files that the defendant had been a member of a number of subversive or Communist front organizations; that he had been a member of the International Labor Defense which was known or believed to be supported by the Communist Party; that he participated in Communist meetings generally. Moreover, the Committee wanted to know whether he participated in what the Committee believed were efforts of the Communist Party to discredit Government witnesses in cases involving Communists. This aspect of the matter arose in connection with one Matusow, who had been a Government witness in a prosecution under the Smith Act, and who later recanted his testimony.
It must be emphasized that all of this testimony was hearsay and would be incompetent and inadmissible if it had been tendered as proof of the facts therein referred to. This testimony, however, was neither offered nor admitted for that purpose. It was admitted for the sole purpose of establishing the pertinency of the questions addressed to the witness. This testimony tended to indicate the subjects in which the Committee was interested, why it was interested in those subjects, and how the questions asked of the witness related to those subjects. Obviously, hearsay testimony, although not proof of the facts to which it relates, may sufficiently establish and is admissible to establish pertinency of the questions here involved and the reasons for asking them. To take an analogy out of a different field of law, reasonable ground for obtaining a warrant of arrest may be shown by hearsay information, although such information would not be admissible to prove the offense charged in the warrant.
The defendant claims that what the Committee was investigating was the witness Matusow who had recanted and changed his testimony in a pending case, and the defendant further contends that to make such an investigation was an encroachment on the judicial power. The Court is of the opinion that this argument involves a non sequitur, for two reasons. In the first place, contrary to the defendant's contention, the Matusow aspect of the investigation conducted by the Subcommittee was only one of the many subjects then under scrutiny and was not the sole topic in which the Committee was interested. Moreover, while the Congress has no right to retry a case that is tried in a court, and no one is more assiduous in preserving the independence of the judiciary and guarding it against encroachment than this Court, nevertheless, a distinction must be drawn between an attempt to retry a case and an inquiry whether some proceedings in the case were part of an organized conspiracy to discredit Government witnesses in a series of cases as to which legislation might be possible. It may be added in passing, although it is not necessary, that this investigation did result in the drafting and the introduction of a bill on the subject of practice of law by lawyers who are members of the Communist Party. While it is not necessary to establish the existence of such a measure, that the inquiry did result in the introduction of such legislation is a conclusive demonstration of the fact that the investigation was in aid of legislation and not for any ulterior motive or some purpose in respect to which the Congress had no authority to act.
The suggestion raised in the argument of the defendant's counsel, and advanced by the defendant in a general way, that he is protected by the First Amendment against being required to answer the questions is fallacious. The First Amendment relates to freedom of speech, freedom of the press, and freedom of religion. It guarantees to every person the right to speak, subject of course to certain qualifications. It guarantees freedom to the press. It guarantees to every person the right to worship God in his own way, or not to worship Him at all. There is nothing in the First Amendment, however, which provides, directly or indirectly, that a person who is a witness or is otherwise being legally questioned may not be interrogated concerning matters covered by his freedom of speech, freedom of the press, or freedom of religion. There are many illustrations that may be cited in support of this thought. For example, on a voir dire examination of jurors during the impaneling of a jury questions are often asked concerning personal views and personal beliefs of the jurors, and such questions are permitted if they are relevant and germane. A juror may not refuse to answer them on the ground that he was protected by the First Amendment. I suppose in connection with the census the Congress might direct the Census Bureau to conduct a religious census in order to find out how many members there were in different denominations, and if the Congress did so a person could not decline to answer the question on the basis of the First Amendment to the Constitution. In other words, freedom to hold any political views or any religious views does not include the right to refuse to state what those views are. Obviously, those views may not be inquired into except by lawful authority, and only when they are pertinent, but when it is done under these circumstances there is no right to refuse to answer.
It has been urged that this proceeding is an infringement on the rights and the duties of members of the bar to defend the accused. The right and the duty of a member of the bar to defend the accused in a criminal case is and must be recognized by law. It is part of the traditional function of the bar. The Constitution provides that every person accused of a crime is entitled to counsel. In order to effectuate this constitutional guarantee it is necessary to extend full and unquestioned freedom to every member of the bar to accept a retainer in any criminal case and defend the accused. But this right stops where the duty and the function of the advocate or the counsel ceases. It is entirely proper to inquire into the activities of a member of the bar that are beyond the legal and ethical scope of his duties as counsel. It is entirely proper to inquire into his activities or connections with his clients that are beyond merely representing them in court. In this case the defendant was not questioned concerning his retainer, or concerning his representation of his clients. Consequently the appeal to the ethics of the bar is out of place. He was interrogated whether he personally was a member of the Communist Party; whether he personally had ever been a member of the Communist Party; and whether he personally was or had ever been a member of the Lawyers' Section of the Communist Party. These questions had no bearing on his work for his client.
Finally we come to the question whether willfullness in the refusal to answer has been established. It has always been held beginning with the Sinclair case, Sinclair v. United States, 279 U.S. 263, 49 S. Ct. 268, 73 L. Ed. 692, and ending with the recent Quinn case in the Supreme Court and in the Fields case, Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d 97, in this jurisdiction that a refusal to answer in order to be punishable must be willful. Willfullness does not mean bad faith or an evil motive. By willfullness in this connection, as the authorities have established, is meant that the refusal was deliberate and intentional and not merely accidental or inadvertent.
The Court is of the opinion that the Government has established all of the elements of this charge beyond a reasonable doubt and finds the defendant guilty on each of the three counts.
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