Yellin v. United States, 35

• Decision Date: 17 June 1963
• Docket Number: No. 35,35
• Parties: Edward YELLIN, Petitioner, v. UNITED STATES. Re
• Court: U.S. Supreme Court

374 U.S. 109

83 S.Ct. 1828

10 L.Ed.2d 778

Edward YELLIN, Petitioner,

v UNITED STATES.

No. 35.

Reargued Dec. 6, 1962.

Decided June 17, 1963.

[Syllabus from pages 109-110 intentionally omitted] Victor Rabinowitz, New York City, for petitioner.

Archibald Cox, Solicitor Gen., for respondent.

Mr. Chief Justice WARREN delivered the opinion of the Court.

This contempt of Congress case, stemming from investigations conducted by the House Committee on Un-American Activities, involves, among others, questions of whether the House Committee on Un-American Activities failed to comply with its rules and whether such a failure excused petitioner's refusal to answer the Committee's questions.

Petitioner Edward Yellin was indicted in the Northern District of Indiana on five counts of willfully refusing to answer questions put to him by a Subcommittee of the House Committee on Un-American Activities (hereafter Committee) at a public hearing. He was convicted, under 2 U.S.C. § 192, of contempt of Congress on four counts. He was sentenced to four concurrent terms of imprisonment, each for one year, and fined $250. The Court of Appeals for the Seventh Circuit affirmed. 7 Cir., 287 F.2d 292. Since the case presented constitutional questions of continuing importance, we granted certiorari. 368 U.S. 816, 82 S.Ct. 84, 7 L.Ed.2d 23. However, because of the view we take of the Committee's action, which was at variance with its rules, we do not reach the constitutional questions raised.¹

The factual setting is for the most part not in dispute. The Committee was engaged, in 1958, in an investigation of so-called colonization by the Communist Party in basic industry. One of its inquiries forcused upon the steel industry in Gary, Indiana, where petitioner was employed. Having information that petitioner was a Communist, the Committee decided to call Yellin and question him in a public rather than an executive session. The Committee then subpoenaed petitioner on January 23, 1958. His attorney, Mr. Rabinowitz, sent a telegram to the Committee's general counsel, Mr. Tavenner, on Thursday, February 6, 1958. The telegram asked for an executive session because 'testimony needed for legislative * * * purposes can be secured in executive session without exposing witnesses to publicity.' Since the Committee and Mr. Tavenner had left Washington, D.C., for Gary, the telegram was answered by the Committee's Staff Director. His reply read:

'Reurtel (Re your telegram?) requesting executive session in lieu of open session for Edward Yellin and Nicholas Busic. Your request denied.

'Richard Arens Staff Director'

According to Congressman Walter, the Chairman of the Committee, Mr. Arens did not have authority to take such action.

Petitioner's counsel also sought to bring the matter to the Committee's attention when it commenced its public hearing the following Monday, February 10, 1958. His efforts to have the telegrams read into the record were cut short by Congressman Walter.² Mr. Rabinowitz would not have been justified in continuing, since Committee rules permit counsel only to advise a witness, not to engage in oral argument with the Committee. Rule VII(B). In any event, Congressman Walter was not interested in discussing the content of the telegrams. From his sometimes conflicting testimony at trial, it appears he did not even know what the telegrams said.³ And though Congressman Walter said the Committee would consider in executive session whether to make the telegrams a part of the record, it appears that whatever action was taken was without knowledge of the telegrams' contents.⁴

It is against this background that the Committee's failure to comply with its own rules must be judged. It has been long settled, of course, that rules of Congress and its committees are judicially cognizable. Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826; United States v. Smith, 286 U.S. 6, 52 S.Ct. 475, 76 L.Ed. 954; United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321. And a legislative committee has been held to observance of its rules, Christoffel v. United States, supra, just as, more frequently, executive agencies have been. See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403.

The particular Committee Rule involved, Rule IV, provides in part:

'IV—Executive and Public Hearings:

'A—Executive:

'(1) If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing.

'B—Public Hearings:

'(1) All other hearings shall be public.' (Emphasis added.)

The rule is quite explicit in requiring that injury to a witness' reputation be considered, along with danger to the national security and injury to the reputation of third parties, in deciding whether to hold an executive session.

At the threshold we are met with the argument that Rule IV was written to provide guidance for the Committee alone and that it was not designed to confer upon witnesses the right to request an executive session and the right to have the Committee act, either upon that request or on its own, according to the standards set forth in the rule. It seems clear, from the structure of the Committee's rules and from the Committee's practice, that such is not the case.

The rules are few in number and brief—all 17 take little more than six pages in the record. Yet throughout the rules the dominant theme is definition of the witness' rights and privileges. Rule II requires that the subject of any investigation be announced and that information sought be 'relevant and germane to the subject.' Rule III requires that witnesses be subpoenaed 'a reasonably sufficient time in advance' to allow them a chance to prepare and employ counsel. Rule VI makes available to any witness a transcript of his testimony—though at his expense. Rule VII gives every witness the privilege of having counsel advise him during the hearing. Rule VIII gives a witness a reasonable time to get other coun- sel, if his original counsel is removed for failure to comply with the rules. Rule X makes detailed provision for those persons who have been named as subversive, Fascist, Communist, etc., by another witness. Such persons are given an opportunity to present rebuttal testimony and are to be 'accorded the same privileges as any other witness appearing before the Committee.' Rule XIII permits any witness to keep out of the range of television cameras. Finally, Rule XVII requires that each witness 'shall be furnished' a copy of the rules. All these work for the witness' benefit. They show that the Committee has in a number of instances intended to assure a witness fair treatment, viz., the right to advice of counsel, or protection from undue publicity, viz., the right not to be photographed by television cameras. Rule IV, in providing for an executive session when a public hearing might unjustly injure a witness' reputation, has the same protective import. And if it is the witness who is being protected, the most logical person to have the right to enforce those protections is the witness himself.

The Committee's practice reinforces this conclusion. Congressman Walter testified that the Committee 'always' gave due consideration to requests for executive sessions.⁵ Weight should be given such a practice of the Committee in construing its rules, United States v. Smith, 286 U.S. 6, 33, 52 S.Ct. 475, 477, 76 L.Ed. 954. That the Committee has entertained, and always does entertain, requests for executive sessions reinforces the conclusion that the Committee intended in Rule IV to give the individual witness a right to some consideration of his efforts to protect his reputation.

It must be acknowledged, of course, that Rule IV does not provide complete protection. The Committee may not be required by its rules to avoid even unjust injury to a witness' reputation. Assuming that the Committee decides to hold an executive session, to Committee need do so only 'for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing.' (Emphasis added.) By inclusion of the word 'necessity' the rule may contemplate cases in which the Committee will proceed in a public hearing despite the risk or even probability of injury to the witness' reputation.⁶ That petitioner may be questioned in public, even after an executive session has been held, does not mean, however, that the Committee is freed from considering possible injury to his reputation. The Committee has at least undertaken to consider a witness' reputation and the efforts a witness makes to protect it, even though the Committee may in its discretion nevertheless decide thereafter to hold a public hearing. The Committee failed in two respects to carry out that undertaking in Yellin's case.

First, it does not appear from Congressman Walter's testimony that the Committee considered injury to the witness' reputation when it decided against calling Yellin in executive session:

'Q. (By Mr. RABINOWITZ) The Committee does sometimes hold executive sessions, doesn't it?

'A. (By Congressman WALTER) Yes.

'Q. And what are the considerations which the Committee uses in determining whether to hold executive sessions?

'A. This is usually does when the Committee is fearful lest a witness will mention the name of somebody against whom there is no sworn testimony, and in order to prevent the name of somebody being mentioned in public that we are not sure has been active in the conspiracy, at least...