The opinion
FAHY, Circuit Judge, with whom EDGERTON, Chief Judge, and BAZELON, Circuit Judge,
join (dissenting) .
The guidance now afforded by Watkins v. United States, 354 U.S. 178 , 77 S.Ct. 1173 , 1 L.Ed.2d 1273 , was not available to the two-member subcommittee when it conducted the hearing out of which this case arose. In Watkins the Supreme Court held that upon objection by a witness because of the nonpertinency of a question the subject matter of the inquiry must appear “with indisputable clarity,” else the investigative body must state for the record the subject then under inquiry and the manner in which the questions are pertinent thereto, with a description of the topic and the connective reasoning whereby the precise questions relate to it. Watkins, supra, 354 U.S. at pages 214-215, 77 S.Ct. 1173 . The subcommittee in the present case had authority to take sworn testimony only upon a subject which had been designated by the parent Subcommittee on Internal Security, namely, “Strategy and Tactics of World Communism: The Significance of the Matusow Case.” Concededly it could not enlarge or change the subject of its inquiry. 1
*838 Appellant, though at times protesting, answered all questions until asked by subcommittee counsel whether he had ever served a prison sentence. He expressed doubt as to the legislative purpose of this question. Thereupon the Chairman inquired of subcommittee counsel. He responded in the presence of the witness that legislation for the purpose of fixing additional standards for the practice of law in federal courts was under consideration and that it was germane to consideration of such legislation to inquire into circumstances involving the practice of law in federal courts by Communists or by those who defend Communists. He said he believed the inquiries in the Matusow case have bearing upon “that legislative problem now pending before the committee.” 2 This was a clear departure from the subject about which the subcommittee was authorized to take testimony. The Chairman said he thought counsel “should lay a foundation for that first by asking the witness if he is a member of the Communist Party, if he has ever been, and so forth.” 3 The witness was then permitted to state his understanding that he was to be interrogated concerning the Matusow recantation, that this inquiry into his political beliefs and associations was diversionary, and that if the committee desired to know how judicial procedures should be improved it should await Judge Dimock’s judgment on what had transpired with respect to Matusow and the Flynn trial (in which appellant had been engaged), adding that this line of questioning was doing a disservice to the administration of justice. The Chairman then said, “That is what we are trying to find out. Now let us proceed, Mr. Counsel, and ask the proper questions to lay the foundation for this." 4
The majority of the court, while characterizing “a single question” as having “digressed into the subject of possible legislation controlling admission of Communist Party members to practice in Federal courts,” 5 conclude that the main thread of inquiry persisted and that the Chairman, apparently by the statement last quoted, returned to the Matusow subject. Surely the witness would not have so understood with the indisputable clarity required by Watkins. On the contrary, it seems reasonably clear the Chairman at that point was not returning to the Matusow subject but was repeating in substance what he had said with regard to the digression from that subject, namely, “The Chair thinks you should lay a foundation for that first by asking the witness if he is a member of *839 the Communist Party, if he has ever been, and so forth,” 6 the foundation referred to being with respect to the subject of practice in federal courts by Communists or those who defend them, not the Matusow case.
This view is consistent with the nature of the questions then asked the witness, a lawyer practicing in federal courts: The first question was, “Are you, Mr. Sacher, a member of the Communist Party, USA?” 7 His refusal to answer this and the question which soon followed as to whether he had ever been a member of the Party, constitute the bases for the first and second counts of the indictment. The third count rests upon his refusal to answer the related question as to membership in the Lawyers’ Section of the Communist Party, U.S.A., which he declined to answer on grounds previously stated as to the pertinency or relevancy of an inquiry concerning his political beliefs or affiliations. The Chairman answered this objection by pointing out to him the general duty, when it came to the security of our country, for the Congress to try to ferret out and expose these things as they relate directly to the national security, and “for that reason the Chair thinks that the question is proper and directs you to answer it.” 8 This explanation bearing on pertinency did not have a tendency to advise the witness that the questions were pertinent, or that the subcommittee considered them pertinent, to the Matusow inquiry, the subject the subcommittee was authorized to pursue.
We do not examine the question of pertinency in the light of the full authority of the parent Internal Security Subcommittee itself under its own charter, S.Res. 366, n. 1 supra; for the prosecution before us requires pertinency to the single inquiry involving the Matusow case. As to this, it is no help to say that this court can itself now conclude from its own appraisal of the nature and implications of the Matusow case that the questions were pertinent to that subject of inquiry; for the witness at the time the questions were asked was “entitled to have knowledge of the subject to which the interrogation is deemed pertinent.” 9 And the subject of the knowledge, of course, must be the authorized subject of inquiry.
Our approach to the case is with a consciousness that a First Amendment problem lies in the background, in which situation, as in United States v. Rumely, 345 U.S. 41 , 73 S.Ct. 543 , 97 L.Ed. 770 , the courts will “construe narrowly the resolution describing the committee’s authority.” 10 Moreover, “when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter.” 11 By the same reasoning perti-nency of the questions to the revealed delegation of power must be clear to the witness when he is testifying. The required clarity is not supplied when per-tinency is then explained to the witness in terms of a nondelegated subject of inquiry.
We have in mind also that our view of this case does not affect the authority of the Congress to obtain the information the subcommittee sought. It does not prevent Congress from ascertaining the facts from voluntary witnesses or other sources. The courts should be slow, however, to hold that a person shall be “compelled” over his objection publicly “to be a witness against himself” by supplying obviously self-incriminating information, particularly when the area protected by the First Amendment *840 is threatened, 12 though he does not rest his objection on the Fifth. In many instances reference to the Fifth is necessary to indicate that the answers might tend to incriminate the witness. Individual values sought to be protected by the Bill of Rights should cause the courts not to coerce unnecessarily by the penalty of the criminal law answers which might publicly convict the witness of unfaithfulness to a standard of good citizenship held by all but a few of his fellow citizens. Unless some strong need requires that the information be obtained in this particular manner from the witness himself we think it should be secured by other means. Be that as it may, we think it follows from Watkins that unless such public self-condemnation is sought by the investigative body with respect to a legislative subject clearly within the scope of that body’s authority, and unless this is made entirely clear to the witness, the witness may not be convicted of crime for refusing to respond. We cannot find on the record before the subcommittee that appellant should have known with the clarity required by Watkins that the questions were pertinent, and were asked as being pertinent, to the Matusow investigation. He could well have believed from their immediate context that they were asked as pertinent to the entirely different legislative purpose referred to by subcommittee counsel, namely, the practice in federal courts of Communists or persons defending Communists, a subject about which the two-member subcommittee conducting the hearing had not been authorized to take testimony. 13
. S.Res. 366, 81st Cong., 2d Sess., to which the Internal Security Subcommittee of the Senate Committee on the Judiciary owes its authority, provides,
*838 “A majority of the members of the [Judiciary] committee, or duly authorized subcommittee thereof, shall constitute a quorum for the transaction of business, except that a lesser number to be fixed by the committee, or by such subcommittee, shall constitute a quorum for the purpose of administering oaths and taking sworn testimony.”
96 Cong.Rec. 16872 (1950). See also S.Res. 180, 81st Cong., 2d Sess., 96 Cong. Ree. 1284 (1950); S.Rep. 1208, 82d Cong., 1st Sess. (1950). On February 7, 1955, nine Senators were appointed to the Subcommittee. (G.Ex. No. 9.) On April 20, 1955, the Subcommittee authorized the taking of sworn testimony by one member. (G.Ex. No. 6.)
When appellant appeared on April 19, 1955, only two members were present. Their authority under S.Res. 366 was limited to administering oaths and taking sworn testimony. They could not establish or change a subject under inquiry; that is “business” for the transaction of which there must be a majority of the Subcommittee present, as there was on February 21, 1955, when the subject under inquiry here involved was established. See Hearings Before the Subcommittee on Internal Security of the Senate Committee of the Judiciary, “The Significance of the Matusow Case,” 84th Cong., 1st Sess., pt. 1, at 1-3; pt. 10, at 827-40 (1955).
. Hearings, pt. 10, at 835 (1955).
. Ibid.
. Id. at 836.
. The Solicitor General, in his memorandum filed with the Supreme Court opposing certiorari, refers to the subject of practicing law as a “digression” from the Matusow matter. Brief in Opposition to Petition for Certiorari, pp. 14-16, Sacher v. United States, 354 U.S. 930 , 77 S.Ct. 1396 , 1 L.Ed.2d 1533 .
. Hearings, pt. 10, p. 835.
. Id. at 836.
. Id. at 838.
. Watkins v. United States, 354 U.S. at pages 208-209, 77 S.Ct. at page 1190, and see concurring opinion of Mr. Justice Frankfurter, 354 U.S. at page 217, 77 S.Ct. at page 1194.
. Id., 354 U.S. at page 198, 77 S.Ct. at page 1184.
. Ibid.
. That First Amendment rights were threatened by the questions is clear, Sweezy v. State of New Hampshire, 354 U.S. 234, 250 , 77 S.Ct. 1203 , 1 L.Ed.2d 1311 ; Konigsberg v. State Bar, 353 U.S. 252, 261 , 77 S.Ct. 722 , 1 L.Ed.2d 810 ; American Communications Ass’n v. Douds, 339 U.S. 382, 393 , 70 S.Ct. 674 , 94 L.Ed. 925 .
. We have considered the views of the majority of this court that the questions were made pertinent by the Chairman’s statement' to the witness that he was “subject to cross-examination * * * and that is what the committee is proceeding to do.” Hearings, pt. 10, p. 833. We do not give this statement the effect attributed to it by the majority; it preceded the digression with respect to practice in federal courts and did not prevent that digression from occurring. And as to Count 3, the Chairman’s statement after the witness’ refusal to answer, that the question was not related to the witness defending anyone in court but to his being present or a member of a group of lawyers presumably dedicated to the Communist Party, does not suffice to eliminate the diversion when the course of the hearing is read and considered as a whole. When so read and considered, the Chairman’s statement, while not implying criticism of the witness for defending a particular case in court, could reasonably have been thought by the witness to refer to the subject matter of the diversion rather than to the Matusow inquiry.