Before CLARK, Chief Judge, and HINCKS and WATERMAN, Circuit Judges.
These are appeals from orders of Judge Weinfeld dismissing three indictments charging Corliss Lamont, Abraham Unger, and Albert Shadowitz respectively with refusal to answer questions before the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations, on the ground that the indictments failed to charge violations of 2 U.S.C. § 192. Judge Weinfeld's scholarly opinion is reported at D.C.S.D.N.Y., 18 F.R.D. 27.
Lamont, Unger, and Shadowitz were called before a one-man subcommittee and asked to answer certain questions relating to their possible participation in or knowledge of subversive or leftist activities. They refused on the grounds that the subcommittee was without authority to require answers to the questions and that they were entitled under the First Amendment to remain silent. The Senate cited them for contempt; and they were indicted substantially in the statutory language of 2 U.S.C. § 192, the pertinent portion of which reads as follows: "Every person who having been summoned as a witness by the authority of * * * any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor * * *."*fn1
The judge found each indictment to be fatally defective in that it failed to plead the following elements of the offense: (1) that the committee before which the alleged refusal to answer occurred was duly empowered by either House of Congress to conduct the particular inquiry, setting forth the source of the authority; (2) that the inquiry was within the scope of the authority granted to the committee; and (3) that the witness' refusal to answer was willful or deliberate and intentional. Of these three asserted deficiencies we need here consider only the second and so much of the first as may also relate to the question whether this inquiry fell within the subcommittee's authority.*fn2 This question and its corollary as to the right of the defendants to raise it prior to the trial is the basis issue in the case.
On this appeal the government contends in effect that the authority of a congressional committee should be presumed for purposes of testing the indictment, or, alternatively, that the general reorganization statute and congressional resolutions referred to in the indictment constitute a sufficient pleading of the subcommittee's power. Defendants, on the other hand, argue that they should not be put to the expense and humiliation of preparing for trial and defending themselves when purely as a matter of law it is clear that the excursions of this Senate subcommittee, constituted to study the operation of government activities to determine its economy and efficiency,*fn3 when extended into the field of alleged subversive activities of nongovernmental persons were entirely unauthorized. The question is of substantial importance, touching one of the sensitive areas of public thought and governmental control.
It is of course the function of an indictment to set forth without unnecessary embroidery the essential facts constituting the offense and thus accurately acquaint the defendant with the specific crime with which he is charged.*fn4 But an allegation for lack of which the prosecution must evidently and as a matter of law fail cannot be regarded as superfluous. In United States v. Kamin, D.C.Mass., 135 F.Supp. 382, Id., D.C., 136 F.Supp. 791, a closely similar prosecution for comtempt committed before the same subcommittee here involved, the indictment contained no allegations showing the nature or subject of the inquiry in question or the committee's authority to conduct such an inquiry. Defendant's motion to dismiss the indictment was denied by Judge Aldrich, but he ordered a bill of particulars to be furnished in which the government set forth the subject matter of the inquiry. Defendant then renewed his motion to dismiss on the affirmative showing from the particulars furnished that the inquiry was outside the subcommittee's alleged authority. In an oral decision denying the motion the judge appears to have recognized the dilemma he had thus created for himself, but held that just as a bill of particulars cannot be used to repair a fatal defect in an indictment, so it cannot be used to create a fatal defect in an indictment held valid.
Defendant Kamin was then put to trial and subsequently acquitted upon a determination by Judge Aldrich that the alleged instances of refusal to answer questions took place during the course of an inquiry which lay outside the scope of the subcommittee's authority. United States v. Kamin, supra, D.C.Mass., 136 F.Supp. 791. Thus an unnecessary trial might have been averted had it been made clear in advance thereof that there was lacking an essential element of the crime charged, namely, that the inquiry was within the subcommittee's authority.
The deficiencies in the indictments now before us are thus quite fundamental and go far beyond the question whether defendants have been put on adequate notice. Rather the question is whether defendants are to be put to trial on an allegation which on its face charges no offense. Ses. 102 of the Legislative Reorganization Act of 1946, Pub.L. No. 601, 79th Cong., 2d Sess., c. 753, § 102(g), setting forth the scope of the authority of the parent committee, states in pertinent part that:
"(2) Such committee shall have the duty of -
"(B) studying the operation of Government activities at all levels with a view to determining its economy and efficiency;"
There is no allegation in the indictments here linking the inquiry conducted by the subcommittee to the grant of authority dispensed to its parent committee.*fn5 In fact on its face and taking judicial notice, as we must, of the pertinent legislation, the inference must be just the opposite.*fn6
"* * * If the committee selected a subject which is prima facie within its jurisdiction, doubtless a court could not go behind it, since jurisdiction then affirmatively appears. But if it selected a subject that was not prima facie within its jurisdiction, but was prima facie without it, it is not entitled to a presumption that the investigation differed from what it purported to be. That would be, in effect, to operate the presumption in reverse." United States v. Kamin, supra, D.C.Mass., 136 F.Supp. 791, 804.
We have then the anomalous situation that the government is now attempting to hang onto and retain for trial indictments for offenses which it cannot support in law. For Judge Aldrich's reasoning on the merits of the Kamin case, supra, seems quite convincing. We shall not repeat his cogent statement here, but point out that the problem is particularly highlighted by some of the questions put to Lamont. How a committee to promote retrenchment and efficiency in governmental operations is going to be aided in any way by an inquiry as to the length of time spent by a private writer on a trip to Russia must remain undisclosed. The latest ruling of the Supreme Court seems clearly to forbid so extensive, if not purposeless, an invasion of the rights of the individual.*fn7 The leading modern authority is United States v. Rumely, 345 U.S. 41, 44, 73 S. Ct. 543, 97 L. Ed. 770. See also McGrain v. ...