Sacher v. United States (356 U.S. 576)/Dissent Clark
Mr. Justice CLARK, with whom Mr. Justice WHITTAKER concurs, dissenting.
Petitioner concedes that the subject matter under inquiry, the Matusow recantation, 'was clearly defined by the subcommittee and (he) was specifically notified as to what that subject was at the time he was subpoenaed.' [*] If any of the three questions which petitioner refused to answer is clearly pertinent to that subject, the judgment must be sustained, since a general sentence was imposed after conviction on three counts, one for each refusal. Claassen v. United States, 1891, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966.
The third question, covered by the third count of the indictment, was whether petitioner was or ever had been 'a member of the Lawyers' Section of the Communist Party, U.S.A.' I think it obvious that the 'brief excursion' into proposed legislation barring Communist lawyers from the federal courts did not carry as far as this question, which was vital to a matter in which the Committee properly was interested-petitioner's role in a Communist conspiracy to procure Matusow's recantation. The context of the question clearly relates it to the recantation rather than the proposed legislation. Just prior to asking about membership in the Lawyers' Section of the Party, the Committee asked three times whether petitioner had attended a birthday party for one Alexander Bittelman. Petitioner replied that he did not remember. The Committee already had reports that he was at the party, which numbered 50 high Communists among its guests, and that information was one of the reasons why he was called before the Committee. He then was asked if he had 'any connection with the legal commission or law commission of the Communist Party,' for the Committee also had information that either he or one Nathan Witt probably was the head of a group of important Communists constituting a lawyers' commission to formulate legal strategy for the party. Upon answering that he '(did) not know of any such organization,' he was asked the question at issue, namely, whether he was or had been a member of the Lawyers' Section of the Party. Its relationship to the Matusow recantation is confirmed by the Committee's next question, asking whether petitioner had attended a Communist meeting in 1947 'at the home of Angus Cameron,' publisher of Matusow's autobiography.
When the question is viewed in context, it seems so me that pertinency is clearly established. Petitioner is a seasoned lawyer with trial experience. Both questions and answers may go afield in the examination of a witness-a truism to every trial practitioner but that fact cannot license a witness' refusal to answer questions which are relevant.
In any event the Government should be given a chance to present oral argument on the pertinency of the question under the third count before petitioner is freed. Opportunity for a hearing is particularly important here because the issue is one that confronts the Committees of the Congress day after day. For these reason I dissent from the summary reversal of petitioner's conviction.