On Congress' Investigations

United Auto Workers Organizer John Watkins, for eleven years (1942-53) an official of the Farm Equipment Workers Union, knew just what he would and would not tell the House Un-American Activities Committee when he appeared before it on April 29, 1954. A witness of straightforward manner, he testified that he had never been a card-carrying Communist. But he admitted that from 1942 to 1947 he had cooperated with Communists "to such a degree that some persons may honestly believe that I was a member of the party." He agreed to answer all questions about his own participation in Communist affairs. He would even name those whom he believed still to be Communists. But Witness Watkins firmly and flatly drew the line at identifying old associates "who to my best knowledge and belief have long since removed themselves from the Communist movement."

Watkins thought that by asking such questions the committee was tramping on his rights under the First Amendment to the U.S. Constitution ("Congress shall make no law . . . abridging the freedom of speech ... or the right of the people peaceably to assemble''). For his refusal to answer, John Watkins was convicted of contempt of Congress, was fined $500 and given a suspended sentence of a year in jail.

Last week the U.S. Supreme Court reversed the Watkins conviction 6-1 (Whittaker not participating)--and an often emotional opinion by Chief Justice Earl Warren meandered over most of the constitutional landscape while throwing up fences against the power of congressional investigation.

Stigma & Scorn. The Watkins case, wrote Warren, "rests upon fundamental principles of the power of the Congress and the limitations upon that power." The Chief Justice therefore delivered a professorial lecture on parliamentary history, ranging from the 17th century British inquiry involving Popish Plotmonger Titus Oates* ("the infamous rogue") through the historic lawgiving of Sir Edward Coke, James I's Lord Chief Justice, to the U.S. Senate investigation in 1859 of John Brown's seizure of the Harper's Ferry arsenal.

"In the decade following World War II," Warren continued, "there appeared a new kind of congressional inquiry unknown in prior periods of American history. Principally this was the result of the various investigations into the threat of subversion of the U.S. Government . . . This new phase of legislative inquiry involved a broad-scale intrusion into the lives and affairs of private citizens."

Wrote Warren: "The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of governmental interference. And when those forced revelations concern matters that are unorthodox, unpopular, or even hateful to the general public, the reaction in the life of the witness may be disastrous . . . Those who are identified by witnesses and thereby placed in the same glare of publicity are equally subject to public stigma, scorn and obloquy."

Rights & Powers. The Fifth Amendment privilege against self-incrimination was not raised by either side as an issue in the Watkins case, but, just as if it were, Chief Justice Warren let it be known that any challenge to Watkins' right to invoke that privilege "could not have prevailed" before the Supreme Court. Then he began balancing the First Amendment freedoms v. the investigatory power of Congress, and found it far from an even balance.

To be sure, in order to legislate, Congress has to investigate. But the power is sharply limited: "No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to 'punish' those investigated are indefensible . . . We have no doubt that there is no congressional power to expose for the sake of exposure."

I's & T's. Warren left no doubt that he and his court majority thought the Un-American Activities Committee ("it conceived of its task in the grand view of its name") had violated Watkins' First Amendment rights. But just as Warren seemed ready to make a ringing ruling on that basis, he veered back to the Fifth Amendment--this time to its clause requiring that "No person shall be ... deprived of life, liberty or property without due process of law."

When a witness faces a congressional committee, said the Chief Justice, he has a right to know precisely what subject of possible legislation is being investigated, so that he himself may judge which questions are pertinent and which are not. "That knowledge must be available with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense." But because the House Un-American Activities Committee operates under such vague auspices ("Who," asked Warren, "can define the meaning of 'un-American'?"), Witness Watkins was "not accorded a fair opportunity to determine whether he was within his rights in refusing to answer." Conclusion: "His conviction is necessarily invalid under the Due Process Clause." With that ruling went a gratuitous warning to Congress: in the future dot all the i's and cross all the t's in spelling out committee jurisdiction and legislative purpose with "particularity."

Tooth & Toenail. Lone dissenting Justice Tom Clark went tooth and toenail after the Supreme Court majority's "mischievous curbing of the informing function of the Congress." Cried he: "The majority has substituted the judiciary as the grand inquisitor and supervisor of congressional investigations. It has never been so." Clark attacked the majority both on its First Amendment conclusions and its due-process ruling. Watkins' own First Amendment rights, argued Clark, were not even involved in the questions he refused to answer before the House committee. Explained Clark: "Watkins was asked if he knew named individuals and whether they were Communists. He refused to answer on the ground that his rights were being abridged. What he was actually seeking to do was to protect his former associates, not himself, from embarrassment. It is settled that one cannot invoke the constitutional rights of another."

As for Warren's idea that due-process rights are the same in a congressional investigation as in a criminal trial, Clark said flatly: "I know of no such claim ever being made before. Such a requirement has never been thought applicable to investigations and is wholly out of place when related to the informing function of the Congress. The Congress does not have the facts at the time of the investigation, for it is the facts that are being sought. In a criminal trial the investigation has been completed and all of the facts are at hand."

Then, in a passim bit of fingerpointing, Justice Clark cited the views of Justices Felix Frankfurter and Hugo Black (see box) back when Frankfurter was a professor of law at Harvard, Black was a Senate investigator, and both were hell-bent to defend Congress' right to dig deep into Republican governmental corruption and the private affairs of big businessmen. In fact, said Tom Clark, far from being what Warren had called "a new kind of congressional inquiry," the investigations of subversion in the 1940s and 1950s were much like the investigations of big business in the 1920s and 1930s. "Only the setting is different," said Clark. "It Involves new faces and new issues brought about by new situations which the Congress feels it is necessary to control in the public interest."

On grounds generally following the Watkins pattern, the Supreme Court, by a 6-to-2 vote (with Clark and Burton dissenting, Justice Whittaker not participating), reversed the 1954 contempt conviction of University of New Hampshire sometime Lecturer Paul Sweezy. Because the Sweezy case cut across a state's right to investigate, it caused more pain to sensitive states-righters than the Watkins case.

While admitting that he was a "classical Marxist," Sweezy refused to answer some questions (e.g., had he advocated Marxism at a university lecture?) put to him by the New Hampshire attorney general acting on authorization from the state legislature. The New Hampshire Supreme Court upheld Sweezy's conviction for contempt on grounds that 1) "there exists a potential menace from those who would overthrow the Government by force and violence," and 2) "the need for the legislature to be informed on so elemental a subject as the self-preservation of Government outweighed the deprivation of constitutional rights that occurred in the process."

The U.S. Supreme Court, in Chief Justice Warren's opinion, held: "We do not now conceive of any circumstance wherein a state interest would justify infringement of rights in these fields." Wrote Warren in a 300-word aside on academic freedom: to "impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation."

*Anabaptist-turned-Anglican Rector Gates, the 17th century's Harvey Matusow, infiltrated Catholic circles, spun a yarn about a Papist plot aimed at the assassination of Charles II, was exposed as a liar after a hue and cry both in and out of Parliament, was whipped from Aldgate to Newgate to Tyburn for his pains--and to everyone's dismay, lived to lie another day.

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