H. Res. 222. I understand that Committee staff members will be instructed to be circumspect in the conduct of their interviews and during hearings to avoid the risk of inadvertent disclosures and to provide the affected person with the opportunity to receive guidance from me or my designees on the applicability of this authorization to particular questions which are asked. I believe these arrangements meet our mutual interests in assuring that all persons respond fully and truthfully in providing testimony to your Committee. Please indicate by your counter-signature on this letter if it is acceptable to you. Sincerely, Frank C. Cartucci Honorable Louis Stokes, Chairman The Library of Congress Congressional Research Service Washington, D.C. 20540 REFUSAL TO OBEY A CONGRESSIONAL SUBPOENA DUCES TECUM ON GROUNDS It is our conclusion that as a general matter refusal to respond fully to a congressional subpoena duces tecum, in spite of allegations that the request should be accompanied by compensation for the costs of compliance or that a substantial risk of loss would be incurred, will subject the party subpoenaed to possible prosecution under section 192 of Title 2 of the United States Code. That statute provides, inter alia: "Every person who having been summoned as a witness by the authority of either House of Congress... to produce papers upon any matter under inquiry before either House... or any committee of either House of Congress, willfully makes default... 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." - The power of Congress to conduct investigations is inherent in the legislative process, and is broad. Watkins v. United States, 354 U.S. 178 (1957). "[T]he power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. McGrain v. Daugherty, 273 U.S. 135, 174 (1927). While materials called for by subpoena duces tecum must be pertinent to the legislative inquiry and must not be so broad in coverage as to constitute an unreasonable search and seizure in violation of the Fourth Amendment, the tendency of the courts has been to recognize in the Congress substantial authority to pursue its inquiry as it deems reasonable. 42-7 3 0 - 79 - 23 House Resolution 222, 95th Congress, 1st Session, authorizes the Select Committee on Assassinations to "require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, documents, tangible objects, and other things of any kind as it deems necessary..." If a witness is in doubt as to what records are required by a subpoena, or finds it unduly burdensome, or feels the records are unrelated to the inquiry, he is expected to so advise the committee issuing the subpoena and seek to remedy the situation. McPhaul v. United States, 364 U.S. 372, 382 (1960). In Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946), the Supreme Court stated that "relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry." (at 209). And the Court has concluded that where a committee's inquiry is a relatively broad one the permissible scope of the materials that could reasonably be sought is necessarily equally broad. McPhaul, supra, at 382. "[I]t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide." Blair v. United States, 250 U.S. 273, 281 (1919) (Emphasis supplied). At common law no witness fees were paid, and hence the right of any witness to compensation may be said to be purely statutory. 81 Am. Jur. 2d Witnesses §23 (1976). The duty to respond was described in United States v. Bryan, 339 U.S. 323 (1950): ".. 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." (at 331). And in Hurtado v. United States, 410 U.S. 578 (1973), reh. denied, 411 U.S. 978, the Court said: "It is beyond dispute that there is in fact a public obligation to provide evidence... and that this obligation persists no matter how financially burdensome it may be." (at 589) (Emphasis supplied). Hale v. The Fourth Amendment requires that a request for the production of records, documents, or other tangible things by a grand jury must be reasonable. Henkel, 201 U.S. 43 (1906). Rule 17(c) of the Federal Rules of Criminal Procedure provides that "[t]he court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive." In judging the reasonableness of a subpoena in the grand jury investigation setting, four factors are generally considered: (1) relevance of the documents to the investigation; (2) particularity in the specification of the materials sought; (3) reasonableness of the time period for which material is requested; and (4) the oppressiveness of compliance. But in assessing these factors, "[t]he relevance of the objects sought and the circumstances surrounding the case give a judge almost total discretion in deciding what is oppressive." National Lawyers Guild, Representation of Witnesses Before Federal Grand Juries §4.12(d), New York. 1976. Under Rule 45(b) of the Federal Rules of Civil Procedure an additional provision is included that the court "may condition denial of the motion [to quash the subpoena] upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things." The advancement of such costs, however, has been held to be left to the "sound discretion of the court." United States v. International Business Machines Corp., 62 F.R.D. 526 (S.D.N.Y. 1974) In Application of Radio Corp. of America, 13 F.R.D. 167 (S.D.N.Y. 1952), the court discussed the attempt by R.C.A. to quash a grand jury subpoena (issued in the course of an investigation regarding violations of antitrust laws) on the ground that it was so broad, sweeping, vague and indefinite that compliance would be unreasonable and oppressive and in contravention of the Fourth Amendment. In denying the relief sought, the court discussed the relevant principles of law: The general principles which emerge from the cases establish that in order to overcome the Fourth Amendment objections, the subpoena shall describe with reasonable particularity the papers to be produced and shall be confined to a reasonable period of time. The meaning of "reasonable" depends, of course, upon the particular facts of each case, so that prior decisions are of limited value. Here, none of the records called for go back further than 1934 [18 years] a little longer than the life of a patent. Considering the nature of the inquiry, the tremendous size and ramifications of the industry under investigation, the time span does not seem unreasonable. No general objection is pressed, nor has the court found, that the requested documents are not described with reasonable particularity. Hence, the gist of this aspect of the motion is simply that the assembly of the documents commanded by the subpoena imposes a heavy burden upon movant's representatives, resulting in dislocation of its normal activities, and puts it to considerable financial expense. * ...the great number of documents called for are an inevitable concomitant of R.C.A. 's gigantic size, the broad scope of its far-flung |