Hugo Black

“ Read in this context, the dictum on which the Court relies affords no support whatever for its conclusion here that a subpoena, of itself, imposes the amorphous duty of 'appropriate action' to get others to produce. ”

“ Under the Tot rule, the minimum justification for such a presumption would be general experience that the most insignificant member of a board has power, if she 'does all she can,' to secure board production of documents held by its custodian. Experience not only fails to support this premise; as any one familiar with the loose-jointed structure of nonprofit associations should know, most members or most boards are wholly subordinate to the executive secretary and the chairman. ”

“ It should be noted, however, that an order to the board as an entity necessarily implies joint action; one addressed to an individual member does not. Moreover, the former is sufficiently specific if it tells the board exactly what to do; the latter must tell the individual what to do. In either case, the recipient must have power to do what is ordered before punishment is justified.↑ While a subpoena was also addressed to the board as an entity, there is utterly no evidence that Fleischman ever knew of it. ”

“ Thus there is no question that Fleischman's conviction could be sustained if there had been sufficient evidence that she actually aided or encouraged the custodian's refusal to produce, or conspired to accomplish that result. [8] And in the rare instance where these sanctions seem unlikely to secure compliance, Congress can always fall back upon its arsenal of supplementary orders enforced by congressional contempt proceedings: [9] officers with authority to call a board meeting can be ordered to do so, and board members can be ordered to vote for resolutions calculated to foster production. ”

“ A command to produce is not a command to get others to produce or assist in producing. Of course Congress, like a court, has broad powers to supplement its subpoena with other commands requiring the witness to take specific affirmative steps reasonably calculated to remove obstacles to production. But even though disobedience of such supplementary orders can be punished at the bar of Congress as contempt, Jurney v. ”

“ Nor does Fleischman's testimony, even if admissible, support the inferences drawn from it by this Court. Weighty significance is attached to her refusal to say how she would vote on the question of production if a board meeting were held. Suffice it to say that no meeting had been held following her receipt of the subpoena, no future meeting had any relevance whatever to the past offense with which she was charged, and the subpoena did not order her to take action at a board meeting anyway. See part I supra. ”

“ Nothing in the Wilson opinion can fairly be interpreted as supplanting, or even casting doubt on, the traditional rule that failure to take action required by an order can be punished only if the action is clearly, specifically, and unequvocally commanded by that order. ”

“ If that was what the Committee wanted, it could have ordered a meeting itself.↑ This theory sharply contrasts with the established principle that corporate and association officials, like other persons, can be held guilty only for their own crime, and not for the crimes of their associates in which there is no proof that they participated. Any contrary doctrine is a startling innovation in the laws of this country. ”

“ But the Court, without even attempting to support her conviction on this theory, substitutes a theory involving completely different problems of proof and evidence. [11] The issue of whether Fleischman had failed to attempt to persuade others to produce was not being tried, and there was no reason for her to introduce evidence concerning it. The question on review is not whether the record as a whole exudes a general impression of guilt, but whether the evidence supports a finding of guilt of the issues presented to the jury by the trial judge's charge, Bollenbach v. ”

“ This is one of the 'many significant respects' in which such associations obviously differ from business corporations. See United States v. White, 322 U.S. 694, 697, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542, 152 A.L.R. 1202. ”