The transcript

Mr. KELLY. On part II of the transcript which we have, which I believe is close to a verbatim transcript from this kinescope, we have the anchorman, Fahey Flynn, saying:

Following that telecast, Northwestern University accused us of staging the party for our news cameras. This WBBM-TV categorically denies. We were invited to film the party for use within our news broadcast. It is the intention of this station to inform the public of any and all newsworthy events.

Mr. Moss. I think in order to make certain, we will have that portion

re-run.

(The film was re-run.)

Announcer: WBBM Television News presented the first part of a two-part series on the use of marihuana on university and college campuses. Following that telecast, Northwestern University accused us of staging a party for our news cameras. This WBBM-TV categorically denies. We were invited to film the party for use within our news broadcast. It is the intention of this station to inform the public of any and all newsworthy events. There was no intention to embarrass Northwestern or any other university.

Mr. Moss. You may discontinue that.

Quite clearly the kinescope does indicate the denial by WBBM. I have a question I would like now to direct to Mr. Ginsburg and Mr. Feldinger.

Did you gentlemen see the kinescope of "Pot Party at a University"?

Mr. FELDINGER. Yes; I did.

Mr. GINSBURG. Yes; I did.

Mr. Moss. Were you present at the party?

Mr. FELDINGER. I refuse to answer on the grounds it may tend to incriminate me.

Mr. GINSBURG. I refuse to answer on the same grounds.

Mr. Moss. The Chair orders and directs that the witnesses respond. The information is required by the subcommittee in the discharge of its duties and I direct you, Mr. Ginsburg, to answer completely and truthfully all of the questions which have been propounded to you in the course of your appearance before this subcommittee.

It is clearly relevant to the jurisdiction of the committee, the committee being a Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce, which is, under the Reorganization Act and by special resolution, charged with the investigations of the administration of the Communications Act, the licensees of the Federal Communications Commission, the administration of the laws under the jurisdiction of the Federal Communications Commission, and of the Federal Trade Commission.

The kinescope which you have just acknowledged having viewed clearly bears upon the qualifications of a licensee for continuing to hold a license, and clearly relates to the competent administration of the laws which the Commission, or the two Commissions are charged with administering.

Again, the Chair directs that you answer completely and truthfully the questions which were just asked of you.

Mr. FELDINGER. Mr. Chairman, I have been advised by counsel not to answer until such a time as I am granted immunity from prosecution.

Mr. Moss. The Chair, with the concurrence of the subcommittee, grants that immunity, and will have the counsel for the committee relate the authorities upon which we rely in granting the immunity, if you so desire. Otherwise we will enter in the record at this point the authorities upon which we rely for the granting of the immunity. (The documents referred to follow :)

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, Washington, D.C., May 31, 1968.

To: Special Subcommittee on Investigations, House of Representatives, Committee on Interstate and Foreign Commerce.

From: American Law Division.

Subject: Some Arguments for the Existence of an Inherent Power in Each House of Congress to Compel the Testimony of Witnesses who Claim the Privilege Against Self-Incrimination.

The scene takes place in one of the impressive, if not awesome, new hearing rooms in the Rayburn House Office Building. A witness, having been duly subpenaed by the Special Subcommittee on Investigations, is being interrogated by the Chairman, all members of the subcommittee being present. The witness is asked a question about work stoppage on and interferences with passengers boarding ocean-liners scheduled to depart for Europe, a matter the subcommittee has been authorized to investigate.

The witness refuses to answer on the ground that his answer might tend to incriminate him. The Chairman confers with the other members of the subcommittee, then informs the witness that they have unanimously agreed to grant him immunity with respect to his testimony. The witness again refuses to answer renewing his claim of the privilege against self-incrimination, whereupon the subcommittee Chairman threatens to have the Sergeant-at-Arms remove him bodily to the floor of the House where he will be cited and imprisoned for contempt until he decides to answer or until the end of the current Congress, whichever is earlier.

The witness asks the Chairman to tell him more about this immunity and the Chairman explains that none of the witness's compelled testimony, nor any of its fruits, may be used, in any manner, in any Federal or State prosecution against him. Upon being reminded that he will be imprisoned in the cellar of the Capitol if he refuses to answer, the witness reluctantly answers the question. There is no doubt that the grant of immunity tendered the witness does not fall within the purview, nor does it meet the conditions, of 18 U.S.C. 3486. Most significantly, the grant does not purport to prohibit prosecutions on matters about which the witness testifies, as does section 3486. Yet even if that section purports to define the only circumstances under which committees of Congress may grant immunity, of any kind, to witnesses, and even if the section be valid, the rationale of the opinion in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964), would seem to lead to the conclusion that this witness was in fact made immune, that is, that neither his testimony, nor its fruits, could be used, in any manner, in either a Federal or State prosecution against him.

To be sure the facts in Murphy were different. The witness there was offered immunity under statutes of both New York and New Jersey. His reason for refusing to testify, despite the grant of immunity under the State laws, was that the Federal authorities might use his testimony as a basis for prosecuting him for a Federal crime. There is the most significant thing our cases have in common. In each, there is no statute granting Federal immunity. And perhaps the most significant thing the Court had to say about that, was to cite with approval the following statement from Adams v. Maryland:

A witness does not need any statute to protect him from the use of selfincriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute, 347 U.S. 179, 181. Murphy, supra, at 75.

The Murphy Court went on to say:

This statement suggests that any testimony elicited under threat of contempt by a government to whom the constituional privilege agains selfincrimination is applicable (at the time of that decision it was deemed applicable only to the Federal government), may not constitutionally be

admitted into evidence against him in any criminal trial conducted by a government to whom the privilege is also applicable. 378 U.S. 52, 75-76 (1964).

In our hypothetical situation, there was testimony elicited under threat of contempt by an arm of the Federal Government, and the witness had reasonable grounds to fear that the threat would be carried out. The ability of the Federal Government to use that testimony, or its fruits, in a subsequent prosecuion should be no more dependent upon whether the subcommittee was acting outside the scope of its statutory or other authority than the ability to use a confession, or its fruits, elicited from a person arrested and interrogated by a policeman, without being given the Miranda warnings, depends upon the scope of the statutory or other authority of the policeman. The Fifth Amendment privilege against self-incrimination operates in the absence of any statute implementing it, or in the presence of any statute derograting from it.

To say that the resulting inadmissibility flows from the subcommittee's power to grant immunity, however, may be no more valid than to say that the inadmissibility of statements elicited by a policeman who ignores the Miranda standards flows from the policeman's power to grant immunity. In each situation, the inadmissibility is one of the latter day consequences found by the Court to flow from governmental interferences with the Fifth Amendment privilege against self-incrimination.

In our hypothetical situation, a different question would arise if the witness persisted in his refusal to testify on the ground that there was no statute authorizing the subcommittee, or even the House of Representatives, to grant him immunity. In a habeas corpus proceeding initiated by a witness imprisoned by the House under its own process or in an action for contempt brought under the provision of 2 U.S.C. 192–194, before ordering him to testify, or be punished for contempt, a court might examine into the source of the subcommittee's authority to tender the offer of immunity. It is clear that the offer is not authorized under the provisions of 18 U.S.C. 3486. Assuming, without examining each of them, that none of the other federal immunity statutes is applicable to this proceeding, the ultimate question is whether there exists in each House of Congress a power to grant immunity which operates independently of any statute. Although we have found no Federal judicial holding on the question, there are some statements, legislative as well as judicial, which tend to support the argument that such a power does exist.

The need of Committees of Congress for information is delineated well in McGrain v. Daugherty, 273 U.S. 135, 175–76 (1927):

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 where the legislative body does not itself possess the information-which not infrequently is true-recourse must be had to others who do possess it. 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 *** id. at 175-76

The means of compulsion are mentioned in the report of the House Committee on the Judiciary accompanying the bill which became 18 U.S.C. 3486:

No one can question the right of Congress to investigate in order to obtain the necessary and proper knowledge upon which it must exercise its constitutional duty and power to legislate. If such knowledge is not forthcoming in the form of voluntary testimony, then Congress has an inherent and necessary power to compel such testimony by subpena and immunity. [Emphasis added] H.R. Rept. No. 2606 (83d Cong. 2d Sess.) 7 (1954) It would be misleading to include that statement if it were not also mentioned that the report, and the legislative history generally, leave little room for doubt that section 3486 was intended to define the only circumstances under which either House or committee could grant immunity, with the possible exception of impeachment proceedings or trials. There can be little doubt, either, that it was thought that a new statute, rather than a simple resoluion of either House, would be necessary in order to enlarge the circumstances or alter the conditions set forth in section 3486. Nevertheless, if the statement be true that there is "an inherent and necessary power to compel such testimony by subpena and immunity" flowing from the "right of Congress to investigate in order to legislate" it may be argued that no statute is needed to support grants of immunity and that either House, by simple reso

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]