Bart v. United States/Dissent Reed

Mr. Justice REED, with whom Mr. Justice MINTON joins, dissenting.

This case is controlled entirely by the rule enunciated by the majority in the second ground for the decision in Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668. We shall not here repeat our comments made regarding that rule and its application which are set out in our dissent in the Quinn and Emspak cases. But we cannot agree that under the Quinn rule the petitioner here was not sufficiently apprised of the disposition of his Fifth Amendment and pertinency objections for him to be held guilty of violating § 192. For us the record establishes, as it did for the two courts below, that the petitioner knew that the grounds for his objections were not accepted by the committee; that the committee required him to answer; that he willfully refused to answer. As the majority stated the rule in Quinn, 75 S.Ct. p. 677, 'the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee's ruling, he has no cause to complain.' Under this rule we think that the extract from the record set out below places this petitioner in the status of one who 'has no cause to complain.'

'Mr. Walter: Did you ever hold any positions other than     positions with newspapers?

'Mr. Bart: I did.

'Mr. Walter: What were they?

'Mr. Bart: I was organizer and head of the Communist Party at     different times, in different years.

'Mr. Walter: Where?

'Mr. Bart: In Illinois and Pennsylvania, among many.

'Mr. Tavenner: The Daily Worker of March 28, 1936, shows you     to have been a section organizer for the Communist Party in      Ohio. That is correct, is it not?

'Mr. Bart: Most likely.

'Mr. Tavenner: Well, you know whether you were a section     organizer for the Communist Party in Ohio, do you not?

'Mr. Bart: I do not know the exact period of time you     mentioned. It is 14 years ago.

'Mr. Tavenner: Who were the other officials of the Ohio     section of the Communist Party during the period of time you were organizer there? (Count 8, emphasis     supplied.)

'Mr. Bart: I object to this question. I will not answer it,     standing on my rights in accordance with Article V of the      Constitution, and furthermore I protest because this      committee has asked this question of numerous people and has      infringed upon their rights as American citizens.

'Mr. Tavenner: I think, Mr. Bart, I should point out that     your testimony relating to other people who were associated      with you at that time could not in any way incriminate you      under the Fifth Amendment.

'Mr. Unger: I should like to correct you, Mr. Tavenner.

'Mr. Walter: You advise your client.

'Mr. Tavenner: You have told us you were a section organizer     for the Communist Party in Ohio, and my question now is, who      were the officials who worked with you in that work, that is,      officials of the Ohio section of the Communist Party?

'Mr. Unger: Permit me to advise my client that Mr. Tavenner,     counsel, is in error in his interpretation of the      Constitution so far as the Fifth Amendment is concerned, and      that Mr. Bart, the witness, is entirely correct in his      interpretation of the Constitution, and has a right to assert      that this committee has no right-no right, let me make it      plain-

'Mr. Walter: Under our procedure the attorney is permitted to     advise his client and then the client, the witness, answers      the question. You may advise your client.

'Mr. Unger: As he has stated in his previous answer, he is     not required to testify against himself.

'Mr. Bart: I stand on the advice of my counsel. I am not  required to testify against myself, and in accordance   with Article V of the Constitution I will not answer the   question.

'Mr. Tavenner: I was not asking you to testify against     yourself. I was asking you to state the names of other     persons associated with you.

'Mr. Bart: I consider this an attempt on the part of the     committee to use this against myself as well as against      others, as it has on many previous occasions.

'Mr. Walter: And therefore you refuse to answer?

'Mr. Bart: I refuse to answer.'

The colloquy set out above pertains only to count 8. We think the record also shows that the committee rejected the pertinency objections on the other four questions which constitute the other four counts and therefore petitioner willfully refused to answer these as well. However, since conviction on any one count is sufficient to sustain the judgment, enough of the record is set out above to show what we consider to be the error of the majority. Since in our view the committee apprised the petitioner that his Fifth Amendment objection was rejected, it is necessary to state our agreement with the courts below that, as the record shows, petitioner had waived the privilege by his answers to prior questions concerning his Communist Party affiliation and activities. We agree with the Court of Appeals that this is controlled by Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d 45, 51.

It might be better practice for congressional committees to follow a procedure of specifically overruling objections of witnesses and directing the witnesses to answer in the manner commonly followed in the courts. We feel, however, that in this case, where the petitioner was apprised that his objection was rejected and he still refused to answer, it should be held that he is guilty of a violation of § 192. We would affirm the judgment below.