RULES OF PROCEDURE FOR SENATE INVESTIGATING COMMITTEES THURSDAY, AUGUST 12, 1954 UNITED STATES SENATE, COMMITTEE ON RULES AND ADMINISTRATION, SUBCOMMITTEE ON RULES, The subcommittee met at 10:35 a. m., pursuant to recess, in room 318, of the Senate Office Building, Senator William E. Jenner (chairman), presiding. Present: Senator Jenner (chairman). Also present: Boris S. Berkovitch, counsel to Subcommittee on Rules; W. F. Bookwalter, chief clerk of the Committee on Rules and Administration; Darrell St. Claire, professional staff member, Committee on Rules and Administration; and Judge Robert Morris. The CHAIRMAN. The committee will come to order. Will Mr. Jenkins come forward, please? Mr. Jenkins, will you be sworn to testify? Do you swear the testimony given in this hearing will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. JENKINS. I do, so help me God. TESTIMONY OF RAY H. JENKINS, FORMERLY SPECIAL COUNSEL, The CHAIRMAN. Will you give the committee your full name? The CHAIRMAN. Where do you reside, Mr. Jenkins? Mr. JENKINS. Knoxville, Tenn. The CHAIRMAN. And what is your business or profession? Mr. JENKINS. I am an attorney at law. The CHAIRMAN. You don't feel lonesome here this morning in this room, do you? Mr. JENKINS. I feel very happy. I have a genuine feeling of nostalgia as far as room 318 in the Senate Office Building is concerned, Mr. Chairman. The CHAIRMAN. Does Mr. Jenkins have a statement? Mr. BERKOVITCH. No, sir; there is no prepared statement. The CHAIRMAN. Mr. Jenkins, this is a subcommittee that is making a study of several proposals that have been filed with it concerning a code of procedure for congressional committees. Would you state briefly your experience along the lines of congressional committee work? Mr. JENKINS. Yes, Senator Jenner; I shall be happy to do so. May I ask the chairman a question? The CHAIRMAN. Yes, sir. Mr. JENKINS. First of all, let me say, Senator Jenner, and gentlemen, that I did not come prepared to make a formal statement, or read a formal written statement. Rather, I would like to talk to the committee, as briefly as possible and without unduly trespassing upon the committee's time, informally and extemporaneously. I felt that perhaps I might make 1 or 2 suggestions that would be helpful to the committee, and I did not want to be circumscribed, so to speak, by cold words in the 4 corners of the written document, and, if you would allow me, I would like to talk rather informally for a while and, as I say, a comparatively short time, Senator, and then I shall be glad to answer any questions that the chairman desires to ask. The CHAIRMAN. All right, Mr. Jenkins, you may proceed in your own fashion. Mr. JENKINS. First of all, I want to say to you, Senator Jenner, and the members of your committee, naturally, I am deeply appreciative of the courtesy and the implied compliment paid me by this committee in inviting me to be present on this occasion. You are bound to know, as all other members of your committee no doubt know, that as of the early part of April of this year, I was wholly unschooled in the procedures of a congressional investigating committee. It was my rare experience to have been chosen as special counsel to the Senate Permanent Subcommittee on Investigations, and I was here in this room for more than 2 months in the recent ArmyMcCarthy hearings, and I felt, when I received your invitation, that perhaps I had evolved 1 or 2 ideas in my mind that might be helpful and beneficial to the committee and to the Congress in formulating rules for such investigations. Now, I want to make it perfectly clear, Senator Jenner, that my experience and you well know this-is limited to the type of hearing of the McCarthy-Army hearing. I fully appreciate the fact that what I am going to say would have no application to a general inquiry, shall we say, a sort of fishing expedition, that sometimes committees are onerated with. So, what I shall say has particular reference and application to an investigation involving parties such as the investigation that was recently conducted in this caucus room. The first thing I want to say, Senator, is this-and this a general statement: Someone once said that the first law of heaven is order. or orderliness. It is a goal that we on this earth have been striving for since civilization began and which we have never attainedand that is orderliness-and the United States Senate and its inves} tigating committees are primarily interested in laying down these rules of procedure in attaining that goal; that is, order or orderli ness. I once heard a law teacher say-and I think it is the best definition of law that I have ever heard that law was the accumulated wisdom of the ages, and law, of course is divided in two main divisions, substantive law and procedural law. I am starting out now with those three general statements as my major premise, and the committee is interested in procedural matters. As I understand it, my testimony is to be confined to that phase of this investigation. The CHAIRMAN. That is correct. Mr. JENKINS. Having a background as a lawyer and as practitioner and as a trial lawyer, one situated as I am is naturally, shall we say, grounded in the traditions and the fundamentals of court procedure. Getting back to the statement that law and procedural law is the accumulated wisdom of the ages, there has never been any formula designed or contrived by mankind that was better suited to the attainment of justice and the ascertainment of truth than the judicial system. It isn't a perfect system. Law is not an exact science, but it is the result of the accumulated wisdom, of the accumulated experience in our English and American courts over the centuries. So, I start out with the proposition that, while I realize it is utterly impossible for a congressional committee to adhere strictly to the rules of the judiciary in its investigations, I think it can approach those rules, and approach them rather closely, without doing violence to itself or to any subject of an inquiry, or any parties of an inquiry, or an investigation. It is my opinion, gentlemen, that in a controversy such as was recently aired out in this committee hearing room, there should be a rule on the part of the Senate that the parties to such a controversy should be required, as we are in court, to give a specific bill of particulars. By that, I mean specific insofar as possible, setting forth dates, places, parties, and events. Then the parties to such a controversy know precisely with what they are charged and then precisely what they must answer. Those charges, first, should be in writing and filed with the committee, certainly within a reasonable time prior to the commencement of the hearing, so the committee will know what the issues are. With that as more or less the archstone of the beginning of the bearing, the proof that is introduced, while it cannot, of course, in all respects conform to the law of evidence, should at all times be held to the issues as made up in those pleadings, as we will call them, as made up in those specific charges, and the chairman, with the aid and advice of the members of his fellow members, should see at all times that the evidence introduced is relative and germane to those specific issues and should never, in my opinion, allow, during the course of an investigation, the interjection of an entirely new and independent issue, except on application by a party to the controversy to the committee, and by the consent of the committee. That certainly is the rule in court, and I see no reason why it should be broadened or expanded insofar as a congressional committee is concerned. Now, Mr. Chairman, what I am about to say now, I want it understood, has no application or reflection on any of the parties principal or any of the attorneys in the recent hearings in which I participated, but I feel this: I feel that the committee not only has the responsibility of hearing all of the evidence, evidence pertaining to the issues, as I say, and no others, but I think it would be a salutary thing insofar as the hearing itself is concerned if that committee was required to go further and not only find and report its verdict, its findings of fact, but make a written report on the conduct or misconduct of any party principal to that controversy. Why do I say that? Because the conduct or misconduct of a party litigant in court is always one of the issues, and if the committee does that, makes a report and is required to make a report, not only on the specific issues as made up by the pleadings, but upon the conduct or misconduct of any of the parties, or their attorneys, as, for instance, filibustering, delaying, stalling, conduct unbecoming a party principal, whoever he might be; the use of vituperative language, or what have you, if the parties know in the end their demeanor, their attitude, their conduct, before your committee, or any other congressional committee in this room, is being scrutinized during the course of the hearings, it is going to have a deterring effect on what would otherwise characterize the attitude of the conduct of a party litigant and tend to shorten the hearing. I felt that from time to time during the so-called Army-McCarthy hearings. No implication, no conclusion from what I have said is to be drawn. that I say or believe or imply that any party principal to that controversy was guilty of such a thing, and yet you might think so, or other members and other segments of the public might think so. I think it would be a fine thing as a deterring force. This, further, I have on my mind, Senator Jenner and gentlemen: Much has been said about whether or not a hearing such as the ArmyMcCarthy controversy or hassle should have been televised and radioed to the public. As a lawyer-and I believe the chairman will agree with me—I am a great believer in open, public hearings, insofar as is possible, realizing that executive sessions are essentially and necessarily expedient on occasions. I am reminded of a phrase about open treaties openly arrived at. I am not only a great believer in open hearings, such as that investigation was, or such as the forthcoming investigation will be, so that the public will be fully informed, but I believe, Senator, that there would be, and will always be, a fine thing to know that the final arbiter, the 13th juror, so to speak, to wit: the American people, has a concept of what took place of the evidence from sources that are of the utmost accuracy and that are media of the dissemination of news with the greatest fidelity. Now, I came to form the highest regard for the newspapermen here in Washington this spring, and the early part of the summer, and I know it was with the utmost concentration to their duty and their fidelity that they reported the news, and yet I know during all this confusion, and there was a great deal of confusion, that it was utterly impossible-and there were millions of people who were interestedas I understand, some 2 million people a day looked upon that hearing-because people in high places, in 2 of the 3 great branches of our Government were involved-their very integrity, their honor were involved-and the public was vitally, tremendously interested, and should have be-that is a good, wholesome, healthy sign-but I know the American people could not and would not have gotten the absolute accurate picture of what went on in here, so that it, that public, as the 13th juror, could make up its own mind about people in high places and its Government without the use of television and of radio. I want to say here, Mr. Chairman, that I think under any one of three circumstances such future controversies that arise and I hope and pray there are few, but there will be future controversies that arise. human beings being what they are those proceedings should be radioed and televised to the American public. First of all, that, in itself, is a deterrent insofar as people are concerned, whether in the legislative or the executive, from wrongdoing. If they know that their malfeasance or misfeasance or nonfeasance is going to be ventilated and taken into the homes of the American people, that, in itself, will be a deterring force. Secondly, if a man is innocent, he has nothing to fear. If I were a public official or a public figure and charged with an offense that involved moral turpitude or wrongdoing, or went to the very heart of my honor and integrity, and if I were innocent, I would ask the committee, the Senator of the committee investigating me, to radio it and televise it. In so doing, the people not only hear every word of the testimony; they see the party from whose lips that testimony flows; they see his demeanor, his attitude, his conduct, his reluctance, his willingness, his intelligence, even the inflection of his voice they get, and it is the perfect medium of bringing to the public the true facts. One of the principal means that we use in the judging of the weight of the witness, as you well know, is by his conduct and his demeanor and his attitude and his position, or lack of position to know, his intelligence, and so on down the line, so that if a controversy arises, such as the Army-McCarthy controversy, which is of national interest-was of national interest, and there will be others-and if the United States Senate, on its own volition, decides that controversy is a matter of national interest, then I would recommend that such a proceeding, on the majority vote of the United States Senate, be radioed and televised to the American public, regardless of the wishes of the participants. Thirdly, if the committee, your committee, or any congressional committee, on its own vote-and I would think, by reason of the fact that you comprise but a small segment of the public, such a vote should be by a two-thirds majority-decides that the issues are of national interest and that the public ought to know-and the public ought to always know-about its officials, whether in the legislative, executive, or even in the judiciary, and about their conduct, whether it is good or whether it is bad, so that they can rectify it if it is bad and approve it if it is good, that the committee, itself, should have the right, in its discretion, to say, "This is a matter of public interest and it ought to be radioed and televised so that, with the utmost accuracy and fidelity, every word, every sentence, every syllable can be carried into the homes of the American people." Lastly, if any party principal, whether an accuser or whether a defendant, demands that it be radioed and televised, hasn't he a right to have that done, to have the public know all the facts for his exoneration? 49144-54-pt. 10- -2 |