I. Introduction
By the time Chief Justice Earl Warren decided his first case involving contempt of the House Un-American Activities Committee (“HUAC”),1 the only change to the composition of the Supreme Court since its now-infamous decision in Dennis v. United States2 was that he had replaced Chief Justice Fred Vinson and Justice John Marshall Harlan had replaced Justice Robert Jackson. On only one occasion was the new Chief Justice able to gain a majority of the Court to join in an opinion that denounced the goals of the that committee or its counterpart, the Senate Subcommittee on Internal Security (“SSIS”), rather than just the procedures followed in pursing those goals—Watkins v. United States.3 Throughout his entire sixteen-year tenure as Chief Justice, Warren either dissented from opinions upholding Congress’s power to punish people for refusing to testify before (or turn over documents to) HUAC or SSIS,4 or was able to assemble a majority only for narrow, technical challenges to that power.5
These facts lend themselves to an easy narrative: Warren simply could not get enough votes to make his sweeping pronouncements in Watkins stick. That narrative, however, does not explain the last two decisions that the Warren Court issued concerning a then-moribund HUAC, Yellin v. United States6 and Gojack v. United States.7 These were also narrow, technical decisions. And by the time these cases were decided, 1963 and 1966, respectively, Warren likely did have five votes in favor of a free-expression attack on the entire system of McCarthyite congressional witch-hunts.
This paper charts the Warren Court’s handling of those convicted for contempt of Congress at the urging of HUAC and SSIS. It concludes with a speculation concerning why Warren did not push for a sweeping denunciation of those committees in 1963 or 1966, namely that these cases marked a return to the Court’s pre-Watkins use of formalism to bring about the just result.
II. Contempt of Congress Under Vinson
The House Un-American Activities Committee grew out of the anti-fascist Dies Committee, and quickly turned to focus on the tactics of the Communist Party.8 Its counterpart in the Senate, the Subcommittee on Internal Security, came into being in 1950 to monitor the enforcement of the McCarran Act and related laws.9 While each was nominally tasked with determining whether current espionage and security statutes were adequate to the subversive threat posed by Communism, they often did so by asking whether a particular citizen was or ever had been a member of the Communist Party.10 Both committees seemed concerned with ferreting out and exposing Communists for the sake of exposure, i.e., for the sake of punishing the individual rather than gathering information useful to the legislative process.11 They were not the only committees that engaged in this exposure process.12
The McCarthyite congressional committees could not punish Communists directly, for the most part—that task was left to the vigilantism of blacklists and public opprobrium—but they could punish those who did not cooperate in the identification of Communists.13 Central to that punishment was a nineteenth-century statute by which Congress had augmented its inherent power to punish contempt at the bar of the House or Senate by making that contempt into a crime punishable in the courts.14
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor… .15
The key phrases in this statute would turn out to be “pertinent,”“willfully,” and “under inquiry.”
At first, it seemed as though the Vinson Court might force McCarthyite congressional committees to respect the formalities of criminal due process, albeit in a case that involved perjury rather than contempt of Congress, Christoffel v. United States.16 Harold Christoffel had been convicted of perjury for telling the House Committee on Education and Labor that he was not a Communist.17 Yet perjury had to be committed before a “competent tribunal,”18 while the quorum that was present when roll was called had dissipated by the time Christoffel denied being a Communist.19 Ignoring a dissent from Justice Jackson that, under the Rules of the House, the Committee had been a competent tribunal because no point of quorum had been raised,20 Justices Murphy, Minton, Frankfurter, Douglas, and Black voted to reverse the conviction.21 “We are measuring a conviction of crime by the statute which defined it,” they wrote.22
The very next year, however, the Court was again faced with the criminal prosecution of a witness, Helen Bryan, who claimed at trial that there had been no quorum at the HUAC hearing at which she refused comply with a subpoena to produce records.23 Murphy was no longer on the Court, and Minton joined in an opinion written by Chief Justice Vinson in which the Court upheld Bryan’s conviction. First, they argued, since the criminal contempt statute did not make any reference to a “competent tribunal,” Christoffel was irrelevant: that the alleged contempt occurred before a competent tribunal was not an element of the offense.24 Second, Bryan’s failure to object to a lack of quorum at the HUAC hearing both barred her from raising the issue at trial and demonstrated that the lack of a quorum did not materially disadvantage her.25 Lastly, the statute barring the use of congressional testimony in criminal proceedings other than those for perjury should not be read as barring its use in prosecuting contempt of Congress.26
Of these three arguments, the second was to reverberate most in the Warren Court.27 By contrast the first meant in essence that a witness who lied about being a Communist could raise the lack of quorum at trial, but not a witness who refused to answer the question at all.
It is the third argument, however, that is of greatest importance for understanding the fate of witnesses before McCarthyite congressional committees under the Warren Court. Technically, both Justices Black and Frankfurter dissented in United States v. Bryan (Justice Douglas did not participate in the case).28 Frankfurter, however, made it clear that he objected only to the Court’s third argument regarding the admissibility of testimony before Congress.29 Thus Frankfurter was willing to demand that witnesses before a congressional investigative committee raise all objections there, and only a regard for the formalities of the criminal law could save a recalcitrant witness. In his dissent from a companion case, Frankfurter wrote that “regard for [congressional committees’ power of testimonial compulsion] does not call for the slightest relaxation of the requirements of our criminal process.”30
Just as importantly, however, Frankfurter was willing to countenance an awful lot so long as legal forms were adhered to. The idea that one might inadvertently “waive” a defense by failing to raise it in a congressional investigation stands in stark contrast with the nature of a congressional investigation. It suggests that a witness must approach congressional inquiries as a possible prelude to criminal prosecution and thus be wary to preserve arguments for eventual trial and appeal. Yet Congress’s authority to punish contempt depends upon its having a proper legislative purpose for its investigation.31 Congress might like to know, for example, why a debtor to the United States is insolvent, but unless it is contemplating impeaching a federal officer for extending credit to an insolvent debtor, Congress cannot undertake the clearly judicial function of investigating particular wrongs.32 Where Senators stand accused of insider trading, the Senate can investigate into whether a particular firm has made trades on behalf of Senators, but it cannot “intru[de] into the affairs of the citizen” or “seek to ascertain any facts as to the conduct, methods, extent, or details of the business of the firm in question.”33 In upholding Congress’s power to compel testimony from the Attorney General’s brother concerning malfeasance in the Department of Justice, the Court reaffirmed, “neither house is invested with a ‘general power’ to inquire into private affairs and compel disclosures, but only with such limited power of inquiry” as is necessary to make its enumerated powers effective.34 The sorts of questions that might be pertinent in contemplating legislation have been expanded, but always in the context of a reiterated prohibition on actual investigation into the affairs of the citizen.35 The notion that a witness might waive a defense by failing to assert it before Congress, by contrast, treats investigative committees as analogous to trial courts or administrative adjudications. From the beginning, then, Justice Frankfurter seemed amenable to the least defensible aspect of the McCarthyite investigative committees, namely, the exposure and public shaming of individual Communists.
The fact that Frankfurter was willing to give McCarthyism some leeway comes out in a case that did not involve Communists, a case the significance of which was to become a bone of contention under Warren’s Chief Justiceship, United States v.Rumely.36 That case involved the Committee for Constitutional Government, which had formed in order to oppose the New Deal and in particular to oppose support for organized labor.37 In August 1950, the House Select Committee on Lobbying Activities demanded that its secretary, Edward Rumely, produce a list of all the bulk purchasers of his organization’s books.38 The House committee’s chairman, Frank Buchanan, claimed that Rumely’s organization spent lavishly on lobbying activities but had never disclosed its contributors, so the committee wanted to see whether the Lobbying Act should be amended in case these bulk purchases were actually disguised contributions to lobbyists.39 of course, Rep. Buchanan’s hearings were described in the conservative press at the time as an “iniquitous New Deal inquisition … set out to intimidate opponents of Trumanism.”40 When Rumely refused to turn over the records, he was convicted of contempt of Congress.41
In this context, where there was no whiff of an international Communist conspiracy, Frankfurter thought that a congressional investigation might offend the First Amendment.42 He used this suspicion to justify avoiding the constitutional question, however, deciding instead that the House resolution authorizing the Select Committee did not clearly authorize an investigation into all attempts to influence public opinion.43 The fact that the House as a whole must have thought Buchanan’s inquiry relevant to an authorized investigation, considering that it approved his request to prosecute Rumely for contempt, was irrelevant, Frankfurter declared.44 “Rumely’s duty to answer must be judged at the time of his refusal … and cannot be enlarged by subsequent action of Congress.”45 That is, where Communists were not concerned, Frankfurter (and even Vinson, Clark, Jackson, and Reed, who joined his opinion) would read a congressional committee’s authorization narrowly if an investigation raised First Amendment concerns.
Justices Douglas and Frankfurter would have overturned Rumely’s conviction based on the First Amendment,46 but the Court that Chief Justice Warren was to inherit was composed largely of justices who had found Communism to be significant enough of a threat to trump First Amendment concerns47 and who were willing to entertain a First Amendment objection to congressional investigations only where Communists were not involved.48 At least some procedural defects in a congressional committee’s form had to be raised before the committee itself, lest a witness be barred from raising them as a defense to criminal contempt charges.49 Nonetheless, when Warren took his seat there was precedent that a congressional committee’s authorization to ask a question had to be clear in order to sustain a conviction for contempt.50 A string of cases stating that Congress could not investigate the private affairs of citizens, or at least could inquire into them only pursuant to a valid legislative purpose, were still good law.51 Crucially, Justice Frankfurter was willing to abandon the Dennis majority in the name of strict adherence to the formalities of criminal law, even where Communists were concerned.52
III. Criminal Procedure: The opening Salvo
The Warren Court’s first push against the power of McCarthyite congressional committees to punish for contempt came in a trio of cases decided in 1955,53Quinn v.United States,54Emspak v. United States,55 and Bart v. United States.56 Where Bryan had required that witnesses follow certain formalities in order to preserve their objections to the composition of the committee,57 these cases compelled Congress to follow certain formalities if it wished to prosecute a person for contempt. Chief Justice Warren’s majority opinions in these cases were joined by Justices Douglas and Black, as was to be expected, but also by Justices Frankfurter, Burton, and Clark. In Quinn, even Justice Minton joined the majority, while Justice Harlan, who had replaced Justice Jackson some months earlier, concurred in the judgment.
Thomas Quinn was a labor union field representative and had been subpoenaed to appear before a HUAC subcommittee along with two other union officers, Thomas Fitzpatrick and Frank Panzino.58 Fitzpatrick and Panzino testified first and both refused to answer questions about their membership in the Communist Party, the former mentioning the First and Fifth Amendments, the latter adopting Fitzpatrick’s statement and mentioning the Fifth Amendment.59 The following day, however, Quinn said only that he supported the position advanced by Fitzpatrick and that the defense of constitutional principles forbade him to answer the question.60
The House was apparently of the opinion that there was no Fifth Amendment privilege against self-incrimination applicable to its investigations, since it referred all three for criminal prosecution for contempt of Congress.61 Whatever legal arguments the government put forward in support of that position, it was not seriously considered: both Fitzpatrick and Panzino were acquitted,62 with the District Court in the former’s case saying only,
[t]here can be no doubt that [the privilege against self-incrimination] extends to a witness testifying before any judicial, congressional or administrative body of the United States Government, although, apparently, there has been misapprehension on the part of some that it does not.”63
The Supreme Court’s own treatment was brief: one paragraph of platitudes about self-incrimination followed by a three-sentence syllogism that Quinn was entitled to claim the privilege.64 Only Justice Reed suggested that the privilege against self-incrimination should not apply to congressional investigations, since the extension of that privilege beyond criminal trials was a matter of judicial discretion that could not be authoritative regarding Congress’s own policy of compelling testimony before it.65 But not even Justice Minton joined Reed’s dissent.
The significance of Quinn, then, is its near-unanimous, if muted, rebuke of the House regarding the reach of the Fifth Amendment. Given the privilege against self-incrimination, and given that the Smith Act exposes Communists to criminal liability,66 the Court acted as though the only real question was whether Quinn had invoked his privilege, which everyone other than Reed agreed he had.67
Warren also articulated an alternate ground for reversing Quinn’s conviction, a ground from which only Reed and Harlan dissented.68 As a criminal statute, contempt of Congress requires criminal intent.69 The witness must know that an answer is demanded before a refusal to answer can be wrongful, and this requires that the committee expressly overrule any objections to the question.70 Because the HUAC subcommittee did not overrule Quinn’s invocation of Fitzpatrick’s objections, he could not be convicted of contempt of Congress.71
This aspect of the Quinn decision can only be seen as an attack on McCarthyite procedures. After all the objection offered by Fitzpatrick and invoked by Quinn read:
The Constitution of this country provides certain protection for minorities and gives the privilege for people to speak and think as they feel that they should and want to. It also gives the privilege that people can have opinions or beliefs that may be unpopular. In my opinion, it gives them the right to hold those opinions secret if they so desire. This is a protection of the first amendment to the Constitution, supplemented by the fifth amendment.72
Quinn, in saying he agreed with this sentiment, phrased it solely as the right to hold unpopular beliefs, that is, as a First Amendment issue.73 In order for his refusal to be made with the requisite criminal intent, on the Court’s reasoning, the HUAC subcommittee would have had to have remembered that Fitzpatrick also made passing reference to the Fifth Amendment and expressly overruled that objection. As Reed’s dissent makes clear, the Court was imposing a requirement for formulaic recitations on Congress at the same time as it was declaring that witnesses need not make any formulaic recitation in order to invoke their rights.74
The fact that the Court was taking aim at the informality of McCarthyite congressional investigations as a whole, and not just the sloppiness of this particular HUAC subcommittee, is seen plainly in its parallel decision in Bart.75 There, the witness had refused to answer based on both the Fifth Amendment and the fact that the questions were not pertinent.76 The HUAC subcommittee chairman told the witness’s lawyer, “[j]ust advise your client and don’t argue with the committee, because we don’t rule on objections.”77 Yet the witness was then told the question’s pertinence and that he was not being asked to incriminate himself.78 His conviction was nonetheless overturned.79 What was at issue, therefore, must have been the informality with which HUAC subcommittees operated, the fact that they “don’t rule on objections.”
In Emspak the witness had seemed to disclaim a reliance on the Fifth Amendment at all, expressly denying that he was concerned that his answer would open him to criminal prosecution.80 Earlier in his testimony, however, he had stated, “I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the first amendment, supplemented by the fifth. This committee will corrupt those rights.”81 With this statement as a hook, the Court approached the question as one of whether Emspak had effectively waived his right, not whether he had invoked it, and as his waiver was not explicit, it was not valid.82
In finding that Emspak intended to rely on the Fifth Amendment in the first place, however, the Court set the bar very low. When Emspak was asked whether he knew a specific person, he began to make a statement on the nature of his job as a union representative, the importance of the Constitution, and how HUAC was bad for the labor movement.83 He affirmed several times that he would answer the question; it was while reaffirming that he would in fact answer the question that he said he was defending the Constitution, primarily those rights protected by the First Amendment, as supplemented by the Fifth.84 The fact that Warren saw in this an invocation of the privilege against self-incrimination lost him the votes of Minton and Harlan, who had voted with him regarding Quinn. The extended quotations from the record that characterize the dissents in Quinn, Emspak, and Bart suggest that Warren stood accused of distorting that record.85
What the Court was in effect doing was demanding that congressional investigative committees conduct themselves more like an official tribunal, with formal rulings on objections, except that the objections themselves did not have to be made formally (or even very discernably) at all. On one hand, this demand validated the adversarial and potentially penal nature of the McCarthyite congressional committees, where in theory they could exist solely to solicit information Congress needed in order to legislate intelligently.86 On the other hand, however, those committees were pursuing individuals under the pretext of a legitimate legislative purpose, and unless the Court was going to put an end to the hearings altogether—a position for which there were neither the votes, the doctrine, nor the means of enforcement—compelling Congress to conduct itself like an adversarial tribunal was certainly an improvement. Yet the Court went beyond even this. In finding that even a passing reference to the Fifth Amendment counted as invoking it, even when the witness denied that answering would be incriminating,87 as did the bare adoption of another’s statement that made passing reference to the Fifth Amendment in the course of defending the freedom to hold unpopular beliefs,88 Warren signaled to the McCarthyite investigative committees that the Court had between six and eight votes in favor of watching Congress’s anti-Communist activities very closely for any procedural impropriety that might implicate criminal due process concerns.
Warren was able to assemble this coalition in 1955 for two main reasons. First, he did not touch the First Amendment claims raised by the defendants, ostensibly because the other grounds sufficed to dispose of the cases.89 That ostensive justification is undercut by the fact that Warren offered parallel sufficient arguments in all three cases—each defendant had invoked the Fifth Amendment and evidence of criminal intent was lacking90—so his refusal to touch the First Amendment was probably strategic. Second, at issue was not simply Congress’s power to conduct investigations or even to jail nonmembers for contempt before its own bar, but its desire to involve the judiciary in punishing contempt. This not only meant that a larger issue was at stake than simply the fate of a few Communists, but it also allowed Warren to take advantage of the momentum of Rumely’s formalistic reasoning.
IV. Warren Shows His Hand: Watkins v. United States
Everything that the Chief Justice was careful not to say in Quinn, Emspak, and Bart, he shouted in Watkins v. United States.91 What survived of the case—the propositions for which it was later cited by less amiable majorities—was the narrow, technical ground that Justice Frankfurter cast as its real holding.92 Contempt of Congress is a crime, meaning that the acts constituting the crime must be clear at the moment the defendant can avoid them.93 What the statute criminalizes is a refusal to answer “any question pertinent to the question under inquiry.”94 Thus, the scope of a congressional inquiry must be clear both for the witness to know that the question is pertinent and for the courts to judge whether the question the witness intentionally refused to answer was indeed pertinent.95 That clearly defined scope was lacking in Watkins’ case.96
John Watkins had freely answered a HUAC subcommittee’s questions about his own Communist activities and whether or not he knew specific persons, but he refused to say whether those he knew were members of the Communist Party.97 While the Court had suggested that acknowledging relationships with Communists might be incriminating,98 Watkins had already answered questions about whom he knew and in any case expressly refused to plead the Fifth Amendment.99 He instead insisted that questions about other people were not relevant to the subcommittee’s work and that it could have no authority to expose them publicly because of past activities.100 Watkins in effect challenged the legitimacy of what HUAC was actually doing.
Unlike in Quinn, Emspak, and Bart, Warren’s Watkins opinion did not avoid the First Amendment issue.101 What is surprising is not that he touched it—McCarthyism certainly raised First Amendment concerns, even granting what we now know about the extent of Soviet infiltration during the Cold War102—but that he did so little with it. He laid out an argument, but he did not draw the conclusion from it.103 Congress’s power to conduct investigations is broad, but not absolute, he said.104 Not only must an investigation be justified in terms of Congress’s functions,105 but even a justified investigation must comport with the Bill of Rights, including the rights against self-incrimination, unreasonable search and seizure, and abridgement of free speech, belief, or association.106 These limits may be enforced on judicial review even when Congress punishes contempt at its own bar,107 and so a fortiori when it instead delivers the contemnor to the judicial branch for punishment.108 Abuse of the investigative process may abridge political freedoms by exposing the adherents of unorthodox beliefs to public censure,109 and so Congress’s need for information can be accommodated only by the courts’ discerning “the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.”110
These arguments set up any one of several conclusions, but Warren does not draw any of them. He could have concluded that there is no valid legislative purpose in ferreting out individual Communists and that this is what the HUAC subcommittee was doing with Watkins. He could have said that, even though HUAC had a valid legislative purpose in knowing the extent of the Communist threat the nation faced, that purpose would be so little advanced by discovering the political beliefs and associations of particular individuals in a nation of over one-hundred sixty million that the First Amendment forbade such inquiries. But he did not.
Instead, Warren noted that the House or Senate must set the boundaries of their investigative committees and that a vague authorizing resolution makes it more possible for the committee to deviate from the House’s or Senate’s will.111 Turning to the resolution authorizing HUAC, in particular (“Rule 11”), Warren remarked, “[i]t would be difficult to imagine a less explicit authorizing resolution.”112 That lack of clarity frustrates the task of judicial review,113 preventing the courts from “strik[ing] a balance between the public need for a particular interogation and the right of citizens to carry on their affairs free from unnecessary governmental interference.”114 But again Warren did not draw a salient conclusion from this: he did not say that, where Congress’s interest in the information is not clear, inquiries into an individual’s political beliefs and associations violate the First Amendment.
The reason why Warren did not draw any of these conclusions seems rather clear: an opinion that garners only four votes is not controlling. Minton and Reed were no longer on the Court, but the former’s replacement by Justice Brennan was offset by Clark’s shift to the dissent in Watkins.115 Formerly, Clark had voted in favor of strict criminal due process protections for those accused of contempt of Congress,116 but now rejected even Frankfurter’s understanding of the Watkins decision,117 having stated at conference that making prosecution in the courts too difficult “would throw these people into the fire” by causing Congress to try them before its own bars, where “the witness has no lawyer and no appeal.”118 While Watkins was ultimately decided six to one, Frankfurter made it clear that he joined only regarding criminal due process119 and at conference suggested that he was averse to cabining Congress’s investigative power.120 Harlan’s subsequent decision in Barenblatt v. United States shows that he thought HUAC’s work important enough to overcome most First Amendment challenges.121
Yet if Warren could not get the votes for the conclusions flowing from the premises he laid out, then his inclusion of those premises at all becomes perplexing. As a practical matter, the precedential value of his statements depended upon five justices supporting them in a future case, not their presence on the pages of the United States Reports. To the extent that members of his majority disagreed with those statements, their likely effect was to antagonize justices upon whose votes he would have to rely. He had said nothing about the First Amendment in conference, instead noting that this was a good case to state the due process limits on Congress’s power to punish through the judiciary.122 Frankfurter’s response was that “[w]e should not talk big in this field.”123
Warren not only talked big in this case, but the manner in which he did so was certain to alienate Frankfurter and Harlan. He cited Rumely for the proposition that “the mere semblance of legislative purpose [will] not justify an inquiry in the face of the Bill of Rights,”124 when Frankfurter had assiduously avoided reaching the constitutional issue.125 When Warren said that a less explicit resolution than that authorizing HUAC was difficult to imagine, he telegraphed his doubts that there was any such thing as “Un-American” or a “single, solitary ‘principle of the form of government as guaranteed by our Constitution.’”126 Warren was laying the foundation for limiting Congress’s investigative power; Frankfurter said that the only case in which Congress was held to have exceeded that power was flawed.127 Warren not only lost his majority within two years, but so alienated his colleagues that they rejected challenges to McCarthyite investigations even where it was clear that the committees were out of control. A decade later, one commentator on HUAC concluded that “the Chief Justice was merely indulging himself.”128
V. The Reaction Against Warren
The broad statements in Watkins were not reflected in subsequent Supreme Court decisions. The Court decided two cases involving contempt of Congress in between that case and Barenblatt v. United States a mere two years later. In Sacher v. United States, the Watkins majority voted to overturn a conviction for refusing to answer a question that was not pertinent to a SSIS investigation.129 In Flaxer v. United States, a unanimous Court overturned the conviction of a witness who had declared that he would not produce documents for SSIS: because the subcommittee had given him ten days in which to comply, his refusal the day of the hearing did not suffice for the criminal intent to refuse to produce the documents ten days later.130 Both were technical rulings based on the protections of the criminal law.
One explanation for the Court’s renewed incrementalism involves Congress’s reaction to what was decried as Red Monday, the day on which Watkins and a series of other cases targeting McCarthyism were announced.131 Senator William Jenner introduced a bill to limit the Supreme Court’s appellate jurisdiction over subversive activities,132 including “any case where there is drawn into question the validity of … any action or proceeding against a witness charged with contempt of Congress.”133 This provision was stripped from the bill by an amendment offered by Senator John Marshall Butler,134 but the Judiciary Committee replaced it with an amendment to the contempt of Congress statute itself stating that a question would be deemed “pertinent” if (1) no objection was made at the hearing or (2) the question was ruled pertinent by the committee, with the presiding officer’s ruling standing as the ruling of the body unless overruled.135 Although the Jenner-Butler Bill made it out of committee, it was never taken up for a vote.136
At any rate, Chief Justice Warren found himself in the dissent in Barenblatt.137 Not much need be said about the majority opinion, other than that it affirmed what Frankfurter and Harlan liked about Watkins while emphatically rejecting what they disliked. Watkins did not hold that Rule 11 was impermissibly vague, Harlan wrote for the majority, but rather that the pertinence of a question had to be clear in order to sustain a conviction, and the pertinence of a question can be gleaned from sources other than the investigative committee’s authorizing resolution.138Watkins was also distinguishable in that there the witness did not receive a satisfactory answer to his pertinence objection, while Barenblatt’s reservation of his right to raise pertinence objections in general did not count as a particular objection to which the subcommittee had to respond at all.139 Because of the threat posed by Communism, the Court continued, the First Amendment is not offended by compelling witnesses to disclose their political affiliations.140
Freed from the imperative to garner a majority, Black’s dissent called a spade a spade.141 HUAC’s mandate was too vague, and as the pertinence of a question can come only from that mandate, no prosecution for failing to answer any question asked by any HUAC subcommittee could be sustained.142 HUAC’s activities were designed to curtail speech, and no balancing test could save such an unconstitutional legislative purpose.143 The threat of Communism did not justify any departure from the First Amendment, since stifling debate is unnecessary to the preservation of the nation.144 And as the real aim of the McCarthyite activities was to punish individuals for their unorthodox beliefs, HUAC impermissibly encroached upon the exclusive preserve of the judiciary.145
What is remarkable is not so much the Court’s repudiation of where Warren wanted to go in Watkins. He had lacked the votes to write something along the lines of Black’s dissent from Barenblatt, but had tried to lay the legal foundation for it anyway. What is instead remarkable is how far the Barenblatt majority was willing to go in subsequent cases in order to avoid acknowledging any merit whatsoever to the concerns expressed in Watkins.
Arthur McPhaul had been convicted of contempt of Congress in 1954 for a willful failure to comply with a subpoena to produce the records of the Civil Rights Congress.146 He refused to say whether those documents were in his possession or control, citing the Fifth Amendment,147 he presented no evidence at trial,148 and the only evidence suggesting he had any connection to the Civil Rights Congress was not submitted to the jury.149 When the Court upheld his conviction in 1960, it inscrutably argued that Bryan (a case about accidentally waiving defenses)150 required that McPhaul answer the subcommittee’s questions about whether he was able to comply with its subpoena.151 The only thing the Court said to McPhaul’s claim that he could not answer without incriminating himself was that “there is no merit in Petitioner’s argument.”152 His refusal to answer these questions, therefore, provided the prima facie case for willful refusal to comply with a subpoena, thus shifting the burden of proof to him to show that he could not comply.153
It was of no avail for Justice Douglas to point out in his dissent that the burden of proof can shift to a defendant only after the government has shown at trial some connection between the witness and the subpoenaed documents.154 His plea that, “when it comes to criminal prosecutions, the Government must turn square corners”155 echoed the Court’s earlier cases protecting the due process rights even of Communists.156 Douglas’s argument did not mention, let alone rely on, the First Amendment or the impermissible vagueness of Rule 11. Frankfurter and Harlan nevertheless voted with the rest of the Barenblatt majority to uphold the conviction.
Even more shocking was the Court’s sustaining the convictions of Frank Wilkinson and Carl Braden the following year.157 When a HUAC subcommittee was convened in Atlanta in 1958, Wilkinson travelled there to protest its activities.158 He was immediately subpoenaed and asked if he was a Communist.159 Braden had forwarded two petitions to Congress, one opposing anti-sedition laws on the grounds that they were being used to target civil rights activists, the other accusing HUAC of targeting liberal and independent thinkers rather than Communists; the HUAC subcommittee summoned him to testify.160 He was asked if he was a Communist “the instant you affixed your signature to that letter,” referring to the first petition.161 Both men refused to answer, citing the First Amendment, and were convicted of contempt.162
Whatever political inclinations both men might have had, it could not have been any clearer that they were targeted for their opposition to McCarthyism, not any activities related to Communist sabotage, espionage, or infiltration of core industries.163 The Court nevertheless refused to intervene. “These circumstances … do not necessarily lead to the conclusion that the subcommittee’s intent was personal persecution of the petitioner,” it said in Wilkinson.164 If Wilkinson’s opposition to HUAC was based on his being a Communist, HUAC was entitled to know that.165 And given HUAC’s mandate, “Are you a Communist?” is always a pertinent question.166 Of Braden’s assertion that he was targeted solely for engaging in protected political advocacy, the Court said only that the subcommittee believed he was a Communist and was investigating appropriately.167 In effect, a criminal defendant would have to prove HUAC’s malicious intent beyond a doubt, and not even just beyond a reasonable doubt, in order to avoid conviction for contempt of Congress.
In these opinions, the Court did not simply refuse to declare McCarthyite investigative committees to be a violation of the First Amendment, as Black had done in his Barenblatt dissent and Warren had stopped just short of doing in Watkins. It shielded those committees from any First Amendment scrutiny whatsoever. And it did not do so on habeas corpus petitions from those imprisoned following trial at the bar of the House or Senate, but in sustaining criminal convictions before Article III courts. Justices Clark, Frankfurter, Harlan, Whittaker, and Stewart had rejected the relevance of the First Amendment entirely. And as McPhaul shows, they had grown impatient with criminal due process, as well.
A fourth case suggests that Justice Stewart, at least, did not vote to uphold those convictions out of fear of McCarthyism (and given Senator Jenner’s retirement168 and the movement’s increasing irrelevance,169 it is unclear how much this fear might have affected Justices Frankfurter and Harlan at that point, either). Bernhard Deutch was a college student who told a HUAC subcommittee investigating Communist infiltration of Albany labor unions about his own Marxist dabblings at Cornell.170 When he refused to name other Communists at Cornell, however, he was indicted and convicted for contempt of Congress.171 Like Watkins before him, he had done the “honest” thing, confessing his own acts but refusing to be an informer.172
Here, the same Stewart who had authored the contemptuously cynical opinions in Wilkinson and Braden and joined Whittaker’s opinion in McPhaul wrote an opinion joined by Warren, Douglas, Black, and Brennan reversing Deutch’s conviction on a slender technicality. With nary a word about Bryan,173 Stewart brushed aside the point that Deutch had not raised an objection to the subcommittee’s inquiry’s pertinence at the hearing.174 Ignoring (without addressing or overturning) the still-operative rule that pertinence was a question of law,175 and his own pronouncement on the pertinence of a question as a matter of law in Wilkinson,176 Stewart wrote that, objection or no, the government still had the burden of proving pertinence at trial beyond a reasonable doubt—and to prove not only that the question was pertinent, but that its pertinence had been brought home to the witness such that his refusal to answer evinced criminal intent.177 As Ithaca is not in the Albany area, he continued, the government failed to prove that a question about Cornell’s Marxist faculty and students was pertinent to Albany’s labor unions.178 Justice Stewart, born in Michigan and having practiced law in Ohio,179 apparently did not accept Justice Harlan’s suggestion that “in common usage, at least among New Yorkers, ‘Albany area’ would be regarded as aptly descriptive of ‘upstate’ New York.”180 So it cannot be said that the law compelled Justice Stewart to take the position he did in Deutch. But that makes Wilkinson and Braden seem all the more thymotic.
VI. Ending McCarthyite Investigations Through Formalism
Chief Justice Warren did not find himself in the minority on any case concerning McCarthyite congressional investigations after 1961.181Deutch represented the last case on the issue in which Justices Frankfurter and Whittaker participated. The latter was replaced by Justice Byron White, but the former’s successor was Justice Arthur Goldberg. Aside from Yellinv. United States,182 Warren now had the support of Justice Stewart. Indeed, not counting Yellin, Stewart was the only justice to vote with the majority on every case involving contempt of Congress between 1958 and 1966, when the last major Warren-era case was decided.183 The cases in which Stewart voted with Warren focused on criminal procedure, but as demonstrated by McPhaul and Deutch, Stewart was perfectly willing to force the rules of criminal procedure to bend to his desired result.
The Court next turned to six cases dating back to 1955 involving both HUAC and SSIS. In Russell v. United States, the Court reversed all six convictions since the indictments had failed to state “the question under congressional committee inquiry as found by the grand jury,” thus preventing the courts from discerning whether the questions the witnesses refused to answer were pertinent and whether the trial jury convicted on the same theory upon which the grand jury had indicted.184 Never mind that the Court had never required an indictment to include the subject under inquiry in the previous 105 years of the contempt of Congress statute,185 or that the courts were liberalizing pleading standards in criminal indictments, not enforcing technicalities.186 Even a defendant who failed to raise the issue of the indictment with the Court of Appeals or make any argument concerning it to the Supreme Court could have his conviction overturned as a matter of plain error.187 Justice Stewart’s majority opinion in Russell was joined by Warren, Douglas, Black, and Brennan.188
Douglas wrote separately to again fly the flag of free expression and association: “[w]hile I join the opinion of the Court, I think it is desirable to point out that in a majority of the six cases that we dispose of today no indictment, however drawn, could in my view be sustained under the requirements of the First Amendment.”189 The committees had expressly targeted the New York Times, and there could be no valid legislative purpose where Congress was powerless to legislate (such as a restriction on the freedom of the press).190
What is surprising is that no one took up that flag the following year in Yellin.191 In that case, the Chief Justice did not enjoy Stewart’s support (or that of Clark, Harlan, or White). Justice Goldberg, however, provided the crucial fifth vote. Yet the majority opinion, admitting that the Court had granted certiorari precisely because of the importance of the constitutional issues, decided the case on nearly inscrutable technical grounds.192 Edward Yellin did not want to be publicly embarrassed by his testimony, so he telegraphed HUAC prior to appearing, asking that its subcommittee enter into executive session to receive his testimony.193 HUAC’s Rule IV required an executive session if a majority of the committee or subcommittee believed, among other things, that “a public hearing might … unjustly injure [the witness’s] reputation.”194 But HUAC’s Staff Director—rather than HUAC itself—denied Yellin’s request.195 On this slender reed, Warren built an argument that Rule IV created an individual right to have the committee or subcommittee consider a witness’s request for executive session196 and that the only means of effectuating this right was to refuse to testify when it was violated.197
Warren seems to have had in mind the practice of asking to be held in contempt in order to test the validity of a court order. Yellin had not, however, refused to testify on the grounds of not having had his request for executive session considered, or even mentioned the issue of executive session at all.198
Given that Warren could get five votes for his tortured logic in Yellin, one has to wonder why he could not have gotten five votes for the much more straight-forward propositions that HUAC’s nebulous mandate made the crime of failing to answer a “pertinent” question unconstitutionally vague and that inquiries into the political beliefs and associations of private citizens can serve no valid legislative purpose (both as suppressing the exercise of free expression and as an intrusion into the realm of the judiciary, viz. punishment). Warren, Douglas, Black, and Brennan had signed on to both propositions in their dissents from Barenblatt.199 They had reiterated their concerns in their dissents from Braden200 and Wilkinson.201 Goldberg was certainly not afraid to strike down aspects of McCarthyism on First Amendment grounds,202 and he had told his wife that he intended to be an activist justice.203
One possibility for why the Court did not tackle the First Amendment issue in Yellin was that one of the questions Yellin had refused to answer involved his residence prior to 1957.204 Since his sentences were to run concurrently, his refusal to answer a single pertinent question would uphold the conviction,205 a fact that had condemned witnesses in the past.206 Attacking the subcommittee’s power to ask him any questions at all (because of its failure to follow its own procedures regarding an executive session) would presumably get around this difficulty.
But that explanation cannot suffice regarding the Court’s limited holding in Gojack v. United States.207 Gojack was one of the six defendants whose convictions had been reversed in Russell, and he had since been reindicted and re-convicted.208 The American Civil Liberties Union asked the Court to overrule Barenblatt, noting that the threat of Communism had diminished and could no longer be used to justify curtailing free expression.209 In a unanimous opinion by Justice Abe Fortas, the Court nevertheless expressly refused to revisit Barenblatt, instead finding that the HUAC subcommittee’s subject of inquiry as stated in Gojack’s indictment had not been expressly authorized by HUAC itself, and so Gojack could not be guilty of contempt for refusing to answer questions put to him by that subcommittee.210 The Court did not touch the question of whether HUAC could have authorized the subcommittee’s line of inquiry, except to note that Rumely prevented HUAC from doing so retroactively.211 Black alone wrote separately to say that he would take the opportunity to hold “that the House Un-American Activities Committee’s inquiries here amounted to an unconstitutional encroachment on the judicial power for reasons stated in his dissent in Barenblatt v. United States.”212
It is unlikely that Fortas was unwilling as a matter of principle to provide the fifth vote to overrule Barenblatt on the basis of that case’s dissenting opinions. While in private practice, when Senator McCarthy had not yet been censured, Fortas had written, “the [congressional] hearing has become a weapon of persecution, a useful tool to the demagogue, a device for the glory of the prosecutor and of shame for the accused.”213 He had represented those dragged before the McCarthyite congressional committees.214 He re-iterated the holding in Watkins that “there is no congressional power to investigate merely for the sake of exposure or punishment, particularly in the First Amendment area,” albeit in a footnote.215
We must look elsewhere to explain the Court’s refusal to drive a stake through HUAC’s heart. Unfortunately, the Court’s conference notes for Gojack have not been published (nor those for any case discussed in this paper, save Watkins).216
Attacking HUAC would not have been beating a dead horse by 1966. True, it had entered what Walter Goodman was to call its “lean years,”217 but it was still around. The peace movement and the lack of success in Vietnam against which it was directed were being passed off as the work of Communist infiltrators.218 HUAC could always turn its gaze upon the civil rights movement, just as it had shifted its focus from fascists to Communists.219 J. Edgar Hoover, HUAC’s longtime ally,220 was still head of the Federal Bureau of Investigations.221 That is, HUAC might have staged a revival.
Thus, while an outright repudiation of the entire McCarthyite congressional investigatory system would not have come too late, Warren may have held off in order to obtain a unanimous opinion to be used in the future, should the need arise. Regardless of the actual value of unanimous opinions,222 Warren himself valued them highly.223 In Gojack, Warren had an opinion in which Justices Clark, Harlan, Stewart, and White (plus the liberal wing of the Court) agreed that if HUAC was going ruin lives, it had to gets its own hands dirty. no longer could it dispatch a subcommittee to a hotel conference room in Atlanta or Detroit with an open-ended mandate, at least if it wanted the judiciary to condemn recusants.224 The Court did not have to reach the question—although it noted its existence—of whether a subcommittee’s own wide-ranging statements of its purpose made any prosecutions for contempt of Congress void for vagueness.225
If this is the reason why Gojack does not read like the Barenblatt, McPhaul, Wilkinson, and Braden dissents, it means that Gojack represented a real alteration in Warren’s strategic thinking about congressional investigative committees, McCarthyite or otherwise. The decision would mark a return, not to Watkins and its grand pronouncements,226 but to the early days of Quinn, Emspak, and Bart, when the Court demanded that Congress cross every t and dot every i. It would be a return to the limits that the Vinson Court was willing to enforce against Congress,227 in one case even regarding Communists.228 Congress may not investigate in order to right individual wrongs, only to inform itself so that it can exercise its functions intelligently.229 Each house can use its own bar to coerce recalcitrant witnesses,230 but if it wants to utilize the judiciary’s power to punish, it must play by the judiciary’s rigid, formalistic rules.231 That was the Warren Court’s final word on the subject of congressional investigative committees.