Yellin v. United States/Dissent White

by Byron White

United States Supreme Court

374 U.S. 109

Yellin  v.  United States

 Argued: Dec. 6, 1962. --- Decided: June 17, 1963

Mr. Justice WHITE, with whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.

Petitioner stands convicted of having refused, in violation of 2 U.S.C. § 192, ^[1] to answer four questions asked him by the Committee on Un-American Activities of the House of Representatives. He was sentenced to one year on each count, the sentences to run concurrently, and a fine of $250. The Court of Appeals affirmed unanimously, 7 Cir., 287 F.2d 292.

Pursuant to House of Representatives Rules XI ^[2] and XII, ^[3] the Committee resolved that hearings would be held in Gary, Indiana, to inquire into Communist Party activities in basic industry. ^[4] Petitioner was subpoenaed to appear before the Committee in Gary on February 10, 1958. Four days prior to the hearing, petitioner's counsel sent a telegram to the Committee's counsel requesting that petitioner be questioned in executive session in lieu of an open session. The Staff Director of the Committee responded the same day and denied the request.

Petitioner appeared on the appointed date with counsel. The Committee Chairman began the proceedings by reading the above-quoted resolution and by stating further the purposes of the inquiry. ^[5] The first witness, an organizer and high official in the Communist Party from 1930 to 1950, testified that the Party had begun a policy of infiltrating into basic industry, that Party 'colonizers' were sent to coordinate Party work in these industries, including the steel industry, and that these collonizers were mainly young men from colleges and universities. These colonizers, he continued, would misrepresent their backgrounds in applying for jobs and would conceal their educational qualifications so as to gain jobs alongside other less-educated workers without casting suspicion on their motives.

Petitioner, who had been present for all of the foregoing, was called as the second witness immediately thereafter. After answering preliminary questions as to his name and address and after his counsel requested that the exchange of telegrams concerning the executive session be made part of the record, petitioner was asked the following question:

'Mr. Yellin, where did you reside prior to September 1957?' (Count 1.)

After conferring with counsel, petitioner refused to answer the question. He cited decisions of this Court in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, and asserted that a congressional committee cannot investigate into areas protected by the First Amendment and into areas of personal belief and conscience, that the authorizing rule of the House of Representatives was unduly vague resulting in a denial of due process of law and that the questions he would answer would only be those pertinent to some legislation. He specifically disclaimed reliance on the privilege against self-incrimination. To indicate the pertinency of the question, the Committee's counsel stated that in order to learn anything from petitioner regarding Communist Party activities in the Gary area, it was necessary to know whether he was there over a period of time. When directed to answer the question after this statement, the petitioner again refused on the grounds above stated.

Petitioner was then asked to state his formal education and whether he was a student at the College of the City of New York, which he refused to do and, when directed to answer, added: 'Mr. Tavenner, I will refuse to answer that question under the grounds already stated; but it just occurs to me that if the committee knows all these things, I can't see the purpose or the pertinency of asking me what they consider a known fact. Furthermore, it kind of appears to me as if this line of questioning is merely trying to create an impression and expose me for the sake of merely exposing me and not leading to any valid legislative purpose.' The Committee Chairman, in response, stated: 'I will assure you that that is farthest from the intention of anybody on this committee, and this committee has never, for the mere sake of exposing, asked a question.'

The Committee thereupon received in evidence copies of petitioner's college records showing that he transferred from the College of the City of New York to the University of Michigan in 1948 and that he had applied for employment in a Gary steel mill on June 23, 1949. After continued unproductive questioning, petitioner was asked:

'Will you tell the committee, please, whether or not incidents came to your attention of the colonization of the steel unions in Gary by the Communist Party at any time prior to September 1957?' (Count 2.)

Following another refusal to answer, the Committee's counsel undertook to explain the purpose of the question. ^[6] Again petitioner declined to reply for the reasons he had given. In a similar vein, he refused to answer a good many other questions including the following two:

'Were you a member of the Communist Party on the 23d day of June 1949, which is the date of application filed in your name for employment in Gary?' (Count 3.)

'Will you tell the committee whether or not in 1957 there were present in any of the steel unions at Gary, Indiana, persons who were known to you to have been colonizers of the Communist Party?' (Count 4.)

Petitioner was excused and various other witnesses were called, among them Joseph E. LaFleur who joined and had been active in the Communist Party from 1942 to 1952 at the request of the Federal Bureau of Investigation and who worked in the steel mills in Gary at times pertinent to this inquiry. He identified petitioner as a member of the Communist Party who with other young men participated in organizing Communist Party activities in Gary.

Upon report and recommendation by the Committee, petitioner was cited for contempt by the House of Representatives and was indicted and tried for refusing to answer the four questions designated above by count numbers. The sole government witness at the trial was the Committee's counsel who testified that the purpose of the hearings was to find out how serious the Communist propaganda infiltration was in basic industry, particularly in the steel industry. The Committee wanted information on this subject, he stated, to decide whether to amend various Acts of Congress and, in fact, members of the Committee did introduce several bills around the time of these hearings. ^[7] Prior to calling petitioner, he continued, the Committee had information that petitioner was a member of the Communist Party while at the University of Michigan, that he had applied for employment in Gary without disclosing his college education and that he had been employed in the steel industry in Gary.

The Committee Counsel emphasized that petitioner was summoned with the hope that he would cooperate and that the Committee believed petitioner had information about the colonization activities which had not been presented by any of the other witnesses. 'We know nothing about the actual activities of the Communist Party in the steel plants in Indiana as of the time of this hearing, or shortly before Mr. LaFleur, who did testify (at the Gary hearings), according to my recollection got out of the Communist Party in 1950. This witness, Mr. Yellin, as to whom we had testimony by several people, had been a member of the Communist Party at Michigan University, and had left there and come down and taken employment in Gary.' ^[8]

With respect to the denial of the request for an executive hearing, Committee Counsel testified as follows:

'Q. (By Mr. Rabinowitz.) Then why did you not comply with the request for an executive session?

'A. (By Committee Counsel.) * * * With the information that the Committee had regarding his membership, I would not have recommended-I will say this-I would not have recommended to the Committee, if they had asked, that he be heard in executive session.

'Q. Why not?

'A. Because we knew that he was a member of the Communist Party and he was in a position to give the Committee information, if he wanted to.

'Q. You knew he had been a member of the Communist Party?

'A. Yes.

'Q. Many years before?

'A. Yes.

'Q. You didn't know whether he still was?

'A. If you had come and told me, now, this man has considerable information that he wants to give, that involves other people, and it ought to be thoroughly investigated before being made public, I would certainly have recommended that he be heard in executive session, but you never indicated that he was willing to do anything.

'Q. I did indicate that he wanted an executive session, though, didn't I?

'Q. I say in the way of giving testimony.

'Q. And you did not feel that it was advisable to call an executive session for the purpose of determining whether he was prepared to give testimony, or not?

'A. My recollection is that he was sworn in as a witness, and you were sitting by his side, and at the beginning of the testimony you asked that we make a part of the record the telegrams which you had sent to the Committee. You didn't offer any suggestion then that he would give any information that would be of such a character that it ought to be taken in executive session to protect anybody while we were investigating to see whether the witness was telling the truth, or not.'

Representative Walter of Pennsylvania, the Chairman of the House Un-American Activities Committee and of the Subcommittee which conducted the hearings in Gary, was called by petitioner. As far as he could recall, he did not know of petitioner's telegram asking for an executive session until the opening of the hearing in Gary. He pointed out that the telegram was not addressed to him and he had already departed for Gary when the telegram arrived. He stated that neither the Committee Counsel nor the Staff Director had authority to pass on a request for an executive session and that when the matter of the telegram was raised at the hearings 'it was too late then to raise any question that might have been raised by the telegram.' When asked to explain, he said: 'Well, the Committee already passed on the question of whether or not we would hear Mr. Yellin at a session when the purpose of calling him was discussed, and it was decided then that the rule with respect to an executive session was not applicable because the investigator-and I might say it was Mr. Collins, a former F.B.I. agent, who developed this entire matter, and we were willing to accept his story with respect to the proposed testimony.' Mr. Collins' story, according to Chairman Walter, was 'that the man was a known Communist; that he had been active in the international conspiracy, and that he had deceived his employer; and, furthermore, he came within the category of those people that we were experiencing a great deal of difficulty in finding out about with respect to the colonization.' Congressman Walter further testified that petitioner's counsel at the hearing in Gary 'didn't even there inform me as to the contends of the telegrams,' which had not been sent to him, and also acknowledged that he had interrupted petitioner's counsel since 'it is not the practice of the Committee to hear counsel, and that the function of counsel at Committee hearings is solely to confer with witnesses.'

When asked to state the considerations which the Committee uses in determining whether to hold executive sessions, Chairman Walter explained: 'This is usually done 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 that there isn't sworn testimony to that effect, we have an executive hearing.' He was aware that many witnesses refused to testify but 'it is always worth a chance that somebody will testify * * * occasionally we are very pleasantly surprised at having somebody give us information that is of great value in the drafting of legislation.'

Petitioner's challenge to his conviction is predicated upon, among other matters, ^[9] the claim that by the rules of the Committee he was improperly denied an executive session or at the very least a good-faith consideration of his request for one.

Since petitioner did not refuse to testify at the hearing on the ground that it was a public rather than a private session, it is my view that he is not entitled, at this late stage, to rely upon the Committee's alleged failure to apply its executive session rule to him.

As the courts have repeatedly held, to be available as a defense in a contempt of Congress trial, an objection must have been relied upon and asserted before the congressional committee. United States v. Bryan, 339 U.S. 323, 332-333, 70 S.Ct. 724, 731, 94 L.Ed. 884; United States v. Fleischman, 339 U.S. 349, 352, 70 S.Ct. 739, 741, 94 L.Ed. 906; Barenblatt v. United States, 360 U.S. 109, 123-125, 79 S.Ct. 1081, 1091-1092, 3 L.Ed.2d 1115; McPhaul v. United States, 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136; Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273; Hartman v. United States, 290 F.2d 460 (C.A.9th Cir.); United States v. Kamin, D.C., 136 F.Supp. 791. This is no technical quibble, for there are compelling reasons to require an objection to be pursued before the Committee. It serves the administration of justice to have objections seasonably made in order that asserted errors may be corrected at the earliest possible time. As is the case in proceedings before a trial court, 1 Wigmore (3d ed. 1940) § 18, at 322, the objecting party is required to state his position and afford an opportunity to act upon his claim. 'The practice of withholding all objection until time of trial is not helpful in protecting a witness' right to a valid (hearing). It prevents correction of any error in that respect and profits only the witness who seeks a concealed defect to exploit.' United States v. Bryan, supra, 339 U.S. at 344, 70 S.Ct. at 737 (concurring opinion). Accordingly, if possible damage to petitioner's reputation was a ground for his demanding an executive session under the Committee's rules and for his refusal to answer questions put to him by the Committee, 'a decent respect for the House of Representatives * * * would have required that (he) state (his) reasons * * *. 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 processes.' Id., 339 U.S. at 332-333, 70 S.Ct. at 731.

There is certainly nothing in petitioner's telegram ^[10] which makes out a substantial demand for an executive session. It contains simply the request itself and the unsupported conclusion of petitioner's counsel, who, without knowing the extent or direction of the investigation, insists that petitioner's questioning could as well be conducted in executive session. There is no mention of the Committee rule or the particular grounds upon which the request was founded, nor are there any factual assertions to bring to light considerations which under the rule would call for the executive session, such as facts showing potential damage to his reputation. Indeed, it is difficult to understand how petitioner, at the time of the request, could have anticipated any ground for an executive session under the rule since he had no way of knowing what questions would be asked of him. It was not at all unlikely that petitioner would be called, like any other employee working in the steel mills at that time irrespective of Communist Party affiliation to relate what instances of infiltration he observed while at work. See Question, ante, p. 129. Moreover, the wire was directed to one without authority to grant or deny an executive session and was sent only four days prior to the hearings and after the Subcommittee had departed for Gary.

At the opening of the hearing, Chairman Walter was entirely unfamiliar with the contents of the Wire. And the exchange which occurred at that time, set out in the margin, ^[11] can hardly be construed as a denial of a pointed request for an executive session based upon possible injury to Yellin's reputation. To be sure, Chairman Walter cut off petitioner's counsel immediately, but in terminating the discussion with counsel, the Chairman was simply making it clear that counsel's function before the Committee was to confer with the witness and not to argue with the Committee, which is in accordance with the Committee's rules. It was for the witness, with the help of his attorney, to answer the questions or to state his grounds for refusing to do so. The Chairman in no way indicated that the witness could not take up where counsel had left off.

As the immediately ensuing questioning reveals, ^[12] petitioner had every opportunity to state his reasons for refusing to answer and every opportunity to confer with counsel. But the grounds which petitioner then gave for not answering the Committee's questions were based principally upon the First Amendment and were not grounded upon Rule IV-A, upon an alleged right to testify in private rather than in public or upon injury to his reputation.

More than once during the hearing the Committee took particular pains to ascertain the precise grounds upon which petitioner was refusing to testify. And on more than one occasion petitioner expanded and enlarged upon his reasons for not answering the Committee's questions. At no time, however, did he mention Rule IV-A or the matter of an executive session or specify how his reputation might be injured in a public hearing. Quite the contrary, when petitioner at one point asserted that he could not 'see the purpose or the pertinency of asking me what they consider a known fact * * * it kind of appears to me as if this line of questioning is merely trying to create an impression and expose me for the sake of merely exposing me and not leading to any valid legislative purpose,' Chairman Walter assured him that the Committee had never asked questions for the mere sake of exposing and then inquired: 'And now I would like to ask you: What do you mean by exposing you? Exposing you to what?' Petitioner's answer was entirely unresponsive. He did not explain how he would be exposed or injured and instead launched upon a discussion of academic freedom. At another point, when petitioner said: 'I don't like to have my loyalty questioned or my character questioned,' Chairman Walter said: 'Isn't this the best place to clarify the atmosphere? If you feel as you say you do, and I am sure that you do, is this not a great opportunity to eliminate whatever question might be in anybody's mind, particularly mine, about your activities?' Petitioner's answer was to decline to discuss himself. He did not accept the invitation to say how or in what manner his reputation would be unjustly injured by testifying in public.

Even if there could be sifted from this record a bona fide assertion of a right to an executive session and a refusal to answer based upon that ground, petitioner consistently relied upon other grounds as well and it would sweep away much established law in this Court to give his claim to an executive session any practical significance. Petitioner's central thesis and repeated reasons for not responding to questions put to him by the Committee were based upon the First Amendment. These grounds were firmly and clearly put and petitioner in no way indicated that an executive session would have made any difference in his willingness to answer questions.

The Court considered a similar situation in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884, in connection with the same congressional committee. There, the witness at her trial for contempt asserted that her failure to produce records at the hearing was excusable because there was not a quorum present, but that ground was held unavailable because she had relied upon other grounds at the hearing. 'Testimonial compulsion is an intensely practical matter. * * * (T)he fact that the alleged defect upon which respondent now insists is, in her own estimation, an immaterial one, is clearly shown by her reliance before the Committee upon other grounds for failing to produce the records. She does not deny, and the transcript of the hearing makes it perfectly clear, that she would not have complied with the subpoenas no matter how the Committee had been constituted at the time.' Explaining an analogous case, Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, the Bryan Court noted that the witness in Hale, 'having refused compliance for other reasons which the lower court could not remedy * * * could not later complain of its refusal to do a meaningless act-to grant him additional time to gather papers which he had indicated he would not produce in any event. Here respondent (Bryan) would have the Committee go through the empty formality of summoning a quorum of its members to gather in solemn conclave to hear her refuse to honor its demands.' United States v. Bryan, supra, 339 U.S. at 334, 70 S.Ct. at 732. ^[13]

Petitioner was represented at the hearing before the Committee by experienced counsel, the same counsel who represented the witness in the Bryan case. It is difficult to believe that if petitioner was in fact refusing to answer because he was called at a public hearing instead of an executive session, express reliance upon the Committee rule would not appear in the record along with the supporting reasons. Rather, it is far more likely that petitioner preferred to include among his several reasons for refusing to answer the ground that the Committee was seeking only to expose him for exposure's sake. See Watkins v. United States, 354 U.S. 178, 187, 200, 77 S.Ct. 1173, 1185, 1 L.Ed.2d 1273; Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. It would have weakened if not destroyed that ground if petitioner based his refusal to testify on the executive session ground and had been granted a private hearing. Quite plainly petitioner was seeking to keep his constitutional grounds intact.

It is no answer to say that this rule of diligence can be relaxed here because petitioner was not aware until the trial that the Committee might have ignored its own rules in deliberating upon whether or not to question him in private. The point is that if petitioner has any standing to complain about the manner in which the Committee acted, it must be because he asserted at the Committee hearing, when matters were still open to direct explanation and correction, that he would suffer unjust damage to his reputation by a public session and that he had a right under the rules of the Committee to have his reputational interest considered. Compare Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, and Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, where the specific grounds sustained by the Court were vigorously asserted at the hearing. The Committee is obliged to make clear the demands which it makes upon the witness. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964. There surely must be a reciprocal obligation on the part of the witness to advise the Committee of the precise grounds for his silence.

In any event, however, the Committee did not, as petitioner contends, fail to apply its executive session rule to him.

Article I, § 5, cl. 2, of the Constitution provides that 'Each House may determine the Rules of its Proceedings.' The role that the courts play in adjudicating questions involving the rules of either house must of necessity be a limited one, for the manner in which a house or committee of Congress chooses to run its business ordinarily raises no justiciable controversy. Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294; United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321; Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 66 L.Ed. 505; cf. Flint v. Stone Tracy Co., 220 U.S. 107, 143, 31 S.Ct. 342, 345, 55 L.Ed. 389. However, when the application or construction of a rule directly affects persons other than members of the house, 'the question presented is of necessity a judicial one.' United States v. Smith, 286 U.S. 6, 33, 52 S.Ct. 475, 478, 76 L.Ed. 954; Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826. Even when a judicial controversy is presented, the function of the courts is a narrow one. 'With the courts the question is only one of power. The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just.' United States v. Ballin, supra, 144 U.S. at 5, 12 S.Ct. at 509; United States v. Smith, supra.

The Committee, pursuant to enabling resolutions of the House of Representatives in exercise of that rule-making power, promulgated its rules of procedure, number IV-A of which is in issue here:

'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.

'(2) Attendance at Executive Sessions shall be limited to Members of the Committee, its staff, and other persons whose presence is requested, or consented to by the Committee.

'(3) All testimony taken in Executive Sessions shall be kept secret and shall not be released or used in public sessions without the approval of a majority of the Committee.'

Petitioner's claim is that in deciding to hold a public hearing in his case rather than to take his testimony in executive session, the Committee failed to give him the full benefit of the rule because it did not consider whether 'interrogation of a witness in a public hearing might * * * unjustly injure his reputation' and instead considered only injury to the reputation of other individuals. I find this contention wholly without substance.

My understanding of the testimony in trial court is that when a witness before the Committee may implicate third persons about whom the Committee does not have reliable information, an executive session is held. In terms of Rule IV-A an executive session is afforded in these circumstances because an open hearing 'might * * * unjustly injure * * * the reputation of other individuals.' It is otherwise and a closed session is not required when the Committee has adequate and reliable information about the other individuals the witness may mention, for their reputation would not then be 'unjustly injured' by revealing verified information in a public session.

The same considerations apply to the witness himself. 'Certainly,' as Mr. Tavenner testified, the rule operates for the benefit of the party testifying. See Opinion of the Court, ante, p. 116, n. 5. According to both Mr. Tavenner and Mr. Walter, Yellin was denied an executive session under the rule because he was a known Communist and the Committee had sworn testimony to this effect. The Committee believed the information furnished by its investigators about Yellin to be reliable. Measured against the plain terms of Rule IV-A, these facts did not call for a closed session. There was sworn testimony or other proof to back up the questions to be asked. There would be no 'unjust injury' to the reputation of the witness Yellin. Publicly interrogating a witness if the Committee's foundation for its questions rests only upon suspicion or rumor falls within the area of unjust injury to reputation. But public revelation of the truth does not.

The foregoing appears to me to be the construction which the Committee placed upon its own rules and as so construed it was applied here. It is true that in stating generally the considerations entering into the holding of an executive session, Mr. Walter said that private hearings are 'usually' granted when third persons may be mentioned against whom there is no sworn testimony and that he did not know of any other considerations. But this general remark is, at best, ambiguous and is supplemented by his previous statements concerning the Committee's decision to hold a public hearing in petitioner's own case. That decision, according to his testimony, plainly was based upon the Committee's appraisal of its information about petitioner. Yellin was not denied an executive session because there was no indication of injury to third persons. The considerations underlying the denial were peculiar to Yellin himself. In the Committee's view, its information about him was reliable and adequate, his reputation would not be unjustly injured and he was therefore not entitled to a closed session. The Committee did not, as petitioner urges, fail to consider any element of its rule when it determined to interrogate him in a public hearing.

While the testimony is reasonably clear as to the Committee's construction and application of its own rule, if there were any doubt about the matter it is not our place to resolve every doubt against the Committee. 'The presumption in favor of regularity, which applies to the proceedings of courts, cannot be denied to the proceedings of the houses of Congress, when acting upon matters within their constitutional authority.' Barry v. United States ex el. Cunningham, 279 U.S. 597, 619, 49 S.Ct. 452, 457, 73 L.Ed. 867. See also McGrain v. Daugherty, 273 U.S. 135, 179-180, 47 S.Ct. 319, 330, 71 L.Ed. 580; In re Chapman, 166 U.S. 661, 670, 17 S.Ct. 677, 680, 41 L.Ed. 1154. Cf. Tenney v. Brandhove, 341 U.S. 367, 378, 71 S.Ct. 783, 789, 95 L.Ed. 1019. Due regard for the legislative branch of the Government requires a considerably clearer showing than what is offered here that the long-time Chairman of the Committee did not know his own rules when he testified that the Committee had considered the request for an executive session and determined that the rule did not require it.

The Committee's construction of its own rules is entitled to great weight. United States v. Smith, 286 U.S. 6, 52 S.Ct. 475, 76 L.Ed. 954; Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826. 'To place upon the standing rules of the (Congress) a construction different from that adopted by the (Congress) * * * is a serious and delicate exercise of judicial power.' United States v. Smith, supra, 286 U.S. at 48, 52 S.Ct. at 483. Here, the Committee under its rule does not deem it to be unjust injury where the truth about the witness or a third person is brought out in a public hearing in pursuance of a valid legislative purpose. This reading of Rule IV-A is not bizarre, irrational or so out of keeping with history as to permit a court to ignore it because it would prefer a different construction or an entirely different rule. The House of Representatives has its own rule concerning executive sessions, Rule XI(m), which, according to the testimony at petitioner's trial and as contrasted with the rule of the Committee, has been construed by the House to afford no protection at all to the witness himself. Moreover, § 103 of the Revised Statutes, as amended, 2 U.S.C. § 193 provides that '(n)o witness is privileged to refuse to testify to any fact * * * upon the ground that his testimony to such fact * * * may tend to disgrace him or otherwise render him infamous.' Whatever other problems may inhere in the rule of the Committee, of the House or in the statute, the Committee's construction of its own rule heralds no break with the tradition of the House or of Congress in affording privacy to a witness when the hearing may be a fishing expedition or an inquiry into mere rumor but permitting a public session when the matter to be brought out is both pertinent to a legislative purpose and nothing but the unvarnished truth. 'The Constitution commits to the (House) the power to make its own rules; and it is not the function of the Court to say that another rule would be better.' United States v. Smith, supra, 286 U.S. at 48, 52 S.Ct. at 483.

Nor is there substance in petitioner's claim that the Committee erroneously failed to act upon the telegraphic request. Under the rule, all that is required is that the Committee consider whether to hold the session in an executive hearing. Cf. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. Here, the Committee on its own motion, even before the telegram was transmitted, had given full consideration to whether petitioner should be questioned in private. Whatever would have been the prejudice resulting from disregarding the telegram and totally failing to consider whether the questioning should be conducted in secret, there is no room for complaint on this record since the Committee had already deliberated on the matter. Once it made its assessment, as it did here, it discharged any obligation which its own rules imposed.

If '(t)estimonial compulsion is an intensely practical matter' and '(e)very exemption from testifying or producing records thus presupposes a very real interest to be protected,' United States v. Bryan, 339 U.S., at 332, 70 S.Ct., at 731, much of this discussion is really beside the point. Petitioner was convicted for refusing to answer four questions, each refusal constituting a separate count in the indictment. He was found guilty on all four counts, his sentences to run concurrently. His conviction must stand if his refusal to answer any one of the questions was unjustified. Claassen v. United States, 142 U.S. 140, 147, 12 S.Ct. 169, 170, 35 L.Ed. 966; Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774; Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 1087, 3 L.Ed.2d 1115. The first question which petitioner refused to answer was: 'Mr. Yellin, where did you reside prior to September 1957?' Petitioner refused to respond because to him it was obvious where 'this line of questioning will probably lead' and, expressly disclaiming Fifth Amendment protection, declined to answer on First Amendment grounds.

Petitioner's conviction on Count 1 should stand quite independently as against the claim to an executive session for it is difficult indeed to ascribe any reality to the view that petitioner may not be compelled, in a public hearing held by a legislative committee in pursuit of information pertinent to a legislative purpose, to answer, or to refuse to answer, a question about his residence prior to 1957 because of danger to his reputation. Oversight of congressional committee procedures should not be based upon such frivolous grounds.

In my view, petitioner's executive session argument is totally without support, and therefore I dissent.

Notes

1. 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.'
2. 'Rule XI
3. 'Rule XII
4. The Committee's resolution enumerated these areas of inquiry:
5. 'Under the provisions of Public Law 601, 79th Congress (60 Stat. 812), the Congress has placed upon this committee certain legislative and investigative duties and, in addition, the duty of exercising continuous watchfulness over the execution of any laws, the subject matter of which is within the jurisdiction of this committee. Accordingly, within the framework of this broad jurisdiction and objectives, this subcommittee of the Committee on Un-American Activities is here in Gary for the purpose of receiving testimony concerning Communist techniques and tactics of infiltration and the extent, character and objects of Communist Party propaganda activities in basic industries. The importance of this area of inquiry from the standpoint of national
6. 'It has been testified here that colonization of young men in the middle of their educational courses in industry was a deep-seated plan of the Communist Party to strengthen itself within basic industry. The chairman's opening statement indicated that the activities of the Communist Party within basic industries was the subject of inquiry here.
7. H.R. 2369, 86th Cong., 1st Sess., sponsored by Congressman Walter, to redefine 'organize' as used in the Smith Act; H.R. 3693, 86th Cong., 1st Sess., introduced by Congressman Scherer, to permit the Federal Government to guard strategic defense facilities against espionage, sabotage and other subversion; H.R. 9352, 85th Cong., 1st Sess., an omnibus bill to amend the Internal Security Act of 1950; H.R. 8121, 86th Cong., 2d Sess., a bill to provide a security program for defense contractors and their employees.
8. 'Q. (By Mr. Rabinowitz.) . . . (W)ill you state what information you had, and what additional information you hoped to get?
9. Petitioner also raises the following questions:
10. The telegram read: 'Undersigned represents Edward Yellin and Nicholas Busic. On their behalf I request executive session in lieu of open session. Testimony needed for legislative purposes can be secured in executive session without exposing witnesses to publicity. Victor Rabinowitz.'
11. 'Mr. TAVENNER. Will you state your name please, sir.
12. 'Mr. TAVENNER. Mr. Yellin, where did you reside prior to September 1957?
13. See also Loubriel v. United States, 2 Cir., 9 F.2d 807, 808:

'The question is no less than whether courts must put up with shifts and subterfuges in the place of truth and are powerless to put an end to trifling. They would prove themselves incapable of dealing with actualities if it were so, for there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance.'