Fred M. Vinson

“ Every exemption from testifying or producing records thus presupposes a very real interest to be protected. If a privilege based upon that interest is asserted its validity must be assessed. Since we assume in this case that the subpoenas refer to the production of papers before the Committee qua committee, we agree that respondent could rightfully have demanded attendance of a quorum of the Committee and declined to testify or to produce documents so long as a quorum was not present. But the courts need not treat as important that which the witness obviously regarded as unimportant. ”

“ Moreover, it would, in effect, secure to the bankrupt the immunity in question for violating his part of the compact, namely, to testify-that is, to testify truthfully-by virtue of which he secured a right to the immunity. We are not willing to impute to Congress any such contradictory and absurd purpose. The words 'any criminal proceeding' cannot sensibly or reasonably be construed so literally and generally as to include the criminal proceeding provided by law for false swearing in giving his testimony. ”

“ It is argued, however, that even if the Government is not required to prove presence of a quorum affirmatively, lack of a quorum is a defense raising material questions of fact which should have been submitted to the jury. The theory is that if the subpoena required production of the records before the Committee on Un-American Activities qua committee, respondent could not have complied with the subpoena in the absence of a quorum had she wished to do so, and therefore her default is not wilful, albeit deliberate and intentional. ”

“ Suppose one who has been summoned to produce papers fails to deliver them as required but refuses to give any reason. May he defend a prosecution for wilful default, many months later, on the ground that he had not been given a sufficient time to gather the papers? We think such a contention hardly tenable. Yet, at the return date, compliance with the subpoena was 'impossible' just as in the present case. To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of its authority and an obstruction of its procxesses. ”

“ Of course a witness may always change his mind. A default does not mature until the return date of the subpoena, whatever the previous manifestations of intent to default. But when the Government introduced evidence in this case that respondent had been validly served with a lawful subpoena directing her to produce records within her custody and control, and that on the day set out in the subpoena she intentionally failed to comply, it made out a prima facie case of wilful default. ”

“ On the other hand, persons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest in the orderly operation of legislative and judicial machinery. A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. ”

“ If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned. ”

“ The contention now made would impute to Congress an intent to deprive the courts of the very information upon which the House had acted in the case giving rise to the statute.↑ Representative Orr: 'The bill provides that no persons called before that committee to testify before them shall be subjected to criminal prosecution for any offense they may have committed, and for which their testimony would furnish the basis of an indictment.' Cong.Globe, 34th Cong., 3d Sess. ”

“ While she did not introduce any direct evidence at the trial, respondent appropriately raised the defense by cross-examination and by her motions, requests and objections.
Ordinarily, one charged with contempt of court for failure to comply with a court order makes a complete defense by proving that he is unable to comply. A court will not imprison a witness for failure to produce documents which he does not have unless he is responsible for their unavailability, cf. ”

“ Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110.↑ R.S. § 860 applied to evidence obtained from a party or witness in any 'judicial proceeding' and provided that such evidence should not be used against such person in any criminal proceeding.↑ See Brown v. Walker, 1896, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819.↑ H.R.Rep.No.266, 61st Cong., 2d Sess., which was concurred in by the Senate Committee reporting the repealer, states:↑ In 1938 Congress made minor amendments to the statutes in question without recognizing their inconsistency with the Counselman case. 52 Stat. 943. ”