Confronted with a long list of specific questions about Communism and stealing secret papers sent to the Government's big printing plant for printing. Rothschild invoked the Constitution's Fifth Amendment. He said replies might tend to incriminate him.

Turning to Roy Cohn, the sub-committee counsel sitting by his side, Mr. McCarthy issued these instructions:

"Mr. Counsel, will you call the head of the Government Printing Office and tell him of this testimony? I assume he will be suspended. I can't conceive of his being allowed to go back to the Government Printing Office and allowed to handle secret material."

David Schine, a subcommittee staff member, hustled to a telephone booth in the corner of the big hearing room in the Senate Office Building. It wasn't long before McCarthy told reporters word had come back from Philip L. Cole, deputy public printer, that Rothschild had been suspended immediately without pay.

This example of committee procedure is, I presume, somewhat extreme in its ruthlessness. And yet, in principle, it may be taken as representative. Senator McCarthy, sitting as a one-man committee was, to use his own word, making "accusations" against Mr. Rothschild whom, ostensibly, he was asking for co- operation in an investigation. He was citing evidence of guilt and threatening punishment for it. And, indirectly at least, he was getting his judgment executed. In a word, he was treating Mr. Rothschild, not as a witness but as a culprit; he was requiring of him, not evidence, but a confession.

To any person, thus dealt with, the letter offers legal advice. And what it advises is submissive obedience, as follows.--

"The witness is not the ultimate judge of the tendency of an answer to incriminate him. He can be required, on pain of contempt punishment, to disclose enough to show a real possibility that an answer to the question will tend, rightly or wrongly, to convict him of a crime. Manifestly, this is a delicate business. The witness must not be required to prove his guilt in demonstrating the incriminating character of the answer sought. A judge must decide when the witness has gone far enough to demonstrate his peril."

That statment, as it stands, seems strangely at odds with our usual criminal procedures, whether those of the police, or of Grand Juries, or of a Court of Justice. It is true that a man standing trial on accusation of crime must await the decision of a judge as to whether or not he will answer questions asked by the prosecution? It is true that persons other than the accused may be summoned as "witnesses," to give evidence for or against him. And these witnesses are, with respect to their testimony, subject to that final authority of the judge of which the letter speaks. But, in a court of justice, is the "defendant" under the same authority? Presumably, he, too, is capable of being a "witness." He may have information which prosecution and judge and jury could use for the making of a just decision. May he, then, be summoned to the witness stand and, at the discretion of the judge, be required to "tell what he knows"? Surely not! "Defendants" are not, in that sense, "witnesses." In our criminal procedure, no the provision that a suspect or a defendant himself, with such advice as he may take from his lawyer, is the "ultimate judge" as to whether or not he shall testify. And at this point, it must be noted, he does not enter a plea to the Court. He makes a decision.

Here, then, is the question which I wish to ask the writers of the Crimson letter. On what grounds do they assign to a Congressional Committee an authority over an accused person which, in criminal proceedings, is denied to every principal seems more firmly fixed than agency charged with the administration of Justice?

3

One of the most confusing features of the letter is the characterization which it gives of the motives of its client. The argument of the letter begins as follows.--

"The underlying principle to remember in considering the subject is the duty of the citizen to cooperate in government. He has no option to say, 'I do not approve of this Grand Jury or that Congressional Committee; I dislike its members and its objectives; therefore, I will not tell what I know'."

A person who would thus base a protest upon personal disagreement with, or dislike of, officials is, obviously, not appealing to the Fifth Amendment or to any other section of the Constitution. He has no legal case at all.

I offer myself as a teacher who, if called upon to testify about his political beliefs or associations, would refuse to testify.

In my own case, as in many others, that refusal would claim justification from the Fifth, as well as from the First Amendment. It would, however, have no reference to a danger of self-incrimination. It would express a citizen's concern (I) for the general welfare and safety of the nation and (2) for the integrity of the Constitution.