A lawyer is not the kind of "officer" who can be tried summarily
for contempt under 18 U.S.C. § 401(2), which empowers a court of
the United States to punish as contempt "[m]isbehavior of any of
its officers in their official transactions." Pp.
350 U. S.
399-408.
(a) This section derives from the Contempt Act of March 2, 1831,
4 Stat. 487, and should be narrowly construed, because its
legislative history shows that Congress intended drastically to
limit the contempt power of federal courts, and because the
exercise of any broader contempt power would permit too great
inroads on the procedural safeguards of the Bill of Rights. Pp.
350 U. S.
403-404.
(b) The term "officers," as used in 18 U.S.C. § 401(2), should
not be expanded beyond the group of persons -- such as marshals,
bailiffs, court clerks, and judges -- who serve as conventional
court officers and are regularly treated as such in the laws. P.
350 U. S.
405.
(c) The legislative history of the 1831 Act is completely
inconsistent with a purpose to treat lawyers as "officers of the
court" subject to summary punishment. Pp.
350 U. S.
405-408.
___ U.S.App.D.C. ___, 223 F.2d 322, reversed.
MR. JUSTICE BLACK delivered the opinion of the Court.
18 U.S.C. § 401(2) empowers a court of the United States to
punish as contempt "Misbehavior of any of its
Page 350 U. S. 400
officers in their official transactions. . . ." [
Footnote 1] Petitioner, a lawyer, sent a
questionnaire to a District of Columbia grand jury. For this, the
District Court found petitioner guilty of contempt and fined him
$100. 122 F. Supp. 388. In so doing, the court held that, within
the meaning of the statute, petitioner was one "of its officers,"
and that sending the questionnaire was "misbehavior" in an
"official transaction." The Court of Appeals affirmed, Circuit
Judge Fahy dissenting. 96 U.S.App.D.C. 30, 223 F.2d 322. The
construction of the statute raised such important questions that we
granted certiorari. 350 U.S. 817. A rather detailed statement of
the facts, which are not in dispute, will point up the broad scope
given the statute in sustaining this conviction.
A District of Columbia grand jury returned an indictment against
Ben Gold, charging him with having filed a false non-Communist
affidavit in violation of 18 U.S.C. § 1001. Petitioner promptly
appeared as his attorney. Shortly thereafter, the same grand jury
summoned two of Mr. Gold's associates, commanding them to appear
and produce documents. Petitioner appeared for them and moved to
quash and vacate the subpoenas. On the same day or the next,
petitioner mailed from New York identical letters and
questionnaires to all members of the grand jury who were employees
of the Federal Government. In the letters, petitioner told the
grand jurors that, as Mr.
Page 350 U. S. 401
Gold's attorney, he was trying to learn the effect of the
Government's loyalty program on federal employee jurors. Explaining
that he wanted no information concerning proceedings or
deliberations of the grand jury, he asked the jurors to answer his
questions on the ground that it was their duty as citizens "to help
enlighten the court on an issue which affects the liberty of a
citizen on trial in a criminal case." All of the questions were
directed toward learning whether the government employee jurors
might be influenced by bias or fear to indict persons charged with
having had some association with the Communist Party. On the basis
of these facts, the District Court ordered petitioner to appear and
show cause why he should not be adjudged guilty of contempt under
18 U.S.C. § 401(2).
Petitioner appeared and answered the charges. He admitted the
facts just stated, but denied that his conduct constituted contempt
within the meaning of the statute. His answer set out the following
additional facts, which are not disputed:
Prior to the return of the indictment against Mr. Gold in the
District of Columbia, two federal grand juries in New York had
investigated this same alleged offense, but returned no indictment.
Immediately after Mr. Gold was arraigned in the District of
Columbia Court, petitioner learned from a roster of the grand jury
obtained from the clerk that 13 members of the grand jury -- a
majority -- were government employees. Petitioner decided to make a
motion challenging the legal qualifications of the government
employee jurors. He concluded that this could be done under Federal
Rule 6(b) of the Rules of Criminal Procedure, relying in part on
this Court's statement in
Dennis v. United States,
339 U. S. 162,
339 U. S.
171-172, that "Preservation of the opportunity to
Page 350 U. S. 402
prove actual bias is a guarantee of a defendant's right to an
impartial jury."
Petitioner was also led to believe that it would be necessary to
obtain statements from the grand jurors because of the Government's
brief and the court's holding in
Emspak v. United States,
91 U.S.App.D.C. 378, 203 F.2d 54. There, the Government
successfully contested Emspak's efforts to show that federal
employee grand jurors were biased, and should not have served, by
arguing that
"there is not the slightest indication in the long motion and
offer of proof that an attempt has been made to interview a single
one of the persons."
The Government also argued there that it was the defendant's
duty to make his own investigation of bias, instead of calling on
the court to make it for him. The petitioner was also influenced by
what had taken place in connection with an investigation of bias of
government employees in another case in the District of Columbia.
There, a district judge had held that the defendant Weinberg was
not entitled to a hearing as to bias of government employees as
grand jurors unless the defendant had himself first undertaken to
contact the jurors to ascertain from them the existence of bias.
The district judge had stated that there was
"nothing to prevent counsel, if he sees fit, contacting those 15
members [of the grand jury] and inquiring only of one subject,
whether or not they had any personal bias toward"
the defendant. After this statement, counsel for Weinberg had
sent a letter and questionnaire to all the government employee
members of the grand jury. Petitioner consulted with Weinberg's
lawyers, who told him they had sent the letters and questionnaires
without the prior knowledge or authority of the district judge,
that their action was later made known to him, and that no
suggestion of criticism was made either by the judge or by the
Government. Petitioner then mailed substantially the
Page 350 U. S. 403
same letter and questionnaire sent by Weinberg's counsel to the
government employees on the grand jury that had indicted his
client, Gold.
On the basis of the foregoing undisputed facts, the district
judge found petitioner guilty of contempt. He concluded that
petitioner's act in sending the questionnaires was an impropriety,
but went on to say:
"There seems to be reason to believe respondent may have
misconceived the proprieties. What he did was open. There was no
opprobrious personal approach to jurors. There is indication
respondent may have believed he had a right to propound the
questions at the time he did, notwithstanding this Court is of
opinion he had not."
122 F. Supp. at 389.
The contempt section here relied on derives from the Contempt
Act of March 2, 1831. 4 Stat. 487. In
Nye v. United
States, 313 U. S. 33,
313 U. S. 52-53,
we reviewed the history of the 1831 Act and found that its purpose
was greatly to limit the contempt power of federal courts.
[
Footnote 2] For this reason,
we gave the provision of the Contempt Act then under consideration
a narrow construction. Even though we recognized that Nye was
guilty of "highly reprehensible" conduct, we held that he could not
be punished summarily for contempt, but must be "afforded the
normal safeguards surrounding criminal prosecutions." Some time
after the
Nye case, we considered
In re Michael,
326 U. S. 224.
There, a trustee in bankruptcy had been adjudged guilty of
contempt. The Government
Page 350 U. S. 404
argued that he was guilty of misbehavior as an officer of the
court in an official transaction under the same section involved
here. Again we pointed out that the 1831 Act "represented a
deliberate Congressional purpose drastically to curtail the range
of conduct which Courts could punish as contempt." We there
construed the Act as embodying a congressional plan to limit the
contempt power to "the least possible power adequate to the end
proposed."
See Anderson v.
Dunn, 6 Wheat. 204,
19 U. S. 231.
We added,
"The exercise by federal courts of any broader contempt power
than this would permit too great inroads on the procedural
safeguards of the Bill of Rights, since contempts are summary in
their nature, and leave determination of guilt to a judge, rather
than a jury. It is in this Constitutional setting that we must
resolve the issues here raised."
326 U.S. at
326 U. S. 227.
We consider the judicial power here in that same setting.
Cf.
United States ex rel. Toth v. Quarles, 350 U. S.
11,
350 U. S.
15-16.
Petitioner contends that his conduct was not "misbehavior"
within the meaning of the Act, but was a good faith attempt to
discharge his duties as counsel for a defendant in a criminal case.
We find it unnecessary to decide this, but it is not out of place
to say that no statute or rule of court specifically prohibits
conduct such as petitioner's. Petitioner also contends that sending
the questionnaire was not an "official transaction" within the
meaning of the Act. However, if we assumed that a lawyer in
ordinary practice is an "official" or "officer" of the court, it
would be hard to draw any line between "official" and "unofficial"
transactions. Indeed, there is plausibility in the implication of
the Court of Appeals that, if lawyers are covered by this section
of the Act, they are engaged in official transactions whenever
engaged in the "practice of the profession." But we find it
unnecessary to decide when a lawyer is engaged in an "official
Page 350 U. S. 405
transaction," for we hold that a lawyer is not a court "officer"
within the meaning of § 401(2).
It has been stated many times that lawyers are "
officers' of
the court." One of the most frequently repeated statements to this
effect appears in Ex parte
Garland, 4 Wall. 333, 71 U. S. 378.
The Court pointed out there, however, that an attorney was not an
"officer" within the ordinary meaning of that term. Certainly
nothing that was said in Ex parte Garland or in any other
case decided by this Court places attorneys in the same category as
marshals, bailiffs, court clerks, or judges. Unlike these
officials, a lawyer is engaged in a private profession, important
though it be to our system of justice. In general, he makes his own
decisions, follows his own best judgment, collects his own fees,
and runs his own business. The word "officer" as it has always been
applied to lawyers conveys quite a different meaning from the word
"officer" as applied to people serving as officers within the
conventional meaning of that term. [Footnote 3] Cf. Labor Board v. Coca-Cola Bottling
Co., 350 U. S. 264. We
see no reason why the category of "officers" subject to summary
jurisdiction of a court under § 401(2) should be expanded beyond
the group of persons who serve as conventional court officers and
are regularly treated as such in the laws. See 28 U.S.C.
§§ 601-963.
There are strong reasons why attorneys should not be considered
"officers" under § 401(2). As we pointed out in the
Nye
case, the 1831 Act was promptly passed by the Congress after the
impeachment proceedings against
Page 350 U. S. 406
Judge Peck failed by a senatorial vote of 22 to 21. Judge Peck
had sent a lawyer to jail and had taken away his right to practice
as punishment for an alleged contempt. The contempt consisted of
published criticism of Judge Peck's opinion in a case in which the
convicted lawyer had appeared as counsel; he was also counsel in
other pending cases involving similar issues. Those directing the
impeachment proceedings, who later brought about the passage of the
1831 Act, expressed deep concern lest lawyers continue to be
subjected to summary trials by judges without the safeguards of
juries and regular court procedure. Congressman James Buchanan, who
made the last argument against Judge Peck, stated:
"But what is the process in the case of contempts? Without
either an information or an indictment, but merely on a simple rule
to show cause, drawn up in any form the judge may think proper, a
man is put upon his trial for an infamous offence, involving in its
punishment the loss both of liberty and property. He is deprived
both of petit jury and grand jury, and is tried by an angry
adversary prepared to sacrifice him and his rights on the altar of
his own vengeance."
"
* * * *"
"I may be wrong, but I hold it to be the imperative duty of an
attorney to protect the interests of his client out of court as
well as in court. [
Footnote
4]"
Again, Mr. Buchanan said:
"I believe that I have as good a right to the exercise of my
profession as the mechanic has to follow his
Page 350 U. S. 407
trade, or the merchant to engage in the pursuits of commerce. .
. . The public have almost as deep an interest in the independence
of the bar as of the bench. [
Footnote 5]"
Such statements by the same man who reported the 1831 Act to the
House of Representatives almost immediately after Judge Peck's
acquittal are completely inconsistent with a purpose to treat
lawyers as "
officers' of the court" subject to summary
punishment. We cannot hold that lawyers are subject to the precise
kind of summary contempt power that the Act was designedly drawn to
bar judges from exercising. Section 2 of that Act made ample
provision for punishing corrupt efforts to influence, intimidate or
impede juries. [Footnote 6] And
Congress expressly provided that prosecution therefor be by
indictment. Substantially the same provision has been a part of our
law ever since. 1 8 U.S.C. § 1503. See also Fed.Rules
Crim.Proc. 7(a). Of course, it does not cover this case, because
there is no charge that petitioner attempted improperly to
influence the jury or violate § 1503 in any other way. Had there
been such a charge, petitioner would have been entitled to a trial
by jury after indictment by grand jury. We hold that a lawyer is
not the
Page 350 U. S. 408
kind of "officer" who can be summarily tried for contempt under
18 U.S.C. § 401(2). [
Footnote
7] The judgment of the Court of Appeals must therefore be
Reversed.
MR. JUSTICE REED concurs in the judgment solely on the ground
that the circumstances leading to the enactment of this statute
dictate the Court's otherwise unique reading of the term "officers
of the court."
MR. JUSTICE HARLAN took no part in the consideration or decision
of this case.
[
Footnote 1]
Section 401 in its entirety provides:
"A court of the United States shall have power to punish by fine
or imprisonment at its discretion, such contempt of its authority,
and none other, as --"
"(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice;"
"(2) Misbehavior of any of its officers in their official
transactions;"
"(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command."
[
Footnote 2]
For a discussion of the 1831 Act and the narrow limits of the
contempt power in general,
see Frankfurter and Landis,
Power of Congress over Procedure in Criminal Contempts in
"Inferior" Federal Courts -- A Study in Separation of Powers, 37
Harv.L.Rev. 1010; Nelles and King, Contempt by Publication in the
United States, 28 Col.L.Rev. 401, 525.
See also Stansbury,
Report of the Trial of James H. Peck (1833).
[
Footnote 3]
Illustrations of the confusion and difficulty of courts in
explaining what is meant when a lawyer is called an officer of the
court may be found in the following cases:
Langen v.
Borkowski, 188 Wis. 277, 301, 206 N.W. 181, 190;
In re
Galusha, 184 Cal. 697, 698, 195 P. 406;
Sowers v.
Wells, 150 Kan. 630, 635, 95 P.2d 281, 284-285;
In re
Bergeron, 220 Mass. 472, 476, 107 N.E. 1007, 1008.
[
Footnote 4]
Stansbury, Report of the Trial of James H. Peck (1833) 445,
455.
[
Footnote 5]
Id. at 450.
[
Footnote 6]
"
And be it further enacted, That if any person or
persons shall, corruptly, or by threats or force, endeavour to
influence, intimidate, or impede any juror, witness, or officer, in
any court of the United States, in the discharge of his duty, or
shall, corruptly, or by threats or force, obstruct, or impede, or
endeavour to obstruct or impede, the due administration of justice
therein, every person or persons so offending shall be liable to
prosecution therefor by indictment, and shall, on conviction
thereof, be punished by fine not exceeding five hundred dollars or
by imprisonment not exceeding three months, or both, according to
the nature and aggravation of the offence."
4 Stat. 488.
[
Footnote 7]
Ex parte
Bradley, 7 Wall. 364,
74 U. S. 374,
requires no different result. The Court there held that an attorney
could not be disbarred solely on a showing of a contempt committed
before another court. The Court did use broad language there as to
the power of courts to punish attorneys as officers of courts for
misbehavior in the practice of the profession. The statements in
Ex parte Bradley went so far as to say that lawyers became
subject to the summary jurisdiction of courts "for the commission
of any other act of official or personal dishonesty and
oppression." However questionable those statements may be, they
were not made, as the Court pointed out, with respect to a court's
power to punish contempts. The Court was referring to the generally
exercised powers of courts in that day to discipline attorneys. As
said by the Court later in
Ex parte
Robinson, 19 Wall. 505,
86 U. S. 512,
"The power to disbar an attorney proceeds upon very different
grounds" from those which support a court's power to punish for
contempt.