when he testified that he had attended communist cell meetings with the petitioner at some undefined period between 1936 and 1940. I don't know when it was but we know it was certainly no later than 1940 because that's when Mignon left the Communist Party. Now, the subcommittee's authorizing resolution directed an inquiry into current conditions in the communications industry. Furthermore, by the time this question had been put to the witness, the witness had already testified that he had no knowledge or information to give to the Committee concerning these subjects of espionage, sabotage, interception of communications or alleged communist control of the union. As a matter of fact, he did give them some testimony to the effect that he didn't see that was possible for anybody to engage in espionage or sabotage and under current conditions but the Committee indicated that they were not interested in that type of testimony. They were only interested in testimony which said that there would be a danger and they were not interested in any witnesses' testimony that said there was no danger. These were the subjects that fell within the mandate of the subcommittee. And petitioner had been told by the Staff Director earlier during the colloquy that these were the subjects with which the Committee was concerned. Now, this particular question in count 3 was both remote in time and seemingly off the subject of the inquiry. It certainly has no a priori legitimate connection between this question and the state of subject under inquiry. Now despite this, the Government wanted to prove pertinency although it doesn't appear from the face of the matter. If the Government burden to make that showing at trial. At the trial, they showed nothing other than the actual transcript of the case, the transcript of the hearing. So, we gained nothing other than what I have already read to Your Honors with regard to the question of pertinency. Now, the Government here in its brief offers three separate grounds of pertinency for this particular question. Before discussing the Government's grounds, I like to note preliminarily that since none of these grounds were communicated to the petitioner at the hearing itself when he objected to pertinency, I do not believe the Government can rely upon them here at all. I think that principle was best set forth in the dissenting opinion of Justices Harlan and Frankfurter in Deutch, even though it was a dissenting opinion that spoke I'm sure on this point for the unanimous court. And I like to quote very briefly from that because it -- it expressed it quite heavily. It said, "The Government must stand or fall upon the explanation of pertinency given at the legislative hearing since it would obviously unfair to allow the Government at trial to prove pertinency on a different theory than was given to the defendant at the time he testified and on the basis of which he presumably determined that it need not answer the questions put". I like to also note parenthetically that not only are the three grounds which the Government advances for pertinency here not grounds which will communicate it to the petitioner at the hearing but they were not grounds which apparently occurred to anybody either at the trial or at the court below and have come forth from the Government for the first time in the brief in the case here. The Government contends first that the question was pertinent because the Government says it tested the credibility of the witness Mignon. Now, we submit that if the -- if the question had any purpose, it is certainly was not to test the credibility of the witness Mignon. Not only was the petitioner not told that that was the purpose but on the contrary, after he refused to answer the question as to whether Mignon was telling the truth or the falsehood, the Chairman of the Committee reasserted his confidence in Mignon's testimony and he said, "Mignon's testimony on the testimony of the others have already established this matter to our satisfaction”. It's a -- I don't see how anybody could possibly conclude from that that the Committee was interested in testing the credibility of a witness whom they had satisfied themselves was a reliable witness and whom they had classified as a friendly cooperative witness in contrast to the witness -- to the petitioner. Further, there is an additional objection here. Furiously enough although the trial court never bothered to state why he considered the question to be pertinent, he gave no reasons at all. He did make an expressed finding, as acknowledged by the Government here, that the question was not put to the petitioner for the purpose of testing Mignon's credibility. Now, the Government argues here that the trial court was mistaken on that point and this Court can disregard the trial court's finding. I suggest the matter is not that simple. As this Court has indicated in a number of cases particularly in Sacher, the question of pertinency and particularly the explanation of pertinency must appear to the petitioner or to the witness while he is on the witness stand with what has been described as undisputable clarity in the language of this Court. We have a situation here where one tribunal says that the question does not have that meaning or significance to suggest that you might reject and overrule that it seems to me at any event, makes it perfectly clear that the question does not indisputably clear, its -- its argument. And we can dispute what it might or might not be. And a matter of fact that was the principle of Justice Harlan's concurring opinion in Sacher in which he pointed out that the question was there, it cannot be set to be indispu -- indisputably -- clearly pertinent to the subject under inquiry when the lower tribunals below had differed as to the meaning and significance of the questions. Secondly, the Government argues that the question was pertinent because it was preliminary. I submit that certainly that suggestion is really unpardonably inaccurate. The question was put to the witness and if we want to look just at pages in the transcript in the record, the interrogation was commenced and the printed record at page 69, this particular question was not put to him until page 97. It was put to him almost at the close of the hearing. It was after the staff interrogation had been concluded. It was after two members of the three-man subcommittee had announced that they had no further questions. One of them actually thought that the witness had been excused. Moreover, the witness had already testified that he had no information as to the announced subjects of inquiry and yet the Government suggest that this question was pertinent because it was preliminary. Preliminary to what? I do not know. It has some suggestion here that if he had answered the question, the Committee would doubtless of going on and done several other things. I submit that --
Potter Stewart: What are the indictments alleged that the subject under inquiry was?
David Rein: It didn't allege anything, Your Honor. The indictments never alleged as one of the points in our brief.
Potter Stewart: Well on the previous case, in the Yellin case, the indictment did allege in some specific detail of the subject under inquiry.
David Rein: Well, we have briefed in our brief and I won't have time to get into it, that the Government in the District of Columbia has adopted the practice of never alleging the subject under inquiry or never alleging pertinence. And I think as I say at my brief, and it's a point I don't think I'd be able to brief, I think they do it decidedly so that when they get into court, particularly on appellate court, they're free to move around and think of different subjects under inquiry or different grounds of pertinency. And also because sometimes when these cases come from the Committee, it's very hard to know of what the theory of the Committee was and I suppose they solved --
Potter Stewart: Well in here --
David Rein: -- both of those problems.
Potter Stewart: -- in this case you don't know what the theory of the grand jury was, do you?
David Rein: Well, I don't know. I don't know what the theory of anybody is here except that it seems to me this question clearly is not pertinent.
William J. Brennan, Jr.: Do you ask -- do you ask for a bill of particular?
David Rein: Yes, I did Your Honor.
William J. Brennan, Jr.: (Inaudible)
David Rein: Yes.
William O. Douglas: Did you take an exception for that?
David Rein: Well, it's not -- I'm sure it's preserved in the record without the necessity of taking exception under our procedure. Finally, the Government contends that the question and this is a contention that they made for the first time in its brief here although they did not even have in the opposition to assert that although remote in time, it's pertinent because remote questions are pertinent. Well, I just suggest that that only begs the question but to say that it's pertinent because they believe it's pertinent. I want to turn now to my second prime in may argument and that is the failure to give within the language of Watkins a meaningful explanation of the pertinency of the question once there was an objection on the ground of pertinency and to quote very briefly from Watkins as to the burden placed upon the Committee, I think on occasion when there is an objection, to be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it. Now, petitioner's pertinency objection was met first with the statement of Congressman Doyle that the question was certainly pertinent. Now, that of course is not an explanation. He followed with what I have read to Your Honors and I have set out again at page 30 of my brief, simply a statement that they were satisfied from the testimony of Mignon and other witnesses that they really had all the information they needed on this subject. Now, that would only raise the additional problem it seems to me as to -- it's rather right for the subcommittee to decide or press a question when they were already satisfied that they had all the information they needed on the subject. But in any event, whatever view one might take of Congressman Doyle's remarks, it certainly does not contain any connective reasoning, connecting count 3 to the subject under inquiry. And least of all, doesn't suggest any of the reasons given by the Government here to support pertinency. I have only a brief minute or two. Now, I like to just suggest if I may, the application of the balancing test to the particular facts of this case. Now, the court below and I believe the Government here conceives that the balancing test must be met but it says that the balancing test must be met, and I want to take it from a different point of view not so much the rights of the petitioner, but what was the interest of the Government. And they say the interest of the Government was to preserve the communications industry against disaster. Now, I would like to submit only this one particular question to Your Honor and I believe it's supported by the language of these cases. What connection can there be with obtaining an answer from this witness to this question as to whether or not Mignon was telling the truth about some communist meetings in 1936 to 1940 with a security of the nation. And I think it is important --
Potter Stewart: Now, let me just -- you -- you were to concede with.Sure that was just an indirect way of asking him whether he'd been in those conference meetings.
David Rein: I don't concede.
Potter Stewart: (Voice Overlap)
David Rein: In fact but let's assume that. Let's assume that.
Potter Stewart: It's an --
David Rein: Let's assume --
Potter Stewart: alternate way of --
David Rein: the question --
Potter Stewart: -- stating that question.
David Rein: Whether he was at communist meetings in 1936 to 1940. I say we have the same problem. What is that going to help particularly in the context already established of a witness who has told this Committee that he had no information on all of these espionage and sabotage? More than that let me indicate --
John M. Harlan II: You think the Committee is bound by this statement (Inaudible)?
David Rein: The Committee is not bound by it, as a matter of fact that -- it wasn't.
John M. Harlan II: And you can't any further, you can't cross-examine and can't go to find out whether he's telling the truth?
David Rein: Well, let's put it this way, if the Committee is not interested and -- and the Staff Director there has made it perfectly clear, not only under the annual report reflects that. When they wrote up this case, they resided the testimony of a number of witnesses who said that there was a great danger of espionage and sabotage. This witness and other witnesses including witnesses from the industry, who said that the nature of the manner in which the messages were sent was such that espionage was almost impossible. It was let completely out of the annual report. And I asked Mr. Arens about that on the witness stand and he said, "Well, we did not include in our conclusions any testimony from witnesses in whom we had no confidence, we did not interpose much confidence”. Now if they want to disregard his testimonies, they were going to disregard it anyway. I don't think there's any question about it. But this is -- the purpose of this question is not to cross-examine him. The purpose of this question was perfectly clear to me to harass him. But I don't know or much more likely if one may give another and there's a good bit of wisdom, in a quotation I have made from Debrow's case and I think one must was recognized that even where there is a valid subject of inquiry before a committee, congressmen have a tendency, very often, to ask questions from either curiosity or from interest. Now not every one of those questions has a great bearing on the subject and most congressional committees I believe that they get into a dispute with the witness or something rather will drop the matter. I can't see how any committee can seriously believe, who is seriously interested in the state of subject of inquiry, can seriously believe that an answer to this question would have been of any assistance to it or that the answer to that question is of such importance that the petitioner here is entitled to go -- should be sent to jail for four months for refusing to answer. I believe my time is up.
Earl Warren: Mr. Terris.
Bruce J. Terris: Mr. Chief Justice, may it please the Court. Petitioners in the Grumman and Silber cases were convicted for refusing to answer questions during an investigation of Communist activities in the communications industry. That is the cable, telegraph and radio companies which transmit messages both Government and private messages, both within the United States and between the United States and overseas. The American Communications Association, a leading union in the communications industry, had been expelled from the C.I.O. in 1950 for following Communist policies. In addition to this information, the Committee had considerable information that principle officers of the Association were members of the Communist Party. The purpose of the investigation was to discover whether these officers were members of the Communist Party and whether the existence of communist in the communications industry endanger national security. If such a danger existed, the Committee indicated that it will -- that it would propose corrective legislation. Therefore, throughout the hearing, the Committee repeatedly asked witnesses what legislation could be used to lessen the danger from Communist activity in the communications industry. Before petitioner Grumman appeared before the Committee, and of course also before petitioner Silber appeared since he was subsequent to petitioner Grumman, Committee heard five witnesses. Three of these witnesses were leading officials of large companies in the communications industry. The other two witnesses were members of the American -- were former members of the American Communications Association, long time workers in the communications industry and former members of the Communist Party. The latter two witnesses testified that present principle officers of the American Communications Association had at least at the time that the witness -- witnesses had been in the Communist Party, been members of the Communist Party. Petitioner Grumman, like petitioner Yellin, had been publicly identified at a committee hearing as a member of the Communist Party. Michael Mignon testified. The petitioner Grumman and he had been members of Local 10 of the American Communications Association and of the Communist Party together and that they had attended close meetings of the Communist Party together. These five witnesses further testified that Communist in the communications industry posed an extremely serious danger to American security for three reasons. The first reason they said is that Communist could intercept secret Government messages. For these messages were generally in code, they thought that if the messages were copied down and taken away from the -- particular place where they -- the communications place, the code could well be broken. The second way of the Communist posed a great danger was that in a time of crisis, even one or two Communist could easily, in a few minutes, sabotage key components necessary to send important Government messages. And the third reason, that Communist in the industry post a great danger, was that during an emergency, they could use the communication system to send messages between themselves. When petitioner Grumman appeared before the Committee, he told the Committee that he was a long time officer of Local 10 of the American Communications Association, secretary-treasurer to be exact and a long time worker in the industry, 25 years in R.C.A. He refused to answer numerous questions. However, his conviction was based solely on his refusal to answer a single question. After petitioner had refused to answer questions concerning current Communist activity including whether he was currently a member of the Communist Party and who has knowledge about current Communist activity in the communications industry. The Committee went back to advance on which it had definite information. In essence, it went back to the beginning with the information which indicated to with the petitioner Grumman did have information concerning the subject under inquiry. The Committee therefore asked petitioner whether Michael Mignon was telling the truth. When he testified, the petitioner had been a member along with the witness of the Communist Party and Local 10. And the petitioner had been in closed communist cell meetings with the witness. This question we submit was in effect whether petitioner had been a member of the Communist Party at that time, which was between 1936 and 1940. Now, before I turn to the First Amendment arguments and to the arguments centering on pertinency, I would like to consider this briefly. The question was -- which Mr. Rein suggested, whether the indictment was insufficient because it did not state the subject under inquiry in specific terms and did not state the relationship of the particular questions to the subject under inquiry. And in addition, a subject, an argument which he did -- did not mention whether the indictment was insufficient because it alleged that the refusal to answer was unlawful but did not state that it was willful.
Potter Stewart: All those are three separate --
Bruce J. Terris: Well, the first two are quite -- are -- are really -- are really the same thing. Well, I -- I won't -- I wont debate that. It doesn't really -- I think the answer is the -- is -- is the same if it -- the question whether you have to state the subject under inquiry in the specific relationship to the questions to that subject, the -- the Government's answer at least is -- it -- is the same for both.
John M. Harlan II: (Inaudible)
Bruce J. Terris: That's right. But the -- the content of our answer is the same, that's right. All these questions, all three of them broken down into pieces are in the six cases that were in the -- that were submitted to this Court in the fall involving contempt of Congress. Now, the indictment which petitioner attacks is identical in form with that which has been repeatedly before this Court, in Watkins, in Barenblatt, in Wilkinson, in Deutch and almost every one of the other cases which has been here. Yellin is an exception, Braden is an exception insofar as willfulness is specific but I believe that the subject under inquiry is not specific. And both the petitioner's contentions have been repeatedly rejected by the Courts of Appeals. In fact, there is no decision that we know of which supports petitioner's contention, any one of the three contentions. Now, turning more specifically to petitioner's contention that the indictment should have specified the particular subject under inquiry in the particular pertinency of the questions to this subject. Rule 7 (c) of the Federal Rules of Criminal Procedure states that the indictment, and I'm quoting, "shall be a plain concise and definite written statement of the essential facts constituting the offense charged". The federal courts, including this Court, have repeatedly held that the Rule 7 requires no more than the indictment and charge the essential elements of the offense in terms -- in the terms of the statute so that the defendant can adequate -- adequately prepare his defense and prevent a second prosecution for the same offense. And I may say that Rule 7 and the decisions of this Court under it and the decisions to that matter of the court -- Courts of Appeals have indicated that -- that there are -- that increasingly, the idea of indictments is to be a simple and as brief as possible. If -- the whole trend of the cases has been in this direction, petitioner's quite technical argument, it seems to us to ask -- to go back at least in part to the old rules of technical and complicated and very full indictments. In the Markham case even as long ago as 160 United States, however, this Court stated that an allegation, that a false statement was material to an inquiry then pending, and I'm quoting "was material to an inquiry then pending". An allegation which is virtually identical to that made and the indictment here was sufficient to charge perjury.
Potter Stewart: I noticed on footnote 33 on page 108 of brief that you --
Bruce J. Terris: That was not a holding.
Potter Stewart: -- exchanged your positions?
Bruce J. Terris: Yes, that is not a --
Potter Stewart: As to what Markham case holds?
Bruce J. Terris: No, that is not a holding. But the dic -- but the dictum is showing --
Potter Stewart: Now, in Shelton, it was represented to us that was a holding and in --
Bruce J. Terris: There was a mistake.
Potter Stewart: -- Markham case, it was not.
Bruce J. Terris: There was a mistake, Your Honor. It was -- it is not a holding because the Court went on in Markham after stating quite fully that this was sufficient, that it went on to say that you can interpret from that indictment what the subject under inquiry was. However, there's full paragraph -- in fact, I think at the point that you mention at the footnote, we said our -- most to their paragraph, although not all, in which the Court with -- with obvious approval set forth numerous statements by authorities saying that all that had to be stated in the indictment was that that the inquiry was material without specifying the particular subject to the inquiry. And this Court stated in the Sinclair case that the pertinency of questions to the subject under inquiry, in a contempt case is not essentially different from the question as to the materiality of false testimony charged this perjury in prosecutions for that crime. Now, turning from perhaps what is the -- the technical rules of what an indictment must charge to the purpose for which the indictment is required to charge var -- various elements to the offense, this Court in the Debrow case and in -- and in another recent cases have -- has said that indictment must charge the elements of defense for two purposes. First, in order to give the defendants sufficient information to defend himself and second, to prevent a second prosecution for the same offense. Now, the indictment here gave petitioner, we submit, ample information to prevent any possibility of a second prosecution for the same offense. It has specified the subcommittee which held the hearings, the date of the hearings and the questions, the particular questions which petitioner refuse to answer. Therefore, we -- we believe that there is no possibility that he could be tried again for this offense. Now, the only serious argument really the petitioner has, that the failure of the indictment to specify the subject under inquiry and the pertinency of the questions to the subject under inquiry, was that it deprived of a fair chance to defend himself. That is -- I hope to your time to show petitioner as this Court is required was specifically apprised at the hearing of the subject under inquiry and the relationship of the question, the questions which he refused to answer to that subject. This transcript as a public document, that there could be little doubt that he understood the subject under inquiry, if there is doubt, if he was not apprised, then of course quite outside of the -- of the indictment question, he could not have been convicted under this Court's rule in the Barenblatt and in -- in Deutch cases.
Potter Stewart: Instead, you've given us the two tests by which the sufficiency of an indictment isn't measured according to your position, would they be any different with respect to an information? Would they be the same -- those two tests applied as --
Bruce J. Terris: I would think so.
Potter Stewart: -- well then what's the deference between -- what's -- what's the purpose then in requiring an indictment? Are --
Bruce J. Terris: Well --
Potter Stewart: -- there any further additional test applicable --
Bruce J. Terris: You go to a grand jury.
Potter Stewart: -- to an indictment which are not applicable to an information?
Bruce J. Terris: Well, there's -- there's one of course additional protection for the defendant.
Potter Stewart: What's that?
Bruce J. Terris: They goes -- they go to a grand jury and the grand jury supposedly --
Potter Stewart: And the grand jury supposedly indicts somebody for his specific offense?
Bruce J. Terris: That's right. But it the -- the decisions of this Court have made clear that all that it has to do is set forth the elements. Now, it set forth the elements. It said that the questions were pertinent. Now, petitioner's argument is what should have said why they're pertinent. In order to do that, it would have -- it would have to say that they're --
Potter Stewart: Well, his first argument is that the indictment should -- that the grand jury should have said what the subject was.
Bruce J. Terris: Well, that's part of why they're pertinent. You state what the -- the subject and then you give the connective reasoning between the questions to the subject.
Potter Stewart: Well, but this -- his first step --
Bruce J. Terris: Okay.
Potter Stewart: -- would be based --
Bruce J. Terris: Okay.
Potter Stewart: -- should have said identified the subject.
Bruce J. Terris: Okay. That is not an essential element of the offense. That is not -- that is not in the -- in the statute. If the statute requires that the -- that the questions be pertinent, the grand jury charged the petitioners and actually this issue only comes up in these three cases in the Grumman case. The petitioner refused to answer pertinent questions. Now, as we read this -- this Court's decisions, that's all that's necessary. For example in the Debrow case, which was a -- which was a perjury prosecution, the Court held that it was enough to charge that the -- that the person before whom the perjury committed was authorized. He didn't have to give the authority. He didn't have to specify what the authority was. That was a part -- that was a question of proof. It's not -- it's not a question which has to be in indictment. Now this, as I have said before, is part of the -- we believe that the whole trend of decisions recently which is the indictments are supposed to be extremely simple. They're just supposed to set out the elements of -- of the crime and suggest insufficient detail to prevent a second prosecution and to give the -- the defendant enough information to defend himself. As I've said, there can be no doubt that he had this information here because he was specifically told that at -- at -- by the Committee himself -- by itself.
John M. Harlan II: Why was it made below (Inaudible)?
Bruce J. Terris: I -- it was -- it was raised before trial, Your Honor. We've -- we make contention that it wasn't -- that it wasn't timely.
Earl Warren: Mr. Terris, how -- how was the grand jury informed with the pertinency of -- of these questions?
Bruce J. Terris: Your Honor, I've -- I have no way of knowing -- I assume --
Earl Warren: Doesn't it need to be?
Bruce J. Terris: I would -- yes -- yes, I -- I -- just because we don't have it -- the transcript of the grand jury testimony, I don't know. But I assume that -- yes, indeed, I -- I assume that the hearings were submitted to it and that of course is where we rely on to show pertinency, the subject under inquir -- inquiry and the connective reasoning between the question and the subject.
Earl Warren: Well, suppose the grand jury was thinking of pertinency and in one light and the -- the trial jury was thinking of it in another light.
Bruce J. Terris: That's --
Earl Warren: Would -- would you -- would they be prosecuting him for the same offense that the grand jury was charging?
Bruce J. Terris: Well, You honor, I submit that that's a danger which the -- this Court's -- the trend of this Court's decisions leave possible, the idea that you don't have to specify every detail that has -- that's going to be proved. Now, every time you leave out a detail, this -- this -- it's essential to the proof then there's a possibility that the grand jury guessed wrong just as Your Honor suggest. It found one subject when in -- in fact the Government was going to rely at the trial at another subject. Yes, there is that danger. In the Debrow case, there was a danger that -- that the grand jury there found one basis of authority and it was wrong then another basis of authority was proved by the Government in the trial. But we submit that if Rule 7 is to be taken on its face value and the decisions of this Court interpreting it that that -- that that danger is inevitable. And they say that there is a considerable difference between a charge made in an indictment, important as the -- as the indictment is, an actual trial on the issues of guilt and innocence. I think Your Honor that I -- Your Honors that I leave the issue of willfulness, whether the indictment must -- must charge that the refusal was willful rather than charging that it was unlawful to our brief, I don't think it's a very serious contention and that it is rather technical and is better left to the brief. As to petitioner Grumman's First Amendment contentions, they, like the First Amendment contentions of the other petitioners, we believe are controlled by the decisions of this Court in Barenblatt, Braden and Wilkinson. The interest of the witness in silence is the same as the interest -- the interest of the witnesses in those cases in silence. Petitioner was not pilloried by the Committee, did not appear as a result of indiscriminate dragnet procedures since he was specifically identified in sworn testimony as a member of the Communist Party.
Potter Stewart: What do you take that to mean that requirement if it is one that the Committee must not utilize indiscriminate dragnet procedures on some of the witnesses?
Bruce J. Terris: I would think that they cannot call somebody off the street and say, "Dude, what do you know about communism?"
Potter Stewart: Would they be very likely to do something like that?
Bruce J. Terris: No, no, they wouldn't. But I don't -- the -- the fact that committees unlikely to abuse its power, doesn't mean that the -- that the limitation on its power is not a -- a meaningful one. No, I hope they wouldn't and I don't know cases in which they have done that kind of thing.
Potter Stewart: It's alleged in the Shelton case that they did something fairly close to that.
Bruce J. Terris: It was alleged, Your Honor but I think that -- but the Government's position at least --
Potter Stewart: Yes.
Bruce J. Terris: -- was that the facts were quite different. They would -- that the Government did have information which shows that -- that the person who was subpoenaed to testify was the person who knew something about Communist activities. If a defendant show that the Committee had just called him off the street, I -- I would think that Barenblatt means that the -- the First Amendment has been violated.
Earl Warren: Is that the extent of the dragnet definition?
Bruce J. Terris: Well, I don't want to say that that's the full extent but it seems to me that -- that Barenblatt and the other cases stand for the proposition that -- that this Court and the other federal courts have to presume that Congress of the United States is -- is acting lawfully and that they will not have a full scale inquiry into whether it had justification, probable cause as you will or -- or the --
William J. Brennan, Jr.: You mean there's a -- are -- are you suggesting that the indiscriminate dragnet means that it would violate that principle if you did not have probable cause to subpoena the witness?
Bruce J. Terris: No, I did I -- I tried to answer Mr. Justice Stewart --
William J. Brennan, Jr.: Well, I --
Bruce J. Terris: -- by saying that --
William J. Brennan, Jr.: -- you tru but you haven't --
Bruce J. Terris: To say that --
William J. Brennan, Jr.: -- for me that what's you think.
Bruce J. Terris: The clear cases if they have no information. Let's just assume they say, "We have no information. We think that there's a lot of Communist activity in New York City. We're going to ask the New Yorkers, what do you know about it?"
Potter Stewart: But couldn't that be a legitimate inquiry? All our gallup -- gallup poll, let's say they send their men out to pick up every tenth man, get a pair of sample and has -- each one of them whether or not he's a Communist then they get how many -- how many -- what the percentage of Communist was in New York City.
Bruce J. Terris: As I read the -- the Barenblatt and the -- and of course this is picked up to some extent in Wilkinson and Braden that although that might have reasonableness that this may -- might well be how an investigator would proceed, that the important First Amendment Rights which are being weighed and I think contrary to petitioners that -- that this Court in those three cases gave very great weight to the First Amendment Right and weighing those important rights that -- that there had to be some more basis than the fact that anybody in that stables.
William J. Brennan, Jr.: Well, that's not the point but what's the basis? You have to have probable cause?
Bruce J. Terris: No, I don't -- I don't --
William J. Brennan, Jr.: Well, then but less than problem where you're phrasing?
Bruce J. Terris: I think I'd rather take with the -- the Court's phrasing Your Honor. The Court said in Barenblatt that the witness had not been subpoenaed as a result of, and I quote "indiscriminate dragnet procedures lacking improbable cause for belief that he possessed information which might be helpful to the subcommittee". Now, insofar as -- the way I read that, that means that a reasonable man has to think if the person has information --
William J. Brennan, Jr.: And if I would oppose -- like the opposite of lacking improbable causes but you have probable cause.
Bruce J. Terris: Well, one of the difficulties is that -- that words often mean something -- different words than their -- depending on their context. It seem -- I will be willing to agree with you if you -- if you suggest by that the probable cause means something quite different in this context than for arrest, searches and seizures and -- and the like. They have to have a reasonable ground to think that the person has information of value to me. I don't think they have to have probable cause that he's a Communist. For example, if they have -- if they had reason to believe that he associated with Communist or he was an officer in a -- in a group that was heavily -- that was -- that -- that was heavily unfiltered -- infiltrated by Communist so that he would likely know about his fellow officers or the like. I may say that this issue is not in this case. It is in the Silber case, it is in the Shelton case and a few of the others that were argued in the false. It's not in this case. I assume for the reason that Michael Mignon on this -- before the Committee swore that this defendant was a member of the Communist Party which is the same type of information which this Court relied on in Barenblatt. Actually, in Barenblatt, the Court didn't even rely on the sworn testimony. It relied on the statement of Committee counsel that he had information, the kind of statement which was in the Shelton case.
Hugo L. Black: If you -- unless you can point to some constitutional provisions, I find it difficult to follow the idea that a grand jury or a committee that has full power to investigate this matter can prohibit this from summoning everybody it want to summon. I don't get that. That's frequently done in grand juries in this case.
Bruce J. Terris: I think I -- well, Your Honor, I think that is the basic principle. Now, the way I read Barenblatt, Braden and Wilkinson is that to some very limited extent, the prin -- the principle is limited by the important First Amendment Rights which are involved. But I think if -- I think you're -- you're absolutely right. The basic principle is that a committee can call anybody it wants to. Now, if First Amendment Rights weren't involved here at all, it didn't have any basis, any First Amendment Rights whatsoever, I think they can call anybody right off the street. Now, because the First Amendment Rights are involved, I read those three cases to indicate that part of the balance is whether they've indiscriminately called the witness. But I think that's a very limited exception to the general principle. And I think that's -- and that's -- but I think that's quite clear from the three opinions. Because of the limited time I have left, I -- I would -- I think I would rather turn to the pertinency contentions made by petitioner Grumman since they are essentially the only contentions which he makes which are different from those made in the Yellin case. Now, it's perfectly clear the subject that the question on which petitioner was convicted was in law pertinent to the subject under inquiry. The resolution of the Committee authorizing the hearings, the statement of the Chairman of the subcommittee at the start of the hearings and repeated statements during the hearings said that the subject under inquiry was Communist activity in the communications industry and the question which petitioner refused to answer on its phase considering the fact that petitioner admitted that he was a long time worker in the industry and a member of the American Communications Association was on its phase pertinent to the subject under inquiry. Now, petitioner Grumman's main contention seems to be that there's an exception to this obviously close connection because the question concerned events between 1936 and 1940 and it was therefore remote in time to the subject under inquiry which was current Communist activities in the communications industry. Now, the Government submits that there are three ways that the question which petitioner refused to answer was pertinent in law. First, we submitted -- tested the credibility of our previous witness, Michael Mignon. But though the trial court did not think that this was the purpose of the question, we submit that this is not a determination of fact. And on its phase, the question tested the credibility of Michael Mignon before it explicitly asked petitioner whether Mignon was telling the truth. And the second way that the question -- the information sought whether question would be useful was that if petitioner was a member of the Communist Party in 1940, he could provide information about Communist Party activities at that time and such information would be important, we submit, in understanding the present and future activities of the Communist Party. It is particularly necessary in investigating the Communist Party just largely conspiratorial in secret and in the early 1950's, went almost entirely underground, perhaps more than any other subject to question witnesses about earlier Communist Party activities. And therefore, this Court in the Communist Party case specifically held that evidence of Communist Party activities 20 or even 30 years ago was pertinent to the Party's current activities and character. And the third way that this question sought information which was pertinent was that the question on which petitioner was convicted was a preliminary question. I may say that in Wilkinson, this Court upheld under both -- a tax, both on the grounds of pertinency and the First Amendment, an inquiry which it said was a preliminary question. Committee told petitioner that the purpose of questions as to its membership in the Communist Party was to provide a basis on which to question petitioner concerning current Party activities in the communications industry. Now, turning to the second half of the -- of the pertinency issue whether petitioner was apprised of the subject under inquiry and the pertinency of the questions, petitioner claims that there were -- that the three reasons which I have just given, why the question was not too remote, was not conveyed to him by the Committee at that time that he refused to answer and that therefore, he was not apprised of the pertinency of the questions. He's -- it is important to remember at the start that a congressional committee need only state the connective reasoning between the question and the subject under in quarrel -- inquiry. Surely, the statement need not have the subtlety or the fullness of a brief or argument in the Supreme Court. The fact that the Government has spelled out in greater detail the pertinency of the question, it does not seem to us that the Committee wasn't -- was required to give the page on page of our argument to the witness in that kind of detail. Petitioner could not have failed to understand the pertinency of the questions. The Committee repeatedly told him the subject under inquiry was Communist activities in the communications industry. The question as to whether petitioner was a member of the Communist Party with Michael Mignon was on its phase clearly pertinent to this subject. And this Court so held in the Barrenblatt and in the Wilkinson cases that a question as the Communist Party membership was on its phase pertinent to an investigation of Communist activities. And in addition, the Committee told petitioner that the questions as to his membership in the Communist Party were pertinent because they were intended to ascertain whether petitioner could provide information concerning Communist activities in the communications industry. The Committee did not specifically state why the question was not too remote since petitioner never suggested that the question concerned events which were too remote.
John M. Harlan II: Was this witness represented at that time?
Bruce J. Terris: Oh, yes. And I'm -- I may say Your Honor that the right of the witness to be represented by a counsel and to advise his client and only to advise his client is not just a practice of the Committee, it's in the rules of the Committee and the rules are all in the back of the -- of the Yellin record.
Hugo L. Black: Can he ask questions?
Bruce J. Terris: He may not ask questions. In fact, he -- he cannot engage in public debate with the Committee. He is confined to advising his client as to his rights.
Hugo L. Black: He cannot raise and object to a question.
Bruce J. Terris: No, he -- he is entitled --
Hugo L. Black: He can't --
Bruce J. Terris: -- to whisper in his -- in his --
Hugo L. Black: He can't address the Chairman? Or can he?
Bruce J. Terris: The rules say not but -- but it is so -- as long as the -- the colloquy doesn't go on too long if that the -- the rules seems to be -- not to be honored too well. The initial argument seems to take place and when it gets too long then it -- then -- then it's cut off if the rules say no.
John M. Harlan II: Well, the customary thing is the counsel for petitioner would then apply to --
Bruce J. Terris: Right.
John M. Harlan II: -- (Inaudible) which yourself know or believe which was (Inaudible).
Bruce J. Terris: That's right. That's the normal thing and occasionally gets into -- into open debate. In conclusion Your Honor on this issue and -- and by argument in general, the Committee clearly indicated the petitioner that was interested in current Communist Party activities. The petitioner refused to answer all the questions on current Party activities then the Committee went back to the beginning, to the source of its information. And at that point, it asked petitioner if he had been a communist in effect in 1940. We submit that this question was clearly pertinent. Thank you, Your Honor.