Mr. Justice HARLAN, dissenting.
A valid claim of privilege against self-incrimination under the Fifth Amendment has two requisites: (1) the privilege must be adequately invoked, and (2) a possible answer to the question against which the privilege is asserted must have some tendency to incriminate the person to whom the question is addressed. Although Emspak's invocation of the privilege left much to be desired, I agree with the majority's view that it was adequate, and that Emspak at no time abandoned his claim. But I must dissent from the Court's holding that all of the questions involved in the indictment called for possibly incriminatory answers.
The Court also holds, as an alternative ground for reversing Emspak's conviction for contempt of the House Subcommittee, that Emspak was not sufficiently apprised of the fact that the Subcommittee, notwithstanding the claim of privilege, was insisting upon answers to the questions put to him. From this holding I must also dissent.
My disagreement with the Court on both scores goes to the first 58 counts of the indictment. As the Court's opinion recognizes, the upholding of Emspak's conviction on any one count of the indictment would require affirmance of the judgment below, because the general sentence imposed on all counts was less than the maximum allowable on any single count. See Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692.
As to the Incriminatory Character of the 58 Questions.
It is quite true, as the majority observes, that this issue was not dealt with by either of the courts below. The District Court and the Court of Appeals did not have to reach the problem because of their conclusion that Emspak's claim of privilege was inadequate. And for some reason the Government has not pressed the point. This, however, does not foreclose this Court from considering it. See Swift & Co. v. Hocking Valley R. Co., 1917, 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722. And perhaps it is due that I should explain why I think we should deal with it. My reason is twofold: first, because to hold, as the Court does, that the questions involved in Counts 1 to 58 of the indictment were of an incriminatory character seems to me to verge on an abandonment of the rule that a valid claim of privilege exists only as to incriminatory questions; and second, because the more recent decisions of this Court appear to me to leave the standard for determining whether a question is incriminatory in great confusion. For example, the Court of Appeals for the Third Circuit had occasion not so long ago to manifest its bewilderment as to where this aspect of the privilege against self-incrimination now stands in light of recent decisions of this Court. See United States v. Coffey, 1952, 198 F.2d 438. In short, I think the standard for judging the character of a question against which the Fifth Amendment privilege is asserted needs both rehabilitation and restatement.
(1) The standard.
The concept of an incriminating answer includes not only those answers which constitute an admission of guilt, but also those which may furnish evidence of guilt or merely supply a lead to obtaining such evidence. Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110.
The answer to almost any question a witness is asked could be regarded as being useful as evidence, or as furnishing a lead to evidence, in support of some conceivable criminal charge against the person to whom the question is addressed. But unlike a defendant in a criminal case, a witness in a grand jury or other judicial or legislative proceeding has never been allowed, by claiming his privilege, to refuse to answer any questions at all. That would completely subordinate the public interest in the conduct of such proceedings. Accordingly, lest claims of the Fifth Amendment privilege be used as a cover for a person refusing to perform his duty to co-operate in such proceedings, reasonable bounds have been put upon the exercise of the privilege. Those bounds were stated as long ago as 1861 by the English Court of Queen's Bench in The Queen v. Boyes, 1 B. & S. 311, 330-331, in language which this Court has adopted as the basis for the rule in this country. See Brown v. Walker, 1896, 161 U.S. 591, 599-600, 16 S.Ct. 644, 647-648, 40 L.Ed. 819; Mason v. United States, 1917, 244 U.S. 362, 365-366, 37 S.Ct. 621, 622-623, 61 L.Ed. 1198. In the Boyes case, Cockburn, C.J., said: