and trial by battle among the dimly remembered curios of outworn modes of trial.'
This Court, therefore, is entirely foreclosed from considering the defense of purging.
Nor was there any evidence that the Senate considered defendant otherwise than in contempt. Defendant was cited by that body and that citation was never withdrawn. The decision in Jurney v. MacCracken, 1935, 294 U.S. 125, 55 S. Ct. 375, 79 L. Ed. 802, is not to the contrary. In holding that the Senate had jurisdiction to try for contempt as against a writ of habeas corpus despite allegations that petitioner had removed all obstructions, Mr. Justice Brandeis said for the court in 294 U.S. on page 152, 55 S. Ct. at page 380:
'Whether he is guilty, and whether he has so far purged himself of contempt that he does not now deserve punishment, are the questions which the Senate proposes to try.'
It is not to be lightly inferred from this, that merely because the Court is now trying the issue of guilt, that it is also free to conclude on its own that conduct, which the Senate branded as an obstruction when it cited defendant, is not really an obstruction after all. The doctrine of Separation of Powers leads to a contrary conclusion. Sanction for such a judicial invasion of legislative discretion should not be wrenched from dicta based on different facts.
Repeatedly throughout the trial, defendant has ascribed ulterior motives to the subcommittee. He maintains that the only aim of the inquiry of January 19 was to delve into private union affairs in order to rake up and publicize alleged racketeering by union officers. The Government adduced evidence to show subcommittee concern with the effectiveness of current procedures with respect to reports filed with the Department of Labor. Defendant has characterized this in the language of Watkins as 'retroactive rationalization' of what was to the committee a mere 'afterthought'. The Court cannot agree with this.
As Chief Justice Warren wrote in the Watkins opinion:
'Petitioner has earnestly suggested that the difficult questions of protecting these rights from infringement by legislative inquiries can be surmounted in this case because there was no public purpose served in his interrogation. His conclusion is based upon the thesis that the Subcommittee was engaged in a program of exposure for the sake of exposure. The sole purpose of the inquiry, he contends, was to bring down upon himself and others the violence of public reaction because of their past beliefs, expressions and associations. In support of this argument, petitioner has marshalled an impressive array of evidence that some Congressmen have believed that such was their duty of part of it.
'We have no doubt that there is no congressional power to expose for the sake of exposure. * * * But a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served.' (Emphasis supplied.) 77 S. Ct. 1173, 1185.
For the reasons set forth above, the Court has found that the subcommittee was acting within the range of its authority and was seeking facts in an area appropriate for legislative action. Once this is established, issues of motivation fade away.
The Government's only witness in this trial was the Chief Counsel of the Permanent Subcommittee on Investigations. His testimony, among other things, tended to reveal the background leading up to the hearings in question, and threw much light on the scope of the inquiry and the pertinency of the questions in the indictment. Defendant several times objected that this testimony was incompetent as to the purpose of the committee, and that it consisted largely of hearsay and opinions. However, the Court finds these objections groundless. Great latitude was granted to both sides so that the Court could resolve the factual and legal issues set up by the indictment. As Judge Burger asserted in Sacher v. United States, 1957, 99 U.S.App.D.C. 360, 240 F.2d 46, at page 52:
'Third, it is urged that the testimony of the Subcommittee's legal counsel was inadmissible in the district court. * * * Considerable latitude must be allowed to establish the background and basis for a given line of congressional inquiry. * * * Furthermore, in a contempt proceeding, when the questions asked may not be pertinent on their face to the inquiry, it is the Government's duty to establish by other evidence this relationship.'
Since these issues had to be resolved and since the Chief Counsel has an intimate knowledge of subcommittee investigations, his testimony may not be ruled out by carping technicalities.
At the close of all the evidence, defendant renewed his earlier motion for a judgment of acquittal on all the counts of the indictment and moved again to dismiss. At this time, the Court denies both of these motions based on the reasons set forth above.
It is the judgment of this Court that the defendant is guilty on each and every count of the indictment.
Pursuant to Rule 32, Federal Rules of Criminal Procedure, 18 U.S.C.A., the Court refers all cases after conviction to the Probation Office for a pre-sentence report and investigation, and that will be done in this case. The defendant's present bond will continue in effect pending receipt of this report.
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