lution, may nullify the effect of any statute purporting to limit the power to make such grants. Before developing that argument, however, it is important to examine the nature of the "immunity" which the Constitution requires be given when a witness is compelled to testify after he has claimed the privilege against self-incrimination. Notions of what constitutes due regard for the rights of witnesses have been made more definite by judicial decisions than they were known to be in 1954.

The Congress which enacted 18 U.S.C. 3486 in 1954 was not sure that it could prohibit the use of federally compelled evidence in State prosecutions. This was one of the reasons that it so limited the circumstances under which immunity could be granted. It was concerned lest too many people be convicted in State courts on the basis of testimony compelled by committees of Congress. H.R. Rept. 2606, supra, at 7. The Congress which enacted 18 U.S.C. 3486 thought that the Fifth Amendment, as interpreted by the Court, required a grant of immunity to prohibit prosecution of a witness "on account of any transaction, matter or thing concerning which he is compelled pursuant to and in accordance with the provisions of the law to testify." S. Rept. 153 (83d Cong. 1st Sess.) 2 (1953). That is why they were so concerned about permitting the Attorney General to object when either House or any committee planned to grant immunity. That is why they required the issuance of a court order before immunity was finally granted. At the same time that they feared they might be trapping people into state prosecutions, they feared they might be giving rise to a new series of “immunity baths". Both those fears have now been dispelled. The present rule is most succinctly stated in Murphy v. Waterfront Commission:

and:

We hold that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law, 378 U.S. 52, 77–78,

[W]e hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.18 This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity. Id. at 79. The same rules operate whether the testimony is compelled by a State government or the Federal Government.

The Murphy Court held that, despite the absence of any statute granting them Federal immunity, the witnesses could be compelled to testify in the State proceeding because the Fifth Amendment takes care of federal immunity without a statute. The Court went on to say that:

At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court's decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal prosecution. We have now overruled Feldman and held that the Federal Government may make no such use of the answers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. 378 U.S. 52, 79–80. Despite this holding in Murphy, on which he might reasonably be entitled to rely, the witness offered a grant of immunity by a congressional committee would seem, in the absence of a more specific holding, to be entitled to a reasonable fear that the grant might not be effective. The proposition that either the House or Senate may, by simple resolution, give its committees authority to grant immunity in appropriate cases is so novel that no witness should have to suffer

18 Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence. Id. at 79.

because he does not believe it. He would seem to be entitled to the same consideration given the witness by the Murphy Court.

The reluctance to admit the existence of an inherent power in each House of Congress to grant immunity to a witness who claims his Fifth Amendment privilege against self-incrimination stems principally from the same misunderstanding Congress had in 1954 about the effect of an immunity grant. The misunderstanding is well illustrated in a key statement from Matter of Doyle (Doyle v. Hofstader), 257 N.Y. 244, 262 (1931), Chief Justice Cardozo speaking for the New York Court:

The argument is made that the jurisdiction to grant immunity is an incident of the jurisdiction to punish for contempt. It is no more such an incident for a committee of the Legislature (Legislative Law; Cons. Laws, ch. 32, sec. 4, subd. 5; Kilburn v. Thompson, 103 U.S. 168; People ex rel McDonald v. Kesler, 99 N.Y. 463; Matter of Barnes, 204 N.Y. 108; Sinclair v. United States, 279 U.S. 263; Landis, op. cit., pp. 153, 219) than it is for a court or judge. The punishment for contempt may be imposed for disobedience of a lawful mandate. The power thus to punish may not be used as an excuse for the issue of an unlawful mandate and the remission of the pains and penalties of crimes in consideration of obedience.

If the grant of immunity necessarily required "remission of the pains and penalties of crimes" as does section 3486 when it provides that no witness "shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is so compelled [to testify], after having claimed his privilege against self-incrimination", and as did the joint resolution of the New York Legislature held invalid by In re Doyle, it would be easy to agree with Cardozo, despite the fact that not one of the cases, nor the article he cites, supports his conclusion. The kind of immunity it is here argued that each House has the inherent power to grant and which cannot be taken away from it by statute, is not a grant of immunity from prosecution. Though called a grant of immunity it is really an exclusionary rule prohibiting the use in any Federal or State prosecution of any compelled testimony and the fruits of any compelled testimony; no more, no less. This is what the Fifth Amendment requires. The power to compel testimony despite a claim of privilege with this result is what seems to flow necessarily from the inherent power of each House of Congress to conduct legislative investigations and to punish for contempt witnesses who refuse to testify at such investigations.

There can be no doubt that there exists in each House of Congress an inherent power to investigate for legislative purposes, to compel the attendance of testimony of witnesses, and to punish for contempt, under its own processes, any witness who refuses to testify. The exercise of these powers does not depend upon the existence of a statute. McGrain v. Daugherty, 273 U.S. 135 (1927); Jurney v. McCracken, 294 U.S. 125 (1935).

In McGrain, the Court answered affirmatively the question "whether the Senate or the House of Representatives, both being on the same plane in this regard has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution". More important, perhaps, than its conclusion, to the argument for an inherent power to grant immunity, was the Court's citation with approval of the following remarks of Sen. Crittenden of Kentucky, made during the course of debate on the adoption of a Senate Resolution ordering the commitment of a contumacious witness until he signified that he was ready to testify:

"I come now to a question where the cooperation of the two branches is not necessary. There are some things that the Senate may do. How? According to a mode of its own. Are we to ask the other branch of the Legislature to concede by law to us the power of making such an inquiry as we are now making? Has not each branch the right to make what inquiries and investigation it thinks proper to make for its own action? Undoubtedly. You say we must have a law for it. Can we have a law? Is it not, from the very nature of the case, incidental to you as a Senate, if you, as a Senate, have the power of instituting a inquiry and of proceeding with that inquiry? I have endeavored to show that we have that power. We have a right, in consequence of it, a necessary incidental power, to summon witnesses, if witnesses are necessary. Do we require the concurrence of the other house to that? It is a power of our own. If you have a right to do the thing of your own motion, you must have all powers that are necessary to do it." McGrain, supra, at 164. [emphasis added]

If you have not the power to grant immunity, in the limited sense, then you do not have all the powers that are necessary to compel testimony.

The Court, in McGrain, however, did more than cite Sen. Crittenden with approval. It drew some conclusions of its own, which do more to support than refute the argument for an inherent power to grant immunity. After reviewing the practices of Congress as well as the legislation on the subject of contempt of committees of Congress, including the Act of 1798, and the Act of 1857 which contained an immunity provision on which it commented, the Court "recognize[d] as entirely sound" the proposition that:

[T]he two houses of Congress, in their separate relations, possess not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective *** 273 U.S. 135, 173.

It then drew the conclusion that:

[T]he power of inquiry with process to enforce it—is an essential and proper auxiliary to the legislative function. * * * The Acts of 1798 and 1857, judged by their comprehensive terms, were intended to recognize the existence of this power in both Houses and to enable them to employ it more effectively than before. So when their practice in the matter is appraised according to the circumstances in which it was begun and to those in which it has been continued, it falls nothing short of a practical construction, long` continued, of the constitutional provisions respecting their powers, and therefore should be taken as fixing the meaning of those provisions, if otherwise doubtful. [Italic added] 273 U.S. 135, 174.

It must be emphasized that the witness involved in McGrain did not claim his privilege against self-incrimination and the power to grant immunity was not directly involved. But these statements of the Court are more consistent with the existence of an inherent power to grant immunity than with the absence of it. If the power does exist inherently, then no statute can limit it or give it away. Just as no legislature can limit the right of its successors to exercise their full constitutional powers in enacting whatever laws they may deem proper in matters of public interest, Stone v. Mississippi, 101 U.S. 814 (1880), no House or Senate, even by combining to enact a law, can limit the right of their successors to exercise their full constitutional powers in enacting whatever resolutions they may deem proper in matters respecting their own interests or relating to their. own inherent powers. As the Court said in In Re Chapman:

We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended: *** 166 U.S. 661, 671–72 (1897).

The power, if it does exist, is not one which belongs inherently to a committee. or a subcommittee. The power can be exercised only if it has been granted to the committee or subcommittee by the House or Senate. It might be argued, of course, that a House resolution authorizing a committee and its subcommittees to conduct investigations into certain matters, and in the course of such investigations to summon and interrogate witnesses, is an implied authorization to grant immunity when the testimony is necessary despite a claim of the privilege against self-incrimination. It would be difficult, however, to find any evidence of an intent on the part of the House to confer such authority on its committees and subcommittees. Quaere, however, the intent of the House when it included in H.R. Res. 168, the resolution authorizing the House Committee on Interstate and Foreign Commerce to conduct investigations, the following language:

"For the purposes of such investigations . . . the committee or any subcommittee thereof may . . . require, by subpena or otherwise the attendance and testimony of . witnesses." [emphasis added] 113 Cong. Rec. H1749, H1950 (daily ed. Feb. 27, 1967).

Do the words "or otherwise" include the power to compel testimony by offering a witness who claims his privilege against self-incrimination a guaranty. that neither his testimony nor its fruits may be used in any Federal or State prosecution against him? There is little likelihood that the House intended this result. Yet if the testimony is so compelled, there would seem to be little likelihood that the rule of Murphy, supra, would not operate to make the exclusionary. rule applicable.

VINCENT A. DOYLE, Legislative Attorney,

MEMORANDUM OF LAW-THE POWER OF THE SPECIAL SUBCOMMITTEE ON INVESTIGATIONS TO GRANT IMMUNITY TO WITNESSES IN THE PRESENT INQUIRY INTO WBBM-TV'S PROGRAM "POT PARTY AT A UNIVERSITY"; AND RELEVANT STATUTES ALLEGEDLY IN VIOLATION

SUMMARY

The power of Congress to investigate is a necessary and vital adjunct to its legislative power. For without the ability to elicit facts from every possible source, Congress could not effectively legislate. As the grand inquisitor of the nation with investigatory powers as broad as those of a grand jury, Congress has wide latitude in obtaining information. Its authority to grant immunity to witnesses under compulsion to testify is but one aspect of this sweeping power of inquiry. Such power, constitutionally derived, cannot be limited by the acts of prior Congresses.

The United States Constitution provides that "all legislative powers herein granted shall be vested in a Congress" with power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States." (Article I, Sections 1 and 8.) The House and Senate are distinct chambers, each having their own rules and each independently exercising their own legislative functions. (Article I, Sections 2, 3, 5, and 7.)

Although there is no provision expressly granting power to the Congress to make investigations and exact testimony, "this power, deeply rooted in the American and English institutions, is indeed co-extensive with the power to legislate. Without the power to investigate-including of course the authority to compel testimony either through its own processes or through judicial trial— Congress would be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively." [Quinn v. United States, 349 U.S. 155, 160 (1965).] The leading authority on Congressional investigatory power, McGrain v. Daugherty, 273 U.S. 135 (1926), held that such power was so much a part of the legislative function as to be implied:

"A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and when the legislative body does not itself possess the requisite information-which not infrequently is true-recourse must be had to others who do possess it. .. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two Houses are intended to include this attribute to the end that the function may be effectively exercised." (Id. at 175.) The power of Congressional committees to investigate, moreover, is not limited to matters which may be the subject of legislation but extends to all matters "germane to the proper and intelligent exercise of any constitutional power of Congress or of either House." [Seymour v. United States, 77 F.2d 577 (1935).] And, information relating to activities within the range of Congressional power may be sought not only by Congressional investigation for purposes of appropriate legislation, but also through the continuous supervision of administrative agencies. For example, Congress may use this method in connection with a comprehensive scheme of regulation such as in the case of the Interstate Commerce and Federal Communications Commissions or may employ this informatory process independently. [Electric Bond Co. v. Securities & Exchange Commission, 303 U.S. 419, 437 (1937). See Interstate Commerce Commission v. Brinson, 154 U.S. 447, 474 (1894); Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 211 (1912) and American Telephone & Telegraph Company v. United States, 299 U.S. 232, 235, 237 (1936).] In short, both Houses of Congress possess such auxiliary powers-e.g., the power to conduct investigations in the aid of prospective legislation-as are necessary and appropriate to make their express constitutional powers effective.

In the exercise of this inherent power to conduct investigations, either House may summon persons before it and compel the production of evidence on matters pertinent to the subject of inquiry. "Experience has taught that mere requests for such information often are unavailing and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed." (McGrain, supra at 175.) Therefore, it is axiomatic that Congress cannot permit Fifth Amendment claims to interfere with or frustrate this constitutionally authorized quest for information, but ex necessitate must have unfettered authority to grant immunity in order to elicit testimony from witnesses.

The House of Representatives is "the grand inquest of the Nation," its powers of inquiry as broad as those of a grand jury. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946). (Also see Staff Report prepared for Special Subcommittee on Legislative Oversight by Bernard Schwartz, dated October 17, 1957, 85th Cong., 1st Sess. pp. 25-28.) Since it is incontrovertible that a grand jury may grant immunity in furtherance of its wide investigatory powers (as long as the statute affording said immunity does not leave the party or witness subject to prosecution after he answers the incriminating question put to him), Congress necessarily possesses the same authority. [See Counselman v. Hitchcock, 142 U.S. 47 (1891); Brown v. Walker, 161 U.S. 591 (1895) and Hale v. Henkle, 201 U.S. 43 (1905). Also, People v. Breslin, 306 N.Y. 294, 297 (1954).] Also see United States v. Morton Salt Co., 338 U.S. 632 (1950), for Court's discussion of administrative agency's power of investigation wherein Justice Jackson stated that an administrative agency "has a power of inquisition" which is "analogous to the grand jury." To argue that the broad powers of investigation possessed by an agency of the Congress, such as the Federal Communications Commission or Federal Trade Commission, are not possessed by the Congress itself, which created the agency and gave it power, would be a legal absurditum. An agent may possess as much but not more power than its principal. Conversely, a principal can only grant such powers to an agent as such principal itself possess.

A Congressional Committee's investigation must be within the province of a proper purpose of the Congress. [Kilbourn v. Thompson, 103 U.S. 168 (1880).] The Special Subcommittee on Investigations' basic authority derives from Section 136 of the Legislative Reorganization Act of 1946, 60 Stat. 812:

"LEGISLATIVE OVERSIGHT BY STANDING COMMITTEES

"Sec. 136. To assist the Congress in appraising the administration of the laws and in developing such amendments or related legislation as it may deem necessary, each standing committee of the Senate and the House of Representatives shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the Congress by the agencies in the executive branch of the Government.”

This Statute is implemented by H. Res. 168, 90th Cong., 1st sess., which appears in full on p. 3.

"The present subcommittee is not limited to inquiry into specific instances where prima facie cases of improper agency action are made out. Instead, its function is to make a widespread probe of the administrative agencies concerned. Oversight by the subcommittee is not limited to investigation on a case-to-case basis, but involves, on the contrary, in the words of section 136 of the Legislative Reorganization Act, the exercise of continuous watchfulness of the executive by the agencies concerned of any laws, the subject matter of which is within the jurisdiction of the House Commerce Committee.

"The subcommittee's power of investigation, in other words, is not akin to that vested in the judicial process. It is more analogous to that traditionally inherent in a grand jury, which does not depend upon a case or controversy to get evidence, but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." (Schwartz memo, supra, at 17.)

With such specific and continued oversight jurisdiction over the Federal Communications Commission and Federal Trade Commission, it is self-evident that the legal powers extended to such agencies are also possessed by the Special Subcommittee. In this regard, Section 409 (1) of the Communications Act of 1934, as amended, (47 U.S.C. 409 (1) attached herewith as Exhibit 1) and Section 49 of the Federal Trade Commission Act (15 U.S.C. 49 attached herewith as Exhibit 2) provide that such Agencies have the power to grant witnesses, compelled to testify, immunity from prosecution. The Special Subcommittee's jurisdictional authority over these Congressional Agencies would be thwarted completely were it without, at the very least, similar power to grant immunity. The present inquiry of the Special Subcommittee relates to certain alleged violations of the Communications Act of 1934, as amended, and the Federal Trade Commission Act: namely sections 303 (m) (1) (D) (1), and 315 (a) (with sections 309 (a), 312(a)(2)–(6), 501, and 502 relevant thereto) (attached here97-313-68-3