[House Rules Manual -- House Document No. 104-272]
[From the U.S. Government Printing Office Online Database]
[Pages 155-160]
[DOCID:hrmanual-20]
sec. xiii.--examination of witnesses.
Common <<NOTE: Sec. 341. Common fame as ground for
investigation.>> fame is a good ground for the House to proceed by
inquiry, and even to accusation. Resolution House of Commons, 1 Car., 1,
1625; Rush, L. Parl., 115; Grey, 16-22, 92; 8 Grey, 21, 23, 27, 45.
In the House of Representatives common fame has been held sufficient
to justify procedure for inquiry (III, 2701), as in a case wherein it
was stated on the authority of ``common rumor'' that a Member had been
menaced (III, 2678). The House also has voted to investigate with a view
to impeachment on the basis of common fame, as in the cases of Judges
Chase (III, 2342), Humphreys (III, 2385), and Durell (III, 2506).
<<NOTE: Sec. 342. The production of witnesses at an inquiry.>>
Witnesses are not to be produced but where the House has previously
instituted an inquiry, 2 Hats., 102, nor then are orders for their
attendance given blank. 3 Grey, 51.
In the House of Representatives witnesses are summoned in pursuance
and by virtue of the authority conferred on a committee by the House to
send for persons and papers (III, 1750). Even in cases wherein the rules
give to certain committees the authority to investigate without securing
special permission, authority must be obtained before the production of
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testimony may be compelled (IV, 4316). The rules require that subpoenas
issued by order of the House be signed by the Speaker (clause 4 of rule
I) and attested and sealed by the Clerk (clause 3 of rule III). However,
in clause 2(m) of rule XI the House has authorized any committee or
subcommittee to issue a subpoena when authorized by a majority of the
members of the committee or subcommittee voting, a majority being
present. A committee may also delegate the authority to issue subpoenas
to the chairman of a full committee. Authorized subpoenas are signed by
the chairman of the committee or by any other member designated by the
committee. Sometimes the House authorizes issue of subpoenas during a
recess of Congress and empowers the Speaker to sign them (III, 1806),
and in one case the two Houses, by concurrent resolution, empowered the
Vice President and Speaker to sign during a recess (III, 1763). (See
Barry v. U.S. ex. rel. Cunningham, 279 U.S. 597; McGrain v. Daugherty,
273 U.S. 135; Sinclair v. United States, 279 U.S. 263).
When <<NOTE: Sec. 343. Examination of witnesses in the House and in
committee.>> any person is examined before a committee or at the bar of
the House, any Member wishing to ask the person a question must address
it to the Speaker or chairman, who repeats the question to the person,
or says to him, ``You hear the question--answer it.'' But if the
propriety of the question be objected to, the Speaker directs the
witness, counsel, and parties to withdraw; for no question can be moved
or put or debated while they are there. 2 Hats., 108. Sometimes the
questions are previously settled in writing before the witness enters.
Ib., 106, 107; 8 Grey, 64. The questions asked must be entered in the
journals. 3 Grey, 81. But the testimony given in answer before the House
is never written down; but before a committee, it must be, for the
information of the House, who are not present to hear it. 7 Grey, 52,
334.
The Committee of the Whole of the House of Representatives was charged
with an investigation in 1792, but the procedure was wholly exceptional
(III, 1804), although a statute still empowers the Chairman of the
Committee of the Whole, as well as the Speaker, chairmen of select or
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standing committees, and Members to administer oaths to witnesses (2
U.S.C. 191; III, 1769). Most inquiries, in the modern practice, are
conducted by select or standing committees, and these in each case
determine how they will conduct examinations (III, 1773, 1775). Clause
2(k) of rule XI, contains provisions governing certain procedures at
investigative hearings by committees (Sec. 712, infra). In one case a
committee permitted a Member of the House not of the committee to
examine a witness (III, 2403). Usually these investigations are reported
stenographically, thus making the questions and answers of record for
report to the House. To sustain a conviction of perjury, a quorum of a
committee must be in attendance when the testimony is given (Christoffel
v. United States, 338 U.S. 84). Certain criminal statutes make it a
felony to give perjurious testimony before a Congressional committee (18
U.S.C. 1621), to intimidate witnesses before committees (18 U.S.C.
1505), or to make false statements in any matter within the jurisdiction
of the executive, legislative, or judicial branch of the Government of
the United States (18 U.S.C. 1001).
Another provision of the Federal criminal code (18 U.S.C. 6005)
provides for ``use'' immunity for certain witnesses before either House
or committees thereof as follows:
``Sec. 6005. Congressional Proceedings.
``(a) In the case of any individual who has been or may be called to
testify or provide other information at any proceeding before or
ancillary to either House of Congress, or any committee, or any
subcommittee of either House, or any joint committee of the two Houses,
a United States district court shall issue, in accordance with
subsection (b) of this section, upon the request of a duly authorized
representative of the House of Congress or the committee concerned, an
order requiring such individual to give testimony or provide other
information which he refuses to give or provide on the basis of his
privilege against self-incrimination, such order to become effective as
provided in section 6002 of this part.
``(b) Before issuing an order under subsection (a) of this section, a
United States district court shall find that--
``(1) in the case of a proceeding before or ancillary to
either House of Congress, the request for such an order has been
approved by an affirmative vote of a majority of the Members
present of that House;
``(2) in the case of a proceeding before or ancillary to a
committee or a subcommittee of either House of Congress or a
joint committee of both Houses, the request for such an order
has been approved by an affirmative vote of two-thirds of the
members of the full committee; and
``(3) ten days or more prior to the day on which the request
for such an order was made, the Attorney General was served with
notice of an intention to request the order.
``(c) Upon application of the Attorney General, the United States
district court shall defer the issuance of any order under subsection
(a) of this
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section for such period, not longer than twenty days from
the date of the request for such order, as the Attorney General may
specify.''.
The <<NOTE: Sec. 344. Earlier and later practice as to inquiries at
the bar of the House.>> House, in its earlier years, arraigned and tried
at its bar persons, not Members, charged with violation of its
privileges, as in the cases of Randall, Whitney (II, 1599-1603),
Anderson (II, 1606), and Houston (II, 1616); but in the case of Woods,
charged with breach of privilege in 1870 (II, 1626-1628), the respondent
was arraigned before the House, but was heard in his defense by counsel
and witnesses before a standing committee. At the conclusion of that
investigation the respondent was brought to the bar of the House while
the House voted his punishment (II, 1628). The House has also arraigned
at its bar contumacious witnesses before taking steps to punish by its
own action or through the courts (III, 1685). In examinations at its bar
the House has adopted forms of procedure as to questions (II, 1633,
1768), providing that they be asked through the Speaker (II, 1602, 1606)
or by a committee (II, 1617; III, 1668). And the questions to be asked
have been drawn up by a committee, even when put by the Speaker (II,
1633). In the earlier practice the answer of a witness at the bar was
not written down (IV, 2874); but in the later practice the answers
appear in the journal (III, 1668). The person at the bar withdraws while
the House passes on an incidental question (II, 1633; III, 1768). (See
McGrain v. Dougherty, 273 U.S. 135; Barry v. U.S. ex. rel. Cunningham,
279 U.S. 597; Jurney v. MacCracken, 294 U.S. 125).
If <<NOTE: Sec. 345. Procuring attendance of a witness in custody of
the other House.>> either House have occasion for the presence of a
person in custody of the other, they ask the other their leave that he
may be brought up to them in custody. 3 Hats., 52.
A <<NOTE: Sec. 346. Members as witnesses.>> Member, in his place,
gives information to the House of what he knows of any matter under
hearing at the bar. Jour. H. of C., Jan. 22, 1744-5.
At an examination at the bar of the House in 1795 both the written
information given by Members and their verbal testimony were required to
be under oath (II, 1602). In a case not of actual examination at the
bar, but wherein the House was deliberating on a proposition to order
investigation, it demanded by resolution that certain Members produce
papers and information (III, 1726, 1811). Members often give testimony
before committees of investigation, and in at least one case the Speaker
has thus appeared (III, 1776). But in a case wherein a committee
summoned a Member to testify as to a statement made by him in debate he
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protested that it was an invasion of his constitutional privilege (III,
1777, 1778; see also H. Rept. 1372, 67th Cong. and Cong. Rec. 5, 1923,
pp. 2415-23). In one instance the chairman of an investigating committee
administered the oath to himself and testified (III, 1821). The House,
in an inquiry preliminary to an impeachment trial, gave leave to its
managers to examine Members, and leave to its Members to attend for the
purpose (III, 2033).
Either <<NOTE: Sec. 347. Method of obtaining testimony of a Member of
the other House.>> House may request, but not command, the attendance of
a Member of the other. They are to make the request by message of the
other House, and to express clearly the purpose of attendance, that no
improper subject of examination may be tendered to him. The House then
gives leave to the Member to attend, if he choose it; waiting first to
know from the Member himself whether he chooses to attend, till which
they do not take the message into consideration. But when the peers are
sitting as a court of criminal judicature, they may order attendance,
unless where it be a case of impeachment by the Commons. There it is to
be a request. 3 Hats., 17; 9 Grey, 306, 406; 10 Grey, 133.
The House of Representatives and the Senate have observed this rule;
but it does not appear that they have always made public ascertainment
of the willingness of the Member to attend (III, 1790, 1791). In one
case the Senate laid aside pending business in order to comply with the
request of the House (III, 1791). In several instances House committees,
after their invitations to Senators to appear and testify had been
disregarded, have issued subpoenas. In such cases the Senators have
either disregarded the subpoenas, refused to obey them, or have appeared
under protest (III, 1792, 1793). In one case, after a Senator had
neglected to respond either to an invitation or a subpoena the House
requested of the Senate his attendance and the Senate disregarded the
request (III, 1794). Where Senators have responded to invitations of
House committees, their testimony has been taken without obtaining
consent of the Senate (III, 1793, 1795, footnote).
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Counsel <<NOTE: Sec. 348. Admission of counsel.>> are to be heard only
on private, not on public, bills and on such points of law only as the
House shall direct. 10 Grey, 61.
In 1804 the House admitted the counsel of certain corporations to
address the House on pending matters of legislation (V, 7298), and in
1806 voted that a claimant might be heard at the bar (V, 7299); but in
1808, after consideration, the House by a large majority declined to
follow again the precedent of 1804 (V, 7300). In early years counsel in
election cases were heard at the bar at the discretion of the House (I,
657, 709, 757, 765); but in 1836, after full discussion, the practice
was abandoned (I, 660), and, with one exception in 1841 (I, 659), has
not been revived, even for the case of a contestant who could not speak
the English language (I, 661). Counsel appear before committees in
election cases, however. Where witnesses and others have been arraigned
at the bar of the House for contempt, the House has usually permitted
counsel (II, 1601, 1616; III, 1667), sometimes under conditions (II,
1604, 1616); but in a few cases has declined the request (II, 1608; III,
1666, footnote). In investigations before committees counsel usually
have been admitted (III, 1741, 1846, 1847), sometimes even to assist a
witness (III, 1772), and clause 2(k)(3) of rule XI now provides that
witnesses at investigative hearings may be accompanied by their own
counsel for the purpose of advising them concerning their constitutional
rights (Sec. 712). In examinations preliminary to impeachment counsel
usually have been admitted (III, 1736, 2470, 2516) unless in cases
wherein such proceedings were ex parte. During its investigation into
charges of impeachment against President Nixon, the Committee on the
Judiciary admitted counsel to the President to be present, to make
presentations and to examine witnesses during investigatory hearings (H.
Rept. 93-1305, Aug. 20, 1974, p. 29219).
At one time the House required all counsel or agents representing
persons or corporations before committees to be registered with the
Clerk (III, 1771). The Federal Regulation of Lobbying Act (Title III of
the Legislative Reorganization Act of 1946) requires all lobbyists to
register with the Clerk of the House and the Secretary of the Senate (2
U.S.C. 267).