167 F.2d 241 (D.C. Cir. 1948), 9602, Barsky v. United States

Docket Nº:9602.
Citation:167 F.2d 241
Opinion Judge:PRETTYMAN, Associate Justice.
Party Name:BARSKY et al. v. UNITED STATES.
Attorney:Mr. O. John Rogge, of Washington, D.C. for appellants. Mr. Osmond K. Fraenkel, of New York City, of the Bar of the State of New York, pro hac vice, by special leave of court, also argued for appellants. Mr. Charles B. Murray, Asst. U.S. Atty., of Washington, D.C., with whom Mr. Goerge Morris Fay,...
Judge Panel:Before EDGERTON, CLARK and PRETTYMAN, Associate Justices. EDGERTON, Associate Justice (dissenting).
Case Date:March 18, 1948
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 241

167 F.2d 241 (D.C. Cir. 1948)

BARSKY et al.



No. 9602.

United States Court of Appeals, District of Columbia.

March 18, 1948

Argued Nov. 24, 1947.

Writ of Certiorari Denied June 14, 1948.

Page 242

See 68 S.Ct. 1511.

Appeal from the District Court of the United States for the District of Columbia.

Edward K. Barsky and others were convicted of willful failure to produce records before a committee of the Congress pursuant to subpoenas and in violation of 2 U.S.C.A. s 192, 72 F.Supp. 58, and they appeal.


See also 72 F.Supp.165.

Page 243

Mr. O. John Rogge, of Washington, D.C. for appellants. Mr. Osmond K. Fraenkel, of New York City, of the Bar of the State of New York, pro hac vice, by special leave of court, also argued for appellants.

Mr. Charles B. Murray, Asst. U.S. Atty., of Washington, D.C., with whom Mr. Goerge Morris Fay, U.S. Atty. and Messrs. John P. Burke and Sidney S. Sachs, Asst. U.S. Attys., both of Washington, D.C., were on the brief, for appellee.

Mr. Belford V. Lawson, Jr., of Washington, D.C., filed a brief on behalf of the National Layers Guild as amicus curiae, urging reversal.

Before EDGERTON, CLARK and PRETTYMAN, Associate Justices.

PRETTYMAN, Associate Justice.

The Supreme Court has denied certiorari, 1948, __ U.S. __, 68 S.Ct. 609, in United States v. Josephson, 2 Cir., 1947, 165 F.2d 82. Nevertheless, because of the nature of the question involved and because we have a division of opinion, we state in full the reasons for our conclusion.

These appellants were indicted, tried before a jury, convicted, and sentenced for willful failure to produce records before a committee of the Congress pursuant to subpoenas, in violation of Section 192 of Title 2 of the United States Code Annotated.1 The indictment alleged that appellants were members of the governing body of an unincorporated association known as the Joint Anti-Fascist Refugee Committee and that, having been subpoenaed by the Congressional Committee known as the Committee on Un-American Activities of the House of Representatives to produce the records of their association relating to the receipt and disbursement of certain money and certain correspondence with persons in foreign countries, they willfully failed to produce those documents.2

Upon the trial it was shown that the Congressional Committee existed by virtue of House Resolution No. 5 of the 79th Congress,3 and that the Joint Anti-Fascist Refugee Committee was a private voluntary association engaged in the collection of funds from the public in this country upon representations that such funds were to be used for relief purposes abroad, and in the disbursement of those funds in foreign countries. It was further shown that the Congressional Committee had received ‘ a large number’ of complaints that the funds collected by appellants' organization were being used for political propaganda and not for relief. It made inquiry of the President's

Page 244

War Relief Control Board and, consistently with suggestions there obtained, requested that one of its investigators be permitted to examine the records of the collection and disbursement of the funds. This request was denied. Testimony, including that of an official of the State Department and a person who said that she had observed the operation of appellants' association abroad, was taken. In effect, this testimony sustained the burden of the complaints. Thereupon the Committee issued the subpoenas above described. Appellants appeared before the Committee but declined to produce, or to cause the production of, the described books and documents. They were thereupon indicted, as above described, and appeal from the judgments upon conviction.

Appellants' first point is that the Resolution creating the Congressional Committee was unconstitutional because it authorized inquiry into political opinion and expression, in violation of the First Amendment.

The Resolution which created this Congressional Committee authorized it by one of three subclauses to investigate ‘ the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution’ .

These appellants were not asked to state their political opinions. They were asked to account for funds. We are unable to visualize the particular in which civil rights are violated by a requirement that persons who collect funds from the public in this country for relief purposes abroad account for the collection and distribution of such funds. Moreover, the fact of the existence of such official bodies as UNRRA and the President's War Relief Control Board, and the then-pending proposals for loans to foreign governments, clearly justified Congressional inquiry into the disbursement abroad of private funds collected in this country avowedly for relief but reasonably represented as being spent for political purposes in Europe.

Appellants' point is not premised upon the specific question asked them but upon the scope of possible inquiry under the Resolution. So we examine the contention in the light of the possibility, indicated by the preliminary data before the Committee, that answers to the inquiry might reveal that appellants were believers in Communism or members of the Communist Party.

The problem thus presented is difficult and delicate. In it we have not only the frequent ‘ real problem of balancing the public interest against private security’ ,4 but in this instance we must do so in the midst of swirling currents of public emotion in both directions. We are presented with extreme declarations in respect to Communists and equally extreme declarations in respect to the Congressional Committee. The duty of the courts is no less than to render judgment with utter detachment.

Congressional powers of investigation have been explored and debated by scholars for many years in the United States and other countries.5 We shall not venture upon a treatise on the subject but confine ourselves to the specific question before us. Nor shall we elaborate by discussion the principles we deem controlling. We state them and leave support of them to the authorities cited.

We think that even if the inquiry here had been such as to elicit the answer

Page 245

that the witness was a believer in Communism or a member of the Communist Party, Congress had power to make the inquiry.

The first phase of the question thus posed concerns the power of the Congress to inquire into the subject described in the above quotation from the Resolution.

Preliminary inquiry has from the earliest times been considered an essential of the legislative process.6 By it are to be determined both the advisability for and the content of legislation. So that even as to ordinary subjects, the power of inquiry by the legislature is coextensive with the power of legislation and is not limited to the scope or the content of contemplated legislation. Constitutional legislation might ensue from information derived by an inquiry upon the subject described in the quotation from H.R.Res. No. 5. That potentiality is the measure of the power of inquiry. 7 The facts is that at least eight legislative proposals have been submitted to the Congress by this Committee as the result of its investigations.8 Obviously, the possibility that invalid as well as valid legislation might ensure from an inquiry does not limit the power of inquiry; invalid legislation might ensure from any inquiry.

The permissible breadth of governmental investigation was indicated many years ago when the Supreme Court held that ‘ the requiring of information concerning a business is not regulation of that business',9 and refused to confine investigation to activities which might be regulated. And that breadth has increased considerably in recent years.10 The Supreme Court has recently held11 that the First Amendment does not preclude a subpoena by an administrative official requiring a newspaper to disclose the interstate distribution of its paper dissemination of its news, or the source and receipt of its advertisements; 12 that it is not necessary that a charge of violation of law be pending, or that the inquiry be limited by ‘ forecasts of the probable results of the investigation’ . The official might, the Court held, make ‘ preliminary investigation of possibly existing violations', so long as the investigation be for a lawfully authorized purpose within the power of Congress to command. The power of Congress to investigate by means of a Committee of its own can be no less restricted than the power which it may validly confer upon an administrative official. In the case at bar we do not approach the wide boundaries indicated by the Supreme Court in that case.

Moreover, the power to inquire into the subject described in this Resolution rests upon a foundation deeper than a mere auxiliary to the ordinary legislative or administrative process. Direct reference to fundamentals is justified in this connection.

The basic concept of the American system, both historically and philosophically, is that government is an instrumentality created by the people, who alone are the original possessors of rights and who alone have the power to create government.13 The choice of the existing form of government was by the people, and resulted from a

Page 246

conviction on their part that it was the best for the purposes of government. That this was a deep conviction and not a temporary fancy is evidenced conclusively by even a casual examination of the historical facts, beginning with the original settlements...

To continue reading