not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact.'
In the case of Counselman v. Hitchcock, 142 U.S. 547, at page 564, 12 S. Ct. 195, at page 198, 35 L. Ed. 1110, at page 1114, the Supreme Court, speaking through Mr. Justice Blatchford, in considering whether Section 860 of the Revised Statutes removes the protection of the constitutional privilege against self-incrimination, said:
'That section must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. It follows that any evidence which might have been obtained from Counselman by means of his examination before the grand jury could not be given in evidence nor used against him or his property in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. This, of course, protected him against the use of his testimony against him or his property in any prosecution against him or his property, in any criminal proceeding, in a court of the United States. But it had only that effect. It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possible have been convicted.
'The constitutional provision distinctly declares that a person shall not 'be compelled in any criminal case to be a witness against himself,' and the protection of section 860 is not coextensive with the constitutional provision.' [Emphasis supplied]
It is contended by the Government that an answer that the defendant did not know the persons about whom inquiry was made could not possibly incriminate him. It is conceded that the answer that he did know such persons, or certain of them, might under some circumstances be incriminating, insisting, however, that it was the duty of the defendant in such circumstances to explain why such answer would be incriminating. In so far as that contention relates to the situation in this particular case, the answer may be found in the setting in which the questions were asked and the privilege claimed. The testimony of this defendant before the Committee was taken at hearings which extended over a period from July 12th through the 15th, 1950, and were resumed August 8th, 1950. The defendant's testimony was taken on July 14th, numerous witnesses having testified previously and some subsequently. The transcript of the proceeding before the Committee, particularly with reference to examination of this defendant, shows that certain witnesses identified him as a member of the Communist Party, active in its affairs, and actively engaged with other members of the Communist Party in furthering its organization. The testimony by other witnesses showed that every one of the persons, concerning whom the questions here involved were asked, were members of or affiliated with the Communist Party. With federal statutes then in effect, making it a criminal offense to do the acts, to have the affiliations, or to conspire with others in the doing of such acts, and with numerous other witnesses testifying that this defendant had been thus engaged, it cannot reasonably be doubted that the defendant had good ground to apprehend that he would be prosecuted therefor. Blau v. U.S., 340 U.S. 159, 71 S. Ct. 223. In any prosecution in which he be charged with conspiracy with those concerning whom he was asked, it would obviously be relevant and important evidence that he knew them, and that they knew him. It is beside the point that such fact could probably be readily established by the testimony of others. The crux of the question is that he could not be compelled or coerced in admitting that he knew them, and revealing the source from which evidence might be obtained that could be used against him in any criminal prosecution. A witness ought not to be required to make an incriminating answer, and thus be put to the hazard of losing the right to claim privilege as to further questions which would elicit incriminating answers. See Rogers v. U.S., 71 S. Ct. 438. While it may be that, in certain circumstances, a witness should explain why an answer to an apparently innocent question might tend to incriminate him, certainly no such explanation is necessary to support a claim of privilege when testimony before the Committee is such as to make such explanation evident.
Where the claim of privilege is made with respect to numerous questions asked a witness, it should be considered to apply to a question asked in connection with the questions to which he has made claim of privilege when he declines to answer such question without making it clear that he is waiving the claim of privilege with respect to such question he declines to answer.
Much said in comment in connection with the judgment rendered this day in the case of United States v. Fitzpatrick, D.C., 96 F.Supp. 491, has equal application to this case in so far as it relates to the proper and limited function of a court with respect to the congressional power of investigation. Such comment will, therefore, not be repeated here.
For the reasons stated, I am of the view that the witness did claim privilege under the Fifth Amendment of the Constitution respecting the questions here involved, and that, in the circumstances, he should not have been required to answer such questions, and, therefore, a failure to make answer to such questions was not a violation of Title 2 U.S.C.A. § 192. The judgment of the Court is that the defendant is not guilty.