Hutcheson v. United States/Concurrence Brennan

Mr. Justice BRENNAN, concurring in the result.

I join in the judgment affirming the Court of Appeals, but not in my Brother HARLAN'S opinion.

The Select Committee assured petitioner that it would respect his reliance upon his Fifth Amendment privilege against self-incrimination, but petitioner deliberately and explicitly chose not to exercise that privilege. In that circumstance, the case is not one for reconsideration of Hale v. Henkel, 201 U.S., 43, 26 S.Ct. 370, 50 L.Ed. 652, and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. I adhere, however, to my view that in a proper case we should reconsider the holdings of Hale and Murdock that, in a federal proceeding, possible incrimination under state law presents no basis for invoking the Fifth Amendment privilege. See Knapp v. Schweitzer, 357 U.S. 371, 381, 78 S.Ct. 1302, 2 L.Ed.2d 1393 (concurring opinion); see also Cohen v. Hurley, 366 U.S. 117, 154, 81 S.Ct. 954, 974, 6 L.Ed.2d 156 (dissenting opinion).

The petitioner's constitutional claims find no support, in my view, in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. That case involved a congressional inquiry into the settlement of a claim against a bankrupt firm. The settlement was said to threaten depletion of the bankrupt estate to the injury of other creditors, including the United States. The Court held that the subject matter was outside legislative cognizance because it was a matter inherently and historically for adjustment by the judicial branch, and because there was no hint of a legislative purpose to be served by the inquiry-'it could result in no valid legislation on the subject to which the inquiry referred.' 103 U.S. at 195.

The congressional inquiry before us here is in sharp contrast to that in Kilbourn. The Select Committee was seeking factual material to aid in the drafting and adopting of remedial legislation to curb misuse by union officials of union funds unquestionably a proper legislative purpose. The pending Marion County indictment did not involve misuse of union funds but the alleged bribery of a state official in connection with a sale of land to the State. However, the congressional inquiry and the state prosecution crossed paths when the Committee learned that union funds might have been used in a corrupt attempt to forestall an earlier indictment in another county, Lake, for the same alleged bribery. It seems to me obvious that the Committee's interrogation of the petitioner about the use of union funds to forestall that indictment did not stray beyond the range of the Committee's valid legislative purpose. It may be that, under Indiana law, evidence of the attempt, although not essential, would be admissible at the trial under the Marion County indictment. But this hardly converts the Committee's inquiry about the attempt into a legislative rehearsal of the trial of the Marion County indictment, bringing the inquiry within Kilbourn's condemnation of legislative usurpation of judicial functions.

When a congressional inquiry and a criminal prosecution cross paths, Congress must accommodate the public interest in legitimate legislative inquiry with the public interest in securing the witness a fair trial. Whether a proper accommodation has been made must be determined from the vantage point of the time of petitioner's appearance before the Committee.

Any thought that some of our recent decisions, e.g., Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399; Braden v. United States, 365 U.S. 431, weakened the vitality of our holding in Watkins v. United States, 354 U.S. 178, 187, 77 S.Ct. 1173, 1179, 1 L.Ed.2d 1273, that the congressional power of inquiry is not 'an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress,' is dispelled by today's strong expression of continued adherence to that vital principle. Investigation conducted solely to aggrandize the investigator or punish the investigated, either by publicity or by prosecution, is indefensible-it exceeds the congressional power: exposure for the sake of exposure is not legislative inquiry.

"(T)he power to investigate must not be confused with any of the powers of law enforcement * *  * .' Quinn v. United States, 349 U.S. 155, 161, 75 S.Ct. 668, 672, 99 L.Ed. 964; see United States v. Icardi, D.C., 140 F.Supp. 383. On the other hand, so long as the subject matter is not in 'an area in which Congress is forbidden to legislate,' Quinn, supra, at 161, 75 S.Ct. at 672, the mere fact that the conduct under inquiry may have some relevance to the subject matter of a pending state indictment cannot absolutely foreclose congressional inquiry. Surely it cannot be said that a fair criminal trial and a full power of inquiry are interests that defy accommodation. The courts, responsible for protecting both these vital interests, will give the closest scrutiny to assure that indeed a legislative purpose was being pursued and that the inquiry was not aimed at aiding the criminal prosecution. Even within the realm of relevant inquiry, there may be situations in which fundamental fairness would demand postponement of inquiry until after an immediately pending trial, or the taking of testimony in executive session-or that the State grant a continuance in the trial. On what is before us now, I think that the facts fail to show that this inquiry was unable to proceed without working a serious likelihood of unfairness. Examining the challenged questioning in the full context of the congressional inquiry and its relevance to legislation in process, leads me to conclude that petitioner was not questioned for exposure's sake.

The Select Committee began its hearings in 1957. The Committee engaged from the start in gathering facts which led to the conclusion that legislation requiring labor organizations to report and disclose various matters about their operation was necessary. The Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, resulted. Many features of that statute stem from facts learned by the Select Committee's examination into the affairs of several labor organizations, though the drafting was the work of the Senate Subcommittee on Labor and the House Subcommittee on Labor-Management Relations. The Subcommittees and their parent Standing Committees framed the statute after considering the Select Committee's findings. See, e.g., S.Rep.No.1684, 85th Cong., 2d Sess. 1 (1958); S.Rep.No.187, 86th Cong., 1st Sess. 2 (1959), U.S.Code Cong. and Adm. News 1959, p. 2318; H.R.Rep.No.741, 86th Cong., 1st Sess. 1 (1959), U.S.Code Cong. and Adm.News 1959, p. 2424; see also S.Doc.No.10, 86th Cong., 1st Sess. 1 (1959). The bills reported out by those Committees recited that their purpose was '(t)o provide for the reporting and disclosure of certain financial transactions and administrative practices of labor organizations and employers, to prevent abuses in the administration of trusteeships by labor organizations, to provide standards with respect to the election of officers of labor organizations * *  * .' The second paragraph of the Preamble to the bills included the following: 'The Congress further finds, from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation. * *  * ' S. 1555 and H.R. 8342, 86th Cong., 1st Sess. (1959); see also S. 3974, 85th Cong., 2d Sess. (1958).

At the opening of the Select Committee's hearings on February 26, 1957, the Chairman, Senator McClellan, noted petitioner's union as one of those that the Committee intended to investigate. Hearings, 2. Although the Committee's hearings during the 16 months before they reached petitioner were very full, they had touched upon the affairs of only a few unions, and petitioner's was only the fourth union inquired into with a particular view toward discovering modes of misusing union funds. See Hearings, at 2581, 3221, 7512, and 11786. Petitioner was subpoenaed on May 20, 1958, to appear before the Committee on June 2; his own appearance was put off to June 27, although testimony of other witnesses was taken commencing on June 4. Three months before he was subpoenaed, the state indictment against him was handed up, on February 18, 1958. He was not tried until November 1960, about 29 months after his appearance before the Committee. At the time he appeared, the questioning was directly relevant to the Committee's efforts to inform itself and Congress and to secure legislation within congressional power to enact, aimed at correcting just such evils as those about which petitioner was questioned. Earlier in June 1958, a labor-management reporting and disclosure bill, the Kennedy-Ives Bill, was reported out by the Senate Committee on Labor and Public Welfare and passed by the Senate, but in August it failed of passage in the House. 104 Cong.Rec. 10657, 11486-11487, 18287 18288. Therefore a bill was reintroduced on January 20, 1959, now known as the Kennedy-Ervin Bill. In introducing it, Senator Kennedy read a letter from ex-Senator Ives which said: '(The bill) is designed to meet the objectives set forth in the report of the Senate Select Committee on Improper Activities in the Labor or Management Field.' 2 N.L.R.B., Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 968. The Senate Subcommittee on Labor then conducted intensive hearings on that and alternative bills. In opening those hearings, Senator Kennedy said 'We expect further recommendations from the McClellan committee in its second annual report, and we expect to have the advice of an expert panel on labor law revision which will form the basis of further hearings and another bill later this year.' Reliance on the work of the Select Committee was evident and significant in those hearings. Hearings before the House Subcommittee began after the conclusion of the hearings by the Senate Subcommittee, and continued into June. Spirited debate over the merits of the proposed legislation continued throughout that session of Congress until enactment as the Act of September 14, 1959, Pub.L. 86-257. Section 2(b) of the declaration of findings, purposes, and policy incorporates the above-quoted findings of the second paragraph of the Kennedy-Ervin Bill. It was not until 14 months after passage that petitioner was tried.

The questioning of petitioner comes into focus against this background of an inquiry begun by the Select Committee more than a year before petitioner's indictment and continued by both the Select Committee and the Senate and House Labor Subcommittees well after petitioner's appearance, all aimed at and culminating in legislation. In this light, petitioner's interrogation emerges as but one step in the process of fact-gathering to establish the necessity for and the nature of remedial legislation, and I cannot say that it was an unnecessary step, or that the record supports a conclusion that the Select Committee questioned petitioner to affect his state trial.

Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.

This case highlights the problem of defining constitutional limitations upon congressional committees endowed with compulsory process. And because I firmly believe that continued sanction of investigative powers leading to abridgment of individual rights seriously impairs the intent of the Framers of our Bill of Rights, I dissent from Mr. Justice HARLAN's treatment of the constitutional issue presented here. That issue may be simply stated: Is it a violation of the constitutional guarantee of due process of law for a legislative committee, under the circumstances of this case, to inquire into matters for which the witness is about to be tried under a pending criminal indictment? The petitioner, already indicted and awaiting trial in a state court, was subpoenaed to testify before a congressional committee investigating union activity and union funds. When the questioning led to matters concerning facts upon which the state indictment was based, the dilemma the petitioner found facing him was this: if he answered truthfully his answers might aid the pending prosecution; if he answered falsely, he could have been prosecuted for perjury; and, if he relied on the Fifth Amendment's privilege against self-incrimination, that fact could be admitted against him in the state criminal trial. Mr. Justice HARLAN's opinion now holds that petitioner's dilemma had a fourth horn; he may also be sent to jail for refusing to choose imposition of one of these penalties. I believe that neither the Constitution nor our past decisions allow Congress to enlist the aid of the federal courts to do to this man what four members of the Court permit.

In 1821 this Court held for the first time in Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242, that although the Constitution did not expressly grant to Congress the power to conduct investigations, such a power, within legislative competence, could be implied because it is inherent in the lawmaking process. This investigative function of Congress is, of course, entirely independent of the judicial branch of the Government in strict separation-of-power terms. However, Congress, no less than other branches of the Government, is bound to safeguard individual liberties protected by the Bill of Rights, and it is the duty of the courts to insure that the specific guarantees of liberty are preserved for witnesses before a legislative body just as they are guarded for the benefit of defendants in a criminal court trial. This duty cannot be performed nor can the judicial conscience be stilled by a kind of hand-washing statement that a legislative committee (in some instances a committee of a single person delegated with full investigative power) may finally determine for the courts, not only the importance and relevancy of a matter under investigation, but also that the committee has the constitutional power to ask the questions it wants to ask at the moment. A full Court decided in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, that the courts must ultimately determine who shall be sent to jail and that only the courts may determine whether questions asked by a committee are within Congress' constitutional power of inquiry. And in our more recent cases, '(t)he central theme,' as we stated in Watkins v. United States, 354 U.S. 178, 195, 77 S.Ct. 1173, 1183, 1 L.Ed.2d 1273, has been 'the application of the Bill of Rights as a restraint upon the assertion of governmental power in this form.' This includes all provisions of the Bill of Rights-the Due Process Clause of the Fifth Amendment, as well as that Amendment's protection against self-incrimination.

Mr. Justice HARLAN's opinion fails to recognize that the essence of petitioner's contention is that largely because of this Court's decisions in Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, the interrogation on matters for which he had already been indicted was a violation of due process. Cf. Aiuppa v. United States, 6 Cir., 201 F.2d 287, 300. The duty of courts to safeguard an individual's personal liberty and to protect him from being compelled to answer questions outside the constitutional power of Congress, to which I have referred above, is particularly pertinent when Congress has enlisted the aid of the federal courts to protect itself against contumacious conduct and recalcitrant witnesses. 2 U.S.C. § 192, 2 U.S.C.A. § 192. In fulfilling their responsibilities under this statute the courts may not simply assume that every congressional investigation is constitutionally conducted merely because it is shown that great national interests lie in passing needed legislation. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that no branch of the Government transgresses constitutional limitations. See Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60.

Accommodation of the congressional need for particular information with the individual and national interest in assuring dispassionate protection for witnesses against unconstitutional encroachment upon their individual rights has proved to be an arduous task throughout this Nation's history. One principle, however, formulated to keep congressional power of punishment to compel testimony within the very narrowest of limits, seems to have withstood erosion by the passage of time and the ever-increasing complexities in carrying out the legislative function. That principle is that in exercising its power to compel testimony, Congress must utilize '(t)he least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat. 204, 230 231, 5 L.Ed. 242. And, in Kilbourn v. Thompson, supra, decided in 1880, this Court had occasion to emphasize the narrowness of this congressional power. In my opinion, the latter case is more like the instant one than any other in our reports and I believe the principles upon which it was decided call for a reversal of the conviction of petitioner here.

It is important, I believe, to reiterate the basic concept enunciated there: that it is for the courts, and not for Congress, in insuring to all persons the safeguards of the Bill of Rights, to establish the constitutional standards which must be observed before people in this country can legally be sent to prison. The case arose in this manner: While a United States District Court, pursuant to its competent jurisdiction, was administering the estate of the bankrupt firm of Jay Cook & Company, which owed money to the United States Government, the House of Representatives passed a resolution to investigate a settlement made by the trustee. The basis for this action was that the settlement allegedly would be to the disadvantage of creditors, including the Government, and that the courts were powerless to afford adequate relief because of the settlement. Kilbourn was subpoenaed to appear as a witness and to bring records, papers and maps 'pertinent to the question under inquiry.' Kilbourn refused and was convicted by the House of contempt. In holding that the House had exceeded its power, a unanimous Court forcefully announced restrictions upon the congressional power to punish for contempt and, at the same time, made it emphatically clear that those restrictions are equally applicable to the congressional power to compel testimony. Thus, when a committee attempts to exercise an extraordinary and unwarranted assumption of judicial power, this Court must strike it down, just as it has done in a situation in which the power to investigate infringed upon powers of law enforcement agencies. Cf. Quinn v. United States, 349 U.S. 155, 161, 75 S.Ct. 668, 672.

When the circumstances of the instant case are compared to those which prompted the Court to void the conviction in Kilbourn, a striking similarity emerges. Indeed, the major difference in the circumstances of the two cases-that is, that this case involves a criminal indictment pending against the witness while Kilbourn involved only a civil suit-would seem to make this case even stronger than Kilbourn. The Court's chief reliance for holding that Congress exceeded its powers in the Kilbourn case was that the transactions into which Congress inquired were pending in a court, that the investigation was one 'judicial in its character, and could only be properly and successfully made by a court of justice'; and, since the inquiry 'related to a matter wherein relief or redress could be had only by a judicial proceeding, * *  * that the power attempted to be exercised was one confined by the Constitution to the judicial and not to the legislative department of the government.' Kilbourn v. Thompson, supra, at 192-193. The Court summed up its view of the circumstances that showed an absence of congressional power to ask Kilbourn the questions it did with this statement: 'The matter was still pending in a court, and what right had the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction?'

In this case the particular subject of the Committee's inquiry to which the petitioner objected was whether he had in the past been unfaithful to his union in administering its funds. An indictment was then pending against petitioner in a court of competent jurisdiction charging him with using those same funds for an unlawful purpose. The congressional committee, just as the House in Kilbourn, had no power to grant the union relief or redress of any kind for that alleged breach of trust by petitioner. So far as Congress was concerned in Kilbourn, the differences between Jay Cook and its creditors were held to be their 'private affair' about which Congress could not compel a witness to answer; thus, a pending civil case was enough to bar inquiries concerning the transactions in that litigation. There is far more reason, it seems to me, to apply that principle to this case where Congress attempts to compel a witness to supply testimony which could be used to help convict him of a crime.

In so viewing this matter I do not overlook the argument in Mr. Justice HARLAN'S opinion that this particular testimony was relevant to the congressional investigation of the handling of union funds by their officers in order to help Congress decide if it should enact legislation in this field, and, if so, what kind of legislation it should enact. Conceding that under Anderson and Kilbourn the Committee here had the power to ask general questions along this line, it does not follow that it could make detailed inquiries about the conduct of a witness that related specifically to a crime with which he was already charged and for which he was soon to be tried in a court of competent jurisdiction. Not only would it be contrary to the holding in Kilbourn to conclude otherwise, but it is incomprehensible to me how it can be urged that Congress needed the details of how petitioner committed this alleged crime in order to pass general legislation about union funds. It would be hard, indeed, I believe, to make rational proof that to refuse to Congress the power to compel testimony from a witness about a matter for which he is about the be tried criminally, would invade the area of '(t)he least possible power adequate' to enable Congress to legislate about union officers and union funds.

In my view, it is not a satisfactory approach to problems involving principles of constitutional dimension to look first to the interests of the Government and, if they loom large in the particular instance, to go no further. The countervailing principles embodied in our Bill of Rights do not demand attention only when the governmental interest lacks compulsion. The Bill of Rights demands much more than that. In judging whether Congress has used '(t) he least possible power adequate to the end proposed,' the courts must assure that any possible infringement on personal rights be minimized. In this determination the courts must consider factors such as the degree of need of the investigating committee for the particular information requested and whether the Committee is able to get the desired information from some evidentiary source other than from a witness presently under criminal indictment on a charge relating to those very facts. The fact that in this case Indiana appears to have had sufficient evidence to secure an indictment against the petitioner is adequate indication that independent sources of information were easily available to the Committee by which it could have obtained the very information it sought here without jeopardizing the constitutional rights of the petitioner by asking him about it. Moreover, it cannot be argued with persuasion that Congress would be met with an insurmountable barrier in gathering needed information if a defendant in a pending criminal trial could not be compelled to answer questions before a legislative committee relevant to that indictment. Congress has shown that it has at its command means for removing any such barrier. See Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608.

The process through which the result has been reached in Mr. Justice HARLAN'S opinion seems to be to ignore the very reasons the Bill of Rights was incorporated into our Constitution. Those provisions were adopted as, and are intended to be, restraints upon actions by the Government which trespass upon personal liberties reserved to the individual in our society. If, as I believe, the Constitution has barred the Government from proceeding in a particular instance, despite the conceded validity of its interest in the testimony, the courts are duty bound to stand fast against any impairment of the individual's guaranteed rights. Congress cannot, by imposing upon the courts the responsibility for committing persons to jail for contempt of its committees, expect or require the courts to apply lower standards than are compelled by the Bill of Rights, any more than it could direct the courts to suppress those same rights in judicial proceedings. The Bill of Rights, not Congress, establishes the standards which must be observed before people in this country may legally be sent to jail. A congressional committee has the power to compel testimony to aid it in shaping legislation, but it does not have the power merely to publicize a citizen's shortcomings or to aid a State in convicting him of crime. I consider a procedure which pinions a citizen within a dilemma such as was created by the circumstances of this case, and which goes beyond '(t)he least possible power' adequate to accomplish Congress' constitutionally permissible ends, a direct encroachment upon rights secured by due process of law. To send this man to jail for his refusal to answer questions that, because of the circumstances of this case, are outside the power of a committee to ask is, as Kilbourn v. Thompson held, a plain denial of that process guaranteed by the Fifth Amendment to our Federal Constitution. I would reverse the conviction.

Mr. Justice DOUGLAS, dissenting.