WHEN SEN. Joseph McCarthy arraigned General Zwicker before his Committee and branded him unfit to wear the uniform of the United States, he did more than humiliate a lifelong soldier and wartime hero. He brought to a dramatic climax a long-developing dispute over the limits of Congressional power, forcing a timid President and an uneasy Senate to face these questions:
Has Congress an unlimited right of investigation?
Is Congressional investigation subject to any standards of procedure?
Who is responsible for setting and enforcing these standards?
Will Congress accept its responsibilities?
President Eisenhower and his advisers considered these questions in the 10 days that followed McCarthy’s castigation of General Zwicker. On March 3, in the course of a prepared statement, the President presented his answers:
First: Congress has the right “to investigate into every phase of our public operations?”;
Second: Orderly government requires that members of Congress and of the Executive approach each other “in atmosphere of mutual respect”;
Third: “Obviously it is the responsibility of Congress to see that its procedures are proper and fair….” “The Republican members of the Congress [should] assume the primary responsibility in this respect since they are the majority party and therefore control the committees”;
Fourth: “Fair play” is the American way, and “we can be certain that [Congress will respond to America’s convictions and beliefs in this regard.” In fact, the President added, “Sen. William Knowland has reported to me that effective steps are being taken by the Republican leadership to set up codes of fair procedures.”
So the President proclaimed the rule of Fair Play, absolved himself as Chief Executive and party leader for its observance on Capitol Hill and promised the nation that self-enforcement by Congress was already assured.
In this the Congress demurred. “Everybody gets fair play before my Committee,” said Sen. William Jenner. Those whom I choose to characterize as Communists don’t deserve Fair Play was, in effect Senator McCarthy’s reply. Congress has no power to enforce Fair Play on its committees was the point made by President Eisenhower’s Majority Leader Senator Knowland.
So McCarthy is left free to go his way, the citizen to look beyond the President, and to search out answers for himself.
The Power to Investigate
“All of us,” said President Eisenhower, “recognize…the Congressional right to inquire and investigate into every phrase of our public operations.” Obviously that much is grated. Sen. J.W. Fulbright argues: “There can be no Congress without the free and unrestricted power to investigate.”
But all rights are relative and limited where they conflict with other rights. The question is not Does Congress have the right to investigate but: What are the limits of the power of Congressional investigation? and How are these limits to be upheld? By affirming the power of investigation, saying nothing about the limitations upon it, President Eisenhower begs the question and chooses to ignore a vital struggle that has developed, with growing intensity over the past 75 years.
The power of Congress to investigate is an implied power in the Constitution. Fully utilizing it, Congress asserted that it implied in turn the further power to compel witnesses to provide information on a wide range of issues, and to punish those who refused. For one hundred years, these powers were not restricted by judicial supervision and control. Then, in 1881, the Supreme Court sharply narrowed the scope of investigation in Kilbourn v. Thompson. Hallet Kilbourn was the London manager of a real-estate pool organized by the bank of Jay Cooke and Company. Public funds deposited in the bank were invested in the pool, and were lost as the result of improvidence when the firm went bankrupt. When Congress sought to inquire into the fate of the public funds, Kilbourn refused to testify. He was arrested and jailed in Washington for contempt of Congress and he appealed to the United States Supreme Court. The Court, one of the strongest in American history, returned a unanimous opinion attacking the action of Congress. It held that the resolution authorizing the inquiry contained:
No hint of any investigation of final action by Congress on the subject….Was it to be simply a fruitless investigation into the personal affairs of individuals? If so, the House of Representatives had no more power or authority in the matter than any other equal number of gentlemen interested for the government.
So the Court restricted the power of Congress to investigate and to punish witnesses. It required of all investigations a clear and precise Constitutional purpose, and cast doubt on the notion that the power to punish witnesses for contempt was required for the sake of legislation.
Under these limitations Congress continued its investigations, informing itself, uncovering incompetence, and also harassing President Wilson for the sake of harassment when control of Congress passed to the Republican Party in 1918. Bat the great days of investigation came when government passed from Wilson’s hand:
When the Harding Administration began the air was fall of indication of thee sinister influences that were to prevail, and were prevailing in the conduct of some of the vital departments of the government. Around Fall and Daugherty suspicions steadily clustered. Washington was thick with talk and not the talk of irresponsibles. As time went on the intimations became more and more outspoken; but every influence of authority, of powerful social connections, of the press, the whole milieu of officialdom in Washington was on the side of those in power and against disclosures and truth-telling. More than that when things could no longer be hemmed and an Investigation of Daugherty’s administration was altered upon by a House Committee, the forces of wrong-doing rendered such an investigation abortive and futile. . . .
For nearly two years the effort to uncover wrong-doing in the disposal of our public domain were hampered be every conceivable obstruction on the part of those in office and those influential out of office, including members of the President’s official entourage and including perjury before the a Senate Committee on the part of one of the closest friends of the late President. And one one close terms with the present Executive….
Governmental machinery, prestige, wealth, agencies of publicity—all were for covering up things. Never in the history of this country have Congressional investigators had to contend with such powerful odds; never have they so quickly revealed wrong-doing, incompetence and low public standard on such a wide scale, and never have such investigations resulted so effectively in compelling correction through the dismissal of derelict officials.
These paragraphs are from an article entitled, “Hands off the Investigations,” The author was Felix Frankfurter, and it was published in the New Republic on May 21, 1924. It was a reply to the barrage of conservative criticism, led by the bar associations and the most respectable authorities, and directed to the prevention in the future of such punishment as Senators Walsh and Wheeler had inflicted on the Republication Part. Frederick Coudert (father of the present Republican Congressman from New York City) demanded curbs upon the Congressional investigations. John Wigmore deplored the “dunghill” of Congressional inquiries. Frankfurter in reply held:
The procedure of Congressional investigation should remain as it is. No limitation should be imposed by Congressional legislation or standing rules….The safeguards against abuse and folly are to be looked for in the lores of responsibility which are operating from within Congress and are generated from without.
It was this broad position that a conservative Supreme Court upheld, and in so doing altered the 1881 Court’s decision. When Mally Daugherty, the brother of Harding’s Attorney-General, refused to testify or to grant a Congressional Committee access to the records of his bank, he was arrested for contempt and the Court upheld the arrest. Brushing aside Daugherty’s pleas based on the Kilbourn case, Mr. Justice Van Devanter for the Court that: “The power of inquiry, with powers to enforce it—is an essential and appropriate auxiliary to the legislative function.”
Van Devanter was careful to add that the powers of Congressional inquiry were still strictly limited. Upholding the decision in the Kilbourn case he argued: “Neither house is invested with general powers to inquire into private affairs and compel disclosures.” He added, “a witness rightfully may refuse to answer when bounds of the power are exceeded or the questions are not pertinent to the matter under inquiry.” The courts, however, effectively retired from the battlefield. “These powers,” Professor Nelson McGeary recalls, “have been employed very little by courts in recent years to restrict Congressional investigating committees.”
McGeary continues: “That the courts are now holding only loose rein on Congressional investigation is nowhere more clearly demonstrated than in the opinion by Justice Holtzoff in United States v. Bryan.” In this case Helen R. Bryan and three other officials of the Joint Anti-Fascist Refugee Committee were subpoenaed by the House Committee on Un-American Activities. They were ordered to produce the the records of their receipts and their correspondence with Spanish refugees abroad. They refused and they were arrested for contempt of Congress. Justice Holtzoff condoned this action, holding:
If the subject under scrutiny may have any possible relevancy and materiality no matter how remote to some possible legislation it is within the power of Congress to investigate the matter. Moreover the relevancy and materiality of the subject matter must be presumed. The burden is on one who maintains the contrary to establish his contention.
So all effective review was overthrown by Justice Holtzoff. In turn his view was sustained by the Court of Appeals of the District of Columbia and at least sanctioned by the Supreme Court in refusing to review the case when one of the defendants, Edwards Barsky, appealed. The Court of Appeals upheld the conviction of Barsky affirming among other points that a Congressional Committee could require an individual to answer whether he was a Communist, or a believer in Communism. It washed the Court’s hands of authority over the conduct of Congress, “so long as the bounds of power and pertinency were not exceeded.”
To this opinion, Judge Henry Edgerton entered a historic dissent. He held: “In my opinion the House Committee’s investigation abridges freedom of speech and punishment without trial; and the statute the appellants are convicted of violating provides no ascertainable standards of guilt. It follows that the convictions should be reversed on Constitutional grounds.”
Judge Edgerton reasoned that the investigative power of Congress can be no broader than the extreme limits of its legislative power. Both are limited in matters affecting sppeach and press, by the clear and present danger test. The First Amendment, Judge Edgerton noted, forbids Congress to make any law “abridging the freedom of speech or of the press.” The courts had cited the First Amendment in restricting the express power of Congress to levy taxes; how could they deny its authority to restrict the power of Congress to investigate, which is only an implied power. “Investigation in general,” Judge Edgerton noted “and this investigation in particular, is not more necessary than taxation….The power of investigation, like the power of taxation stops short of restricting the Freedoms protected by the First Amendment.”
Plainly, Judge Edgerton argued, the committee’s investigation did restrict freedom of speech. (This much, he noted, was not denied by the prosecutor in the Barsky case, and was conceded in the majority opinion.) To the argument that this restriction was justified by the need for enlightenment on legislation to counter the Communist conspiracy, he answered “civil liberated may not be abridged in order to determine whether they should be abridged.”
MEANWHILE the majority view has prevailed that the bound of “power and pertinency” alone set the limits of Congressional inquiry, together with the presumption that what Congressional investigation hold pertinent is pertinent. “The ‘bounds of power and pertinency’ are so indistinct,” comments Professor McGeary, “that Congressional committees can now conduct investigations with little fear that the courts will throw a tight harness over them….A committee which wishes…will get the information it seeks or will have the satisfaction of seeing the recalcitrant witness punished.”
Granted this leeway by the courts, committees of Congress have steadily pressed outward “the bounds of power and pertinency.” Judge Edgerton noted in his dissent that among the criteria cited by the Committee on Un-American Activities as pertinent were:
“Opposition to the ‘American system of checks and balances,’ opposition to the protection of property rights, belief in dictatorship, opposition to the Franco Government of Spain, opposition to General MacArthur, advocacy of a world states, advocacy of the dissolution of the British Empire, criticism of members of Congress and criticism of the Committee on Un-American Activities.”
Senator McCarthy in turn has pressed still further the outward limits of “the bounds of power and pertinency.” In his investigation of James Wechsler, editor of the New York Post, no pertinency to legislation was even suggested by the Senator; the purpose plainly was to discredit a newspaper critical of McCarthyism. No action followed the Wechsler case. But on July 14, 1953, Harvey O’Connor was subpoenaed by the McCarthy Committee. O’Connor was asked by McCarthy whether he had been a member of the Communist Party. The transcript follows:
Mr. O’CONNOR: “Under the First Amendment my writings, my books and my political opinions are of no legitimate concern to this Committee. If I have violated any laws in the writings I have written, that is a proper concern for the law enforcement agencies and not the proper concern for this committee.”
The pertinency of his inquiry was then stated by the Senator in this way:
McCARTHY: “You are here this morning because your writings were purchased by the old Acheson State Department….Now…when the royalties of your books paid by the taxpayers, go into the Communist coffers, then this Committee is concerned with that….”
On this basis the hearing continued.
McCARTHY: “For that reason I again ask you the question: at the time you wrote the books which were purchased with taxpayer’s money…were you a member of the Communist conspiracy?”
MR. O’Connor: “I object to the question….”
Mr. O’Connor was subsequently cited for contempt; his case is now awaiting trial.
MEANWHILE the obvious abuse by Congressional committees of the leeway granted to them by the courts has caused a reversal of recent legal trends. When Edward Rumely, Secretary of the Committee for Constitutional Government, in 1950, was cited for contempt for refusing to submit his records to the House Committee on Lobbying Activities, he appealed the citation. His rights were denied in a lower court, and upheld in the Court of Appeals. The case reached the Supreme Court, and Justice Frankfurter affirmed the Court of Appeals ruling. He followed the dictum of Chief Justice Hughes that, “If a serious doubt of constitutionality is raised, it is a cardinal principle that this court will first ascertain whether a construction of the statute is fairly probable by which the question may be avoided.” Accordingly, Justice Frankfurter narrowly interpreted the purposes the resolution creating the Committee and affirmed that the citation of Rumely was not required by these purposes. He did add, in a highly significant passage, that “doubts of constitutionality” would have been raised had Congress intended to give the Committee “the power to inquire into all efforts of private individuals to influence public opinion through books and periodicals, however remote the radiations of influence which they may exert upon the ultimate legislative process.” Brushing aside Frankfurter’s fine distinctions, Justice Douglas, in a concurring opinion joined in by Justice Black, affirmed that Congress plainly did confer these powers on the Committee on Lobbying Activities and that the powers were unconstitutional.
More recently, the citation of Julius Emspak for contempt has been argued before the Supreme Court. Emspak, an official of the Communist-dominated United Electrical Workers, cited the First Amendment supported by the Fifth Amendment in refusing to answer 64 questions posed by Congressional investigators concerning his associations and beliefs. The Acting Solicitor-General, Robert L. Stein, argued before the Court that any question, however personal, fell within the “the bounds of power and pertinency” and could be posed by a Congressional committee. The view was challenged by Justice Black who asked the Solicitor-General whether a Congressional committee could properly demand of a witness whether or not he believed in the Ascension. Eventually Stein conceded that his position was untenable.
In turn, Justice Frankfurter observed that he had read over and reflected upon the historic case of Kilbourn v. Thompson and that the opinion affirmed then by a strong and unanimous court seemed increasingly impressive in the light of recent trends.
The direction of future decisions was pointed to by the recent opinion of Judge Biggs of the Third Court of Appeals who placed the burden of proving pertinency back on the Congressional committees. He held in US v. Orman: “The individual must rely for the protection of his privacy upon the requirements of pertinency,” but he added at one: “Where a Congressional investigation enters a field to which the First Amendment is applicable, courts will be particularly careful to check unlawful lines of inquiry.”
In addition, of course, the accumulation in the executive of dossiers on the private beliefs and personal affairs of millions of Americans in and out of government compels the executive to set rigid limits on the rights of Congress to obtain classified documents in the course of its investigations.
The Procedure of Investigation
If an American is brought before a court today, his status is assured by the Bill of Rights. The First Amendment protects his right to privacy, the Fourth, his protection against unwarranted searches and seizures. The Fifth Amendment guards against self-incrimination, providing that, “No person…shall be compelled in any criminal case to be witness against himself,” and this in turn has been recognized as applying to witnesses in civil and even in non-judicial proceeding. The Sixth Amendment further provides, “In all criminal prosecution the accused shall enjoy the right…to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
In contrast, a witness before a Congressional committee is largely shorn of these rights and deprived of his status in court.
His freedom from unreasonable search and seizure depends on the committee’s jurisdiction.
His freedom from self-incrimination may be obtained at the price of being branded and widely judged to be a “Fifth Amendment Communist.”
His right to counsel is a privilege only, granted or withheld by decision of the committee.
His right to cross-examine his accusers is a privilege rarely granted and usually denied.
His right to submit evidence on his own behalf is a privilege sometimes granted, more than once denied with subsequent approval by the courts.
The protection afforded defendants by the Bill of Rights is denied witnesses before Congressional committees. The reason is that these witnesses are not thought to be defendants at all. The Bill of Rights is associated with criminal proceedings but Congressional committees are supposed to be in the business of obtaining information without trespassing on ground reserved by the Constitution for our courts.
Nonetheless Congressional committees have trespassed, constituting themselves de facto courts and administering their own kind of punishment without the restraint of due process of law. (Is man not “punished” who fired from his job after appearing before a committee?) An early leader of the House Committee on Un-American Activities, Rep. John Rankin, referred to the committee as a “grand jury” in which “defense council was denied.” Senator McCarthy tends always to conduct a trial rather than an investigation, and one in which he plays the dual role of prosecutor and judge—abhorred throughout the history of Anglo-American jurisprudence. In arguing that the investigation of the House Committee on Un-American Activities infringed the Constitution, Judge Edgerton noted “the Committee and its members have repeatedly said ‘that its main purpose is to do by exposure and publicity what it believes may not validly be done by legislation’.” More recently Senator McCarthy has held hearings, such as the hearing on Communist infiltration in the public schools of New York for the express and improper purpose of bringing pressure to bear on local authorities who are responsible to state government under the powers reserved to the states and expressed in state legislation.
Sen. Wayne More declares: “We have reached a point in the conducting of Senate investigations which go into the question of innocence or guilt of persons under investigation that it is a legal fiction to argue that in fact such persons are not standing trial.” Frequently, Morse adds, Congressional committees are conducting trials “which violate the spirit and intent of the Bill of Rights.” It is an effort to adjust to these transgressions that the movement has arisen to extend to Congressional witnesses the rights granted defendants in court trials.
First among these rights, in the opinion of Senator Morse is the right to counsel. Without counsel, he holds, a witness in current investigations “is the victim of inquisitions or a star chamber proceeding.”
The second right, in Senator Morse’s view, is “the right to be advised in advance of the subject matter to be taken up at the hearing.” He adds “that right does not exist at the present time”; even as a privilege it is seldom granted.
The third right advocated by Senator Morse is “the right to testify in one’s own behalf. He adds,
That means the precious right to submit one’s case…in an orderly way, without being badgered our abused in the attempt to do so. It means an orderly procedure whereby a witness takes the stand, after the case against him has been presented, submits his reply under orderly procedure, and then subjects himself to cross examination.
[Commenting on the criticism that this procedure would take too long, Morse notes:]
If what really is sought in investigations is the truth—and if the truth is not being sought there is no right to conduct such investigations—it will be obtained in a shorter period of time by following these well recognized rules of procedure under the judicial process rather than by using the Kangaroo court methods which have come to identify too many investigations.
The fourth right advocated by Senator Morse is “the right to be advised of adverse testimony before it is released to the public.” He explains,
“This procedural safeguard would bring an end to the anonymous smear material which is not even signed but which is too frequently accepted into the record of our committees. Very frequently, not even members of the committees know its source.”
In addition Senator Morse believes that the Senate should recognize three additional rights of witnesses:
The right to have stenographic record of testimony.
The right to write a brief and a rebuttal brief.
The right, in the case of contempt citation, to appeal to the courts for a review as to whether or not the procedural rights of the defendant were violated in the course of investigation.
Lastly, Senator Morse proposes that majority of the members of any committee or subcommittee shall be present when a witness takes the stand. “That little guaranty,” he notes “would have prevented the Zwicker case. It would eliminate a surprising amount of public criticism these days about some of the investigations which have been conducted in this body over the past few years.
Where the Responsibility Lies
“Obviously,” said President Eisenhower, “it is the responsibility of Congress to see to it that its procedures are proper and fair.” That certainly is true. But what does it mean? To Senator Morse it means that the Senate itself must enact rules of procedure that are binding on all committees that it creates. To other Senators it means that the Senate shall write rules of procedure for every committee to which it makes appropriations to carry on investigations. To Senator Knowland it means that each committee is permitted to pass its own rules. To Senator McCarthy it means nothing at all. Yet McCarthy acts in the name of the entire of Senate when he humiliates General Zwicker; his committee is the Senate’s child, and the Senate is responsible for its behavior. Eighty-five Senators voted for the appropriations sought by Senator McCarthy on the ground that his committee’s work was in the line of the Senate’s proper function. With this vote went the undeniable responsibility to insure that the McCarthy Committee acts in accordance with procedures that the Senate can support.
President Eisenhower in some form recognizes this responsibility. He adds that it is the special responsibility of the Republican majority. Here while his instinct is constructive, his proposal to refer the matter to the Republican Policy Committee, is in Senator Morse’s view “not only inadequate but ill-advised.” Morse notes: “it is not good policy for the Policy Committee to formulate legislation, and still less is it its function to prescribe rules for the conduct of Senate committees….Indeed, one of the very abuses that requires cure is the conduct of committees by one party ‘without consultation’ with members of the minority.”
Will Congress Reform Itself?
President Eisenhower passes on to the nation the welcome news that “effective steps are being taken by the Republican leadership to set up codes of fair procedure.” Are they to be mandatory or permissive> How are they to be enforced? No further clues are offered by the President. He affirms grandly that “the conscience of America” requires both proper vigilance and fair play and “we can be certain that [Congress] will respond to America’s convictions in this regard.”
How can we be certain? The record indicates, on the contrary, that we if anything can be certain that without outside pressure Congress will not reform itself.
The record is not altogether barren. Several Congressional committees have voluntarily adopted codes of fair procedure in recent years. The House Committee on Expenditures in the Executive Department made public in 1948 17 excellent rules which it observed. Evidence was kept within the bounds of pertinency, witnesses were permitted to testify on their own behalf, and those defamed were invited to reply. Similar rules were adopted by the Senate Preparedness Committee, the Kefauver Committee on Organized Crime, the Committee investigating the Bureau of Internal Revenue. The Senate Investigations Subcommittee under Senator Ferguson adopted rules in 1949 that restricted its powers. That is the Committee over which McCarthy presides today.
But Congress has refused to formalize these gains into law. When, for example, the courts rule that the arrest of Harold Christoffel for contempt of Congress was illegal because one Committee member did not constitute a quorum, the response of some Congressional committees was to amend their rules to make one member a quorum. The great majority of Congressional committees follow no rules. The measures for mandatory rules advanced by reformers have consistently been buried in the Rules Committees.
Has the President really the right to assume that more can be expected from his party’s present efforts? The Republican Policy Committee that the President referred to met on March 4 with the Republican chairmen of 10 committees. It rule out dictation; it ruled out a uniform code of rules. Sen. William Jenner accurately summarized the attention accorded its deliberations: “Much ado about nothing.”
Public opinion can compel Congress to act. And any action that restricts the transgressor, even the voluntary action of some committee members in insisting on advance notice of sessions called by Senator McCarthy is well worth while. Obviously Congressional inquiries will continue to be broad in scope. Obviously the time is long overdue for Congress to recognize the grave problems these investigations present is their threat to traditional rights. Procedures most certainly are needed—established permanently, to place the status of witnesses beyond the whims of passing, ambitious men. The rules need not be uniform. But no permanent committee and above all, none that inquiries into matters covered by the First Amendment can safely avoid coded fair procedures.
Yet, to argue that they offer no real assurances against the spread of McCarthyism is surely wrong. There is much to be said for the views of Senator Knowland and Senator Ferguson on opposing uniform and mandatory rules. Even if such rules are adopted, their enforcement is well nigh impossible. If a Senator violates the rule—for instance, where is the right of appeal? To the Rules Committee, says the American Jewish Congress; to the courts, says Senator Morse. But the Rules Committee will not and the courts cannot deal with the Senator whose whole life and character is a transgression against decency. There is basic truth in the words of Senator Fulbright that “The power to investigate is wielded by individuals not by institutions.” It follows that no attention given to procedure should divert this nation from the essential fact that the investigative power of Congress will be misused as long as it is in the hands of men whose primary interest is personal publicity and political advancement.
The responsibility for fair procedures as the President notes, belongs to the Congress. But procedure is not the decency belongs first with the head of their Party, and ultimately with the voters who raise them to power. Democracy, Senator Fulbright argued recently “has no apparatus to deal with the boor, the liar and the anti-democrat.” Its only recourse is to replace them with responsible and decent men. Meanwhile, no Senator is going to curb McCarthy when his party leader refuses to lead. McCarthy will pursue his course in one way or another with all the power he now possesses until the people of America insist on Ike or Joe instead of Ike and Joe.
This article appeared in the March 15, 1954 issue of the magazine.