of a bona fide legislative function. The validity of this latter recommendation, however, cannot cure the invalidity of the subcommittee's adjudication of crime contained in the report's Statement of Facts.
Although the subcommittee's report was made after Icardi's testimony, its contents are relevant to show that body's conception and exercise of its authority and functions.
Chairman Cole testified that the subcommittee already had in its possession sufficient information on which to base its report to the Congress, including Icardi's prior statements on many occasions, and that the purpose of asking Icardi's appearance before the subcommittee was to give him an opportunity to tell his side of the story. Chairman Cole further testified that, to the best of his recollection, before asking Icardi to testify, he discussed with his colleague and counsel for the subcommittee the calling of Icardi, putting him under oath, and the possibility of a perjury indictment as the result of Icardi's testimony. It is unnecessary for the court to determine for which purpose Icardi's testimony was sought or obtained, since neither affording an individual a forum in which to protest his innocence nor extracting testimony with a view to a perjury prosecution, is a valid legislative purpose.
This court does not hold that the mere fact that a committee has in its possession a prior statement of an individual is a bar to the committee's compelling his testimony on the same subject, even though it be merely cumulative, provided such testimony is obtained by the committee for a legislative purpose within its jurisdiction. The court does hold that if the committee is not pursuing a bona fide legislative purpose when it secures the testimony of any witness, it is not acting as a 'competent tribunal', even though that very testimony be relevant to a matter which could be the subject of a valid legislative investigation.
While a committee or subcommittee of the Congress has the right to inquire whether there is a likelihood that a crime has been committed touching upon a field within its general jurisdiction and also to ascertain whether an executive department charged with the prosecution of such crime has acted properly, this authority cannot be extended to sanction a legislative trial and conviction of the individual toward whom the evidence points the finger of suspicion.
On the basis of all the evidence before it, the court therefore finds, as a matter of law, that at the time the subcommittee questioned the defendant Icardi it was not functioning as a competent tribunal.
Assuming, however, that the subcommittee was functioning as a competent tribunal when Icardi gave the testimony upon which the indictment is based, the court holds, as a matter of law, that the false answers defendant is charged with having given did not relate to a 'material matter.'
As stated in Fraser v. United States, 6 Cir., 145 F.2d 145, 149, certiorari denied 324 U.S. 842, 65 S. Ct. 586, 89 L. Ed. 1403, the test of materiality is whether the false testimony was capable of influencing the tribunal on the issue before it.
When a committee of Congress is engaged in a legitimate legislative inquiry and the questions propounded are relevant and material to that inquiry, the courts will not question the motives of the questioners. Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278, 279. And the fact that a crime may be disclosed by the answer does not make a question immaterial. McGrain v. Daugherty, 273 U.S. 135, 136, 47 S. Ct. 319, 71 L. Ed. 580. There are, however, limitations upon the investigative power of the legislature which must be considered in any determination of materiality. The investigation must be to aid in legislation. McGrain v. Daugherty, supra, 273 U.S. at page 178, 47 S. Ct. 319. 'Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.' Quinn v. United States, 349 U.S. 155, 161, 75 S. Ct. 668, 672, 99 L. Ed. 964.
It is relevant to this issue also that when Icardi was questioned the hearings had been reconvened after a lapse of fourteen months; that before Icardi was summoned the subcommittee had all the information necessary on which to base its report, including Icardi's version of the incident; and that although it has been testified that Icardi was invited to appear in order to give him a forum in which to tell his side of the story of Major Holohan's disappearance, before that invitation was sent the chairman had discussed with his colleague and the subcommittee counsel the possibility of indicting Icardi for perjury, if under oath he should adhere to his former statements. When Icardi received the subcommittee's letter 'inviting' him to testify before it, he was asked to appear on peril of the subcommittee's finding him guilty of murder, robbery, and embezzlement, if he should fail to comply.
The subcommittee must have known that if Icardi appeared before it his testimony could fall within one of three categories: (1) he could confess guilt; (2) he could stand on his constitutional privilege against self-incrimination, which would have the same effect upon the subcommittee's conclusions as if he had confessed guilt; and (3) he could repeat his denial of guilt, as given in all the previous statements in the possession of the subcommittee.
The facts sought to be elicited by the questions which are the subject of this indictment all dealt with the issue of Icardi's guilt of the crimes with which he had been charged. The court has not overlooked the Government's argument that the matters sought to be elicited by these six questions were material because, if Icardi and impressed the subcommittee with his credibility and had produced substantial corroborative evidence, the subcommittee might have concluded that he was innocent. In the face of the evidence that, as of the time he was questioned, Icardi's answers could have no effect upon the subcommittee's conclusions in the field of legitimate congressional investigation, this slim conjecture cannot support a finding by this court, as a matter of law, that Icardi's answers related to a material matter. Whether Icardi denied or confessed guilt by his answers, his testimony could not have influenced the subcommittee's conclusion on subjects which might be legitimately under investigation, namely, whether existing law adequately covered the prosecution of crimes committed under the circumstances of the specific charge under investigation, and whether the Defense Department had functioned adequately in its investigation of the Holohan disappearance.
Therefore, under the test set forth in the Fraser case, the court holds as a matter of law that the alleged false answers by Icardi were not material to the subcommittee's authorized investigation.
Counsel for the government has suggested that frequently individuals are adjudged guilty of an offense by a congressional committee in the exercise of its functions. This court doubts the accuracy of such statement; but, if it be true, such practice should not be condoned, as it denies to the accused the constitutional safeguards of judicial trial.
For the foregoing reasons the defendant's motion to dismiss- which I believe under the new rules I must treat as a motion for judgment of acquittal -- must be granted.
I shall ask the Marshal to call in the jury and I shall direct a verdict of acquittal for the defendant.
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