Tom C. Clark

“ The Court's holding is contrary to the uniform course of decisions in the lower federal courts. The Court of Appeals for the District of Columbia Circuit, sitting first as a panel and later en banc, has upheld 'pertinency' allegations which, like the present indictment, did not identify the particular subject being investigated. ”

“ The reasons given by the Court for its sudden holding, which unless confined to contempt of Congress cases bids fair to throw the federal courts back to an era of criminal pleading from which it was thought they had finally emerged, are novel and unconvincing.
It is first argued that an allegation of 'pertinency' in the statutory terms will not do, because that element is at 'the very core of criminality' under § 192. This is said to follow from what 'our cases have uniformly held.' Ante, 369 U.S., p. 764, 82 S.Ct. p. 1047. I do not so understand the cases on which the Court relies. ”

“ But whether or not the Government has established its case on 'pertinency' is something that must be determined on the record made at the trial, not upon the allegations of the indictment. There is no such thing as a motion for summary judgment in a criminal case. ”

“ A rule has been sown which, as pointed out by Brother HARLAN, has no seeds in general indictment law and which will reap no real benefits in congressional contempt cases. If knowing the subject matter under investigation is actually important to these recalcitrant witnesses, they can utilize the right recognized in Watkins v. ”

“ Moreover the Court does not find these indictments deficient because they failed to allege the 'connective reasoning.'
Beyond these considerations, a defendant has ample means for protecting himself in this regard. By objecting at the committee hearing to the pertinency of any question asked him he may 'freeze' this issue, since the Government's case on this score must then stand or fall on the pertinency explanation given by the committee in response to such an objection. Deutch v. United States, 367 U.S. 456, 472-473, 81 S.Ct. 1587, 1596, 6 L.Ed.2d 963 (dissenting opinion) ; cf. Watkins v. ”

“ Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (TR, p. 2) ; Bart v. United States, 349 U.S. 219, 75 S.Ct. 712, 99 L.Ed. 1016 (TR, p. 108) ; Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997 (TR, p. 4) ; Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (TR, p. 3) ; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (TR, pp. 2-4) ; Knowles v. United States, 108 U.S.App.D.C. 148, 280 F.2d 696 (Cr. No. 1211-56) ; Watson v. United States, 108 U.S.App.D.C. 141, 280 F.2d 689 (Cr. No. 1151-54) ”