Protection of Witnesses; Constitutional Guarantees.
“[T]he Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights.”245 Just as the Constitution places limitations on Congress’s power to legislate, so it limits the power to investigate. This section addresses the limitations the Bill of Rights places on the scope and nature of the congressional power to inquire.
The most extensive amount of litigation in this area has involved the privilege against self-incrimination guaranteed against governmental abridgment by the Fifth Amendment. Observance of the privilege by congressional committees has been so uniform that no court has ever held that it must be observed, though dicta are plentiful.246 Thus, the cases have explored not the issue of the right to rely on the privilege but rather the manner and extent of its application.
There is no prescribed form in which one must plead the privilege. When a witness refused to answer a question about Communist Party affiliations and based his refusal upon the assertion by a prior witness of “the first amendment supplemented by the fifth,” the Court held that he had sufficiently invoked the privilege, at least in the absence of committee inquiry seeking to force him to adopt a more precise stand.247 If the committee suspected that the witness was being purposely vague, in order perhaps to avoid the stigma attached to a forthright claim of the privilege, it should have requested him to state specifically the ground of his refusal to testify. Another witness, who was threatened with prosecution for his Communist activities, could claim the privilege even to some questions the answers to which he might have been able to explain away as unrelated to criminal conduct; if an answer might tend to be incriminatory, the witness is not deprived of the privilege merely because he might have been able to refute inferences of guilt.248 In still another case, the Court held that the committee had not clearly overruled the claim of privilege and directed an answer.249
The privilege against self-incrimination is not available as a defense to an organizational officer who refuses to turn over organization documents and records to an investigating committee.250
In Hutcheson v. United States,251 the Court rejected a challenge to a Senate committee inquiry into union corruption on the part of a witness who was under indictment in state court on charges relating to the same matters about which the committee sought to interrogate him. The witness did not plead his privilege against self-incrimination but contended that, by questioning him about matters that would aid the state prosecutor, the committee had denied him due process. The plurality opinion of the Court rejected his ground for refusing to answer, noting that, if the committee’s public hearings rendered the witness’ state trial unfair, then he could properly raise that issue on review of his state conviction.252
Claims relating to the First Amendment have been frequently asserted and as frequently denied. It is not that the First Amendment is inapplicable to congressional investigations, it is that, under the prevailing Court interpretation, the First Amendment does not bar all legislative restrictions of the rights guaranteed by it.253 “[T]he protections of the First Amendment, unlike a proper claim of the privilege against self-incrimination under the Fifth Amendment, do not afford a witness the right to resist inquiry in all circumstances. Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.”254
Thus, the Court has declined to rule that under the circumstances of the cases investigating committees are precluded from making inquiries simply because the subject area was education255 or because the witnesses at the time they were called were engaged in protected activities such as petitioning Congress to abolish the inquiring committee.256 However, in an earlier case, the Court intimated that it was taking a narrow view of the committee’s authority because a determination that authority existed would raise a serious First Amendment issue.257 And in a state legislative investigating committee case, the majority of the Court held that an inquiry seeking the membership lists of the National Association for the Advancement of Colored People was so lacking in a “nexus” between the organization and the Communist Party that the inquiry infringed the First Amendment.258
Dicta in the Court’s opinions acknowledge that the Fourth Amendment guarantees against unreasonable searches and seizures are applicable to congressional committees.259 The issue would most often arise in the context of subpoenas, inasmuch as that procedure is the usual way by which committees obtain documentary material and inasmuch as Fourth Amendment standards apply to subpoenas as well as to search warrants.260 But there are no cases in which a holding turns on this issue.261
Other constitutional rights of witnesses have been asserted at various times, but without success or even substantial minority support.
- Barenblatt v. United States, 360 U.S. 109, 112 (1959).
- 360 U.S. at 126; Watkins v. United States, 354 U.S. 178, 196 (1957); Quinn v. United States, 349 U.S. 155, 161 (1955).
- Quinn v. United States, 349 U.S. 155 (1955).
- Emspak v. United States, 349 U.S. 190 (1955).
- Bart v. United States, 349 U.S. 219 (1955).
- McPhaul v. United States, 364 U.S. 372 (1960).
- 369 U.S. 599 (1962).
- Justice Harlan wrote the opinion of the Court which Justices Clark and Stewart joined. Justice Brennan concurred solely because the witness had not claimed the privilege against self-incrimination but he would have voted to reverse the conviction had there been a claim. Chief Justice Warren and Justice Douglas dissented on due process grounds. Justices Black, Frankfurter, and White did not participate. At the time of the decision, the Self-incrimination Clause did not restrain the states through the Fourteenth Amendment, so that it was no violation of the clause for either the Federal Government or the states to compel testimony which would incriminate the witness in the other jurisdiction. Cf. United States v. Murdock, 284 U.S. 141 (1931); Knapp v. Schweitzer, 357 U.S. 371 (1958). The Court has since reversed itself, Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964), thus leaving the vitality of Hutcheson doubtful.
- The matter is discussed fully in the section on the First Amendment but a good statement of the balancing rule may be found in Younger v. Harris, 401 U.S. 37, 51 (1971), by Justice Black, supposedly an absolutist on the subject: “Where a statute does not directly abridge free speech, but—while regulating a subject within the State’s power—tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so.”
- Barenblatt v. United States, 360 U.S. 109, 126 (1959).
- Barenblatt v. United States, 360 U.S. 109 (1959).
- Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States, 365 U.S. 431 (1961).
- United States v. Rumely, 345 U.S. 41 (1953).
- Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). See also DeGregory v. Attorney General, 383 U.S. 825 (1966).
- Watkins v. United States, 354 U.S. 178, 188 (1957).
- See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), and cases cited.
- Cf. McPhaul v. United States, 364 U.S. 372 (1960).