The opinion of the court was delivered by: YOUNGDAHL
This is a contempt of Congress prosecution against Austin J. Tobin, Executive Director of the Port of New York Authority.
The Authority is an agency established by the States of New Jersey and New York pursuant to Congressionally-approved interstate compacts.
The charge is brought by the Government under 2 U.S.C.A. 192, which provides that one
'who having been summoned as a witness by the authority of either House of Congress * * * to produce papers * * * willfully * * * refuses to (produce papers) pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor * * *.'
Prosecution followed defendant's citation for contempt by the House of Representatives and subsequent certification of the citation by the Speaker of the House to the United States Attorney for the District of Columbia.
The alleged contempt was Mr. Tobin's refusal to produce certain Authority documents and memoranda subpoenaed by Subcommittee number 5
of the House Judiciary Committee
in connection with its investigation of the Authority during the second session of the 86th Congress. Mr. Tobin is, in his own words, 'in complete charge of all files of the port authority, both * * * the official records and the internal records.'
Pursuant to the subpoena Mr. Tobin did produce Authority by-laws, organization manuals, rules and regulations, annual financial reports, and minutes of meetings of its Board of Commissioners.
However, he did not produce certain mternal documents, including financial and management reports, agenda of meetings, staff reports, and other communications relevant to dealings and policies of the Authority in the fields of construction, insurance, public relations, real estate, revenue bonds, and rail transportation. 7 It is his refusal to produce these documents that resulted in this prosecution.
A. Historical Background.
Early in this century numerous groups and individuals urged that rapid and efficient handling of commerce flowing through the bi-state area surrounding New York City could be accomplished only by treating the region as a single entity and by creating a bi-state agency to promote this end. Thus prompted, the New York and New Jersey legislatures, in 1921 and 1922, ratified compacts creating the Authority and specifying its initial functions.
Congressional approval was given pursuant to Article 1, Section 10 of the Constitution.
The Authority is headed by Commissioners appointed in equal number from each compacting State, and its day-to-day operations are conducted by a staff selected by the Commissioners. Mr. Tobin, as Executive Director, is the highest ranking staff member.
The Authority has the right to own and operate terminal and transportation facilities and related property within a delineated port district, and the responsibility of making recommendations to the two States' legislatures for improving or adding to existing projects. These recommendations can become effective only through identical legislation in the two States; by a similar process the two States can expand the port district's boundaries.
Further, the Authority has power to raise funds through sale of bonds to the public,
to appear before various Federal and State bodies on behalf of port commercial operation, and to 'intervene in any proceeding affecting the commerce of the port.'
The compact also allows each State to grant its Governor the right to veto any action taken by its Commissioners. While both Governors have been granted this power,
vetoes are rare; discussions between the Authority staff and Commissioners on the one hand and the Governors and their Authority liaison representatives on the other, produce agreement on the kinds of projects the Governors will approve.
Though originally established to aid solution of the port area's freight transportation difficulties,
the Authority subsequently has been granted additional powers to construct and maintain facilities for the conduct of passenger movement by car, rail, boat, bus, and plane. Thus at the time of its 1959 Annual Report it was operating
'twenty-one terminal and transportation facilities; six inter-state bridges and tunnels; four air terminals and a heliport; six marine terminal areas; two union motor truck terminals; a motor truck terminal for rail freight; and a union bus terminal.'
The Authority's investment in these facilities is nearing one billion dollars and its gross operating revenue exceeds $ 100,000,000 annually. Legislation is presently pending in New York and New Jersey which would empower the Authority to construct and operate a $ 355,000,000 World Trade Center.
In addition, representatives of the Authority appear before Congress and other Federal bodies on behalf of the Port of New York, and promote the Port through five domestic and four foreign offices and other projects and activities.
Although power to control the Authority's day-to-day operations is thus placed in the Commissioners, the staff and the compacting States, Congress, in approving the compacts, included three principal reservations. First, no 'right or jurisdiction of the United States in and over' the area within the port district is impaired.
'No bridges, tunnnels, or other structures shall be built across, under, or in any of the waters of the United States, and no change shall be made in the navigable capacity or condition of any such waters, until the plans therefor have been approved by the Chief of Engineers and the Secretary of War.'
'not inconsistent with the Constitution of the United States * * * and subject to the exercise of the power of Congress, for the improvement of the conduct of navigation and commerce.'
Until this investigation, manifestations of Federal interest in the Authority had been sporadic and principally directed to specific operations. The Army Corps of Engineers had examined bridge and tunnel construction proposals and investigated, several times, the reasonableness of Authority toll charges; the Federal Aviation Agency had exercised continuing control over flights in and out of Authority-operated airports; and Congress had granted Federal funds for construction at these airports and had investigated at least one series of plane crashes involving Newark Airport. In addition, in 1952 another subcommittee of the House Judiciary Committee conducted two days of hearings on a resolution
which would have withdrawn Congressional consent from the compacts until amendments could be attached to them. These hearings ended in an adverse Committee report on the resolution after members had attacked it as 'not completely followed through'
The present investigation, and the subpoena here at issue, are thus not part of continuing Congressional supervision over the Authority. Rather, this is the first time Congress has attempted to gain an over-all picture of Authority operations, and the first time the subpoena power has been employed in connection with any Congressional inquiry regarding the Authority.
B. Chronology of the Present Investigation. The spark which set off the inquiry was an announcement by the Authority in December, 1959, that it favored construction of a jet airport in Morris County, New Jersey. Because this location is apparently outside the present boundaries of the port district, and for other reasons not here relevant, this announcement caused considerable concern among New Jersey's Congressional representation about the Authority and its operations. As a result, sometime in February, 1960, a delegation purporting to represent the unanimous sentiment of the full New Jersey group requested the Chairman of the House Judiciary Committee to initiate a study of the Port Authority.
Following this request, the Chairman proposed a joint resolution
which would have amended the Port Authority compact resolutions to (a) require advance Congressional approval of any legislation by the two States 'amending or supplementing' the compacts; (b) require submission to Congress of all periodic reports made by the Authority to the two States; and (c) permit Congressional committees to (1) demand disclosure of any information deemed relevant, (2) inspect any books, records, and papers requested, and (3) view any Authority facility.
At about the same time, the Chairman directed the Judiciary Committee staff 'to make a study of the activities and operations of the authority under the 1921 and 1922 compacts, including a review of the scope of the authority's major operations.'
Shortly thereafter, the Chairman wrote to Mr. Tobin informing him of the Committee's purposes and requesting him to permit Committee investigators to inspect certain enumerated files and records located at the Authority's New York headquarters.
The investigators journeyed to New York but, by the Authority's own admission, were permitted to see only documents which were matters of public record. They were told that the other requested materials were being withheld pending decision by the Authority Commissioners 'after consultation with either or both of the Governors of New York or New Jersey.'
However, the documents were not produced.
The next significant step in this chronology occurred on June 1, 1960, when the House of Representatives, on the recommendation of its Rules Committee and at the request of the Judiciary Committee Chairman and ranking minority member, unanimously resolved to grant the Judiciary Committee subpoena power in connection with matters 'involving the activities and operations of interstate compacts.'
Thereafter, on June 8, 1960, Subcommittee 5 of the Judiciary Committee formally voted an inquiry of the New York Port Authority. On that same day, the Subcommittee informed Mr. Tobin and the Authority of its decision and stated:
'The purpose of the inquiry is to determine whether pending or other legislation is necessary in respect to the interstate compacts creating the * * * Authority. For that reason the subcommittee will inquire into the organization, structure, and activities of the * * * Authority to ascertain (1) whether or not it has exceeded the scope of its activities as contemplated by Congress in approving the interstate compacts of 1921 and 1922; and (2) the extent to which the authority is carrying out its duties and responsibilities under these interstate compacts.'
The Subcommittee indicated it would send two members of its staff to the Authority's New York headquarters on June 15, and it requested that the Authority make available certain specified documents. These were the documents later called for in the subpoena.
On June 10, Mr. Tobin replied.
He detailed the material which the Authority had already furnished and stated that because the Authority was a 'state agency' and because the subpoenaed documents related 'solely to the internal administration' of the Authority, they never could assist in any valid purpose of the committee and were not pertinent to its stated purpose. He added that an investigation of the type proposed would inhibit use by the States of the interstate compact device, and closed with an expression of hope that the June 15 meeting between the Authority and committee staffs could result in agreement as to any future production of documents.
On June 13, the Chairman answered that the Subcommittee had considered carefully and rejected these objections, and he directed that the demanded documents be furnished as requested on the 15th.
At the conclusion of the meeting on the 15th, which was devoted principally to a restatement of the previously developed positions, Mr. Tobin was served with the subpoena requiring him to produce the enumerated documents when the committee met in Washington on June 29.
'only purpose (for ordering noncompliance) is to insure that these basic questions of constitutional propriety and legality will be fully considered and determined by the appropriate tribunal.'
On June 27 the Port Authority Board of Commissioners, at a specially-called meeting, 'directed' Mr. Tobin to comply with the Governors' instructions as set forth in the two letters.
Finally, on June 29, the Subcommittee met to receive the return of the subpoena.
Following preliminary statements by the Chairman and Committee counsel, Mr. Tobin was ordered to produce the subpoenaed documents. He did not comply, relying on all the reasons he had theretofore given, including the Governors' letter, the lack of pertinency of the documents, and the general immunity of 'State agency' documents from Congressional demand. The Chairman then ruled Mr. Tobin in default.
The hearing concluded with statements by the Attorneys General of the two States and the Authority General Counsel. Subsequently the Subcommittee voted to report to the full Judiciary Committee a resolution citing Mr. Tobin for contempt; the full Committee voted to report the alleged contempt to the House of Representatives; and, after efforts failed to arrange a meeting between the two Governors and the Subcommittee, the House voted to cite Mr. Tobin for criminal prosecution.
Thereafter, in the week of November 28, 1960, the Subcommittee, over the Authority's objection, held hearings in New York City in pursuance of the investigation. Although resolution of the factual issues posed by this case depends principally on the events of June 29 and the months preceding, the transcript of these later hearings
was received in evidence for any light which they might shed on disputed questions raised by the earlier events.
To this prosecution Mr. Tobin has raised numerous defenses. They fall, in the Court's view into five categories:
I. The Subcommittee was not authorized to conduct an investigation in which it could call for the documents here at issue.
II. The subject matter of the inquiry and the pertinency of the documents was not sufficiently established or made clear to him.
III. The committee had no proper legislative purpose in conducting the inquiry.
IV. The documents called for were privileged and immune from Congressional demand.
V. He cannot be found guilty of contempt of Congress because his action was compelled by orders from his 'superiors,' the two Governors.
I. The Subcommittee's Authorization
A Congressional committee cannot legally exercise the investigative power of its parent body unless it is the recipient of that power through proper delegation.
Thus it is a requirement in a contempt of Congress prosecution that the committee's authorization be proven to conduct the investigation or issue the subpoena in question.
Because it is important that the interests of groups and individuals outside Congress not be subjected to unauthorized committee action, courts in contempt prosecutions have, in effect, imposed a requirement for clearly stated authorization by construing vague or ambiguous authorizations narrowly.
This judicial requirement for unquestioned authorization also has as its purpose in some cases the avoidance of unnecessary constitutional adjudication; for by construing a vague resolution narrowly, courts avoid the risk of passing on the constitutionality of committee action which Congress may never have intended to authorize. In this way they refrain from making far-reaching constitutional pronouncements that 'would affect not an evanescent policy of Congress, but its power to inform itself, which underlies its policy-making function.'
Such avoidance also gives Congress the opportunity to consider with 'full awareness of what is at stake'
what responsibilities it will delegate to a committee, and has the additional effect of preventing unnecessary disharmony between the legislative and judicial branches.
On the other hand, if Congress has given clear authorization for committee action, it must be presumed willing that the action be submitted to any legal challenge that may ensue.
Therefore, the question posed here is whether, having this jurisdiction, this Committee was authorized to conduct an investigation into the substantive operations of the Authority of depth sufficient to permit requests for documents of the type called for by this subpoena. The answer to this question is to be found in an examination of the resolution, passed by the House on June 1, 1960, granting to the Committee authorization 'to conduct full and complete investigations and studies relating to * * * the activities and operations of interstate compacts,' using the subpoena power, if necessary.
Defendant contends that this resolution should be read to permit inquiry only into 'those aspects of an interstate compact agency which are peculiar to its interstate compact status.'
The Court assumes, arguendo, that so read, the resolution would not authorize the Committee to probe as deeply as it did, and the constitutional issue of whether Congress has power to secure 'internal documents' of a compact agency would be avoided.
However, it is clear to the Court from the language, context, and floor discussion preceding passage of the June 1 resolution that it authorized an investigation of much greater depth than defendant argues. First, the resolution itself is unqualified; it speaks of 'full and complete investigations and studies relating to * * * the activities and operations of interstate compacts.'
Second, the resolution was introduced by the Chairman of the Judiciary Committee on May 17, 1960,
shortly after the Committee had failed in its efforts to obtain non-public Authority documents through informal means.
Third, during the short floor discussion on June 1, several significant statements were made. Congressman Brown of the Rules Committee, which had recommended passage of the resolution, stated:
'I have been assured by both the ranking member of the (Judiciary) Committee on our (Republican) side and by the Chairman * * * that the committee does not expect to use or abuse this power through a great many investigations but, instead, go look into one particular State's compact where, under present laws and under the compact, there is no control or knowledge of just how a great many public funds are being expended. * * * The Committee on Rules has had explained to it the need for this investigation and the good that can come from it.'
Later in the debate the Chairman of the Rules Committee stated that the Judiciary Committee was 'given blanket authority to investigate'
in connection with those interstate compacts coming within its jurisdiction.
At no point in the history of the resolution was any limitation on this 'blanket authority' suggested.
The Authority contends, however, that Congress could not have intended to authorize the Judiciary Committee to inquire into areas of Authority activity that affect Federal interests normally within the legislative purview of other House committees.
This argument is not persuasive. There is no doubt that the diverse and extensive operations of the Authority cut across a great many areas of Federal concern. Precisely because this is so, it is not unreasonable to assume that both for purposes of internal efficiency and to prevent undue burdens on the Authority, Congress might focus its visitatorial powers with respect to the Authority in a single committee.
The Court finds, therefore, that it was the clear import of the June first resolution that the Judiciary Committee be authorized to conduct an investigation that could encompass a request for the subpoenaed documents here at issue.
II. Subject Matter of the Inquiry and Pertinency of the Documents
The Court assumes, arguendo, that the contempt of Congress statute imposes a requirement that before a person who stands in default may be convicted, the Government must establish that a request for documents, no less than questions propounded at a hearing, be pertinent to the subject matter under investigation.
The Supreme Court has made it clear, in addition, that when a person is called by a legislative committee to give information, he must be given a clear explanation of the subject matter under inquiry and the pertinency of the request for information to that subject.
Since a witness 'must decide at the time the questions are propounded whether or not to answer,'
fundamental fairness requires that he be given information upon which to make this decision that is as explicit and clear as 'the Due Process Clause requires in the expression of any element of a criminal offense.'
A. The Explanation of Subject Matter. The Court finds that the opening statement of the Chairman at the June 29 hearing on the return of the subpoena made indisputably clear the subject matter of the investigation. That statement said in its most relevant part:
'The port authority's operations affect the economic lives of millions of Americans living outside as well as inside the port development area and the States of New York and New Jersey. They intimately affect the operation of Federal agencies responsible, among other things, for the national defense, navigable waterways, and air, rail, and highway traffic. In short, they profoundly affect Federal interests of many and various kinds.
'Nevertheless, * * * neither the Judiciary Committee, to which is assigned responsibility for interstate compacts of this character, nor any other congressional committee, has ever conducted a general investigation of the Port of New York Authority to determine its conformance or nonconformance to the limits of its authority or the ...