[110th Congress House Rules Manual -- House Document No. 109-157]
[From the U.S. Government Printing Office Online Database]
[DOCID:hruletx-18]
[Page 165-170]
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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 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 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
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 2 of rule II). 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
McGrain v. Daugherty, 273 U.S. 135 (1927); Barry v. U.S. ex. rel.
Cunningham, 279 U.S. 597 (1929); Sinclair v. United States, 279 U.S. 263
(1929). Under section 2954 of title 5, United States Code, an executive
agency, if so requested by the Committee on Government Operations (now
Oversight and Government
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Reform), or any seven members thereof, shall submit any information
requested of it relating to any matter within the jurisdiction of the
committee.
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
Journal. 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 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 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 hearings by
committees (Sec. 803, 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
(1949). 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),
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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 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 also has arraigned
at its bar contumacious
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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 (1927); Barry v. U.S. ex. rel. Cunningham, 279 U.S. 597 (1929);
Jurney v. MacCracken, 294 U.S. 125 (1935).
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
protested that it was an invasion of his constitutional privilege (III,
1777, 1778; see also H. Rept. 67-1372, and Jan. 25, 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
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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 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).
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 wit
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nesses 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 hearings
may be accompanied by their own counsel for the purpose of advising them
concerning their constitutional rights (Sec. 803, infra). In
examinations preliminary to impeachment counsel usually have been
admitted (III, 1736, 2470, 2516) unless in cases wherein such
proceedings were ex parte. During impeachment investigations against
President Nixon and President Clinton, 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; H. Rept. 105-830, Dec. 16, 1998, p.
27819).
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 Lobbying Disclosure Act of 1995 requires all
lobbyists to register with the Clerk of the House and the Secretary of
the Senate (2 U.S.C. 1603).