B-126919, APRIL 2, 1956, 35 COMP. GEN. 535

B-126919: Apr 2, 1956

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APPROPRIATION CHARGEABLE A UNITED STATES SENATOR SUMMONED TO TESTIFY IN A FEDERAL COURT AS A WITNESS FOR THE GOVERNMENT IN CONTEMPT PROCEEDINGS BASED ON THE CONDUCT OF THE DEFENDANT BEFORE A CONGRESSIONAL COMMITTEE IS ENTITLED TO PAYMENT OF EXPENSES UNDER 28 U.S.C. 1823 (A). SUCH EXPENSES ARE PAYABLE FROM LEGISLATIVE FUNDS. 1956: REFERENCE IS MADE TO THE LETTER OF FEBRUARY 3. YOU POSE THE FOLLOWING QUESTIONS: ASSUMING THAT THE SENATOR WAS TESTIFYING CONCERNING THE CONDUCT OF THE DEFENDANT BEFORE A COMMITTEE OF CONGRESS. THE QUESTIONS TO BE RESOLVED ARE: (1) UNDER WHICH SECTION ARE WITNESS FEES TO BE PAID? (2) IF UNDER 28 U.S.C. 1823 (A). ARE THE WITNESS FEES PAYABLE FROM LEGISLATIVE FUNDS?

B-126919, APRIL 2, 1956, 35 COMP. GEN. 535

TRAVELING EXPENSES - WITNESSES - UNITED STATES SENATOR; APPROPRIATION CHARGEABLE A UNITED STATES SENATOR SUMMONED TO TESTIFY IN A FEDERAL COURT AS A WITNESS FOR THE GOVERNMENT IN CONTEMPT PROCEEDINGS BASED ON THE CONDUCT OF THE DEFENDANT BEFORE A CONGRESSIONAL COMMITTEE IS ENTITLED TO PAYMENT OF EXPENSES UNDER 28 U.S.C. 1823 (A), WHICH APPLIES SPECIFICALLY TO OFFICERS AND EMPLOYEES OF THE UNITED STATES, RATHER THAN UNDER 28 U.S.C. 1821, WHICH APPLIES TO WITNESSES GENERALLY; AND SUCH EXPENSES ARE PAYABLE FROM LEGISLATIVE FUNDS.

TO THE ATTORNEY GENERAL, APRIL 2, 1956:

REFERENCE IS MADE TO THE LETTER OF FEBRUARY 3, 1956, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL (REFERENCE A3-5) REQUESTING OUR DECISION ON A MATTER INVOLVING THE DETERMINATION OF WHETHER A UNITED STATES SENATOR TESTIFYING IN FEDERAL COURT IN CONNECTION WITH CONTEMPT PROCEEDINGS SHOULD BE PAID WITNESS FEES UNDER 28 U.S.C. 1821, WHICH APPLIES TO WITNESSES GENERALLY, OR UNDER 28 U.S.C. 1823 (A), WHICH APPLIES SPECIFICALLY TO OFFICERS AND EMPLOYEES OF THE UNITED STATES.

YOU POSE THE FOLLOWING QUESTIONS:

ASSUMING THAT THE SENATOR WAS TESTIFYING CONCERNING THE CONDUCT OF THE DEFENDANT BEFORE A COMMITTEE OF CONGRESS, THE QUESTIONS TO BE RESOLVED ARE:

(1) UNDER WHICH SECTION ARE WITNESS FEES TO BE PAID?

(2) IF UNDER 28 U.S.C. 1823 (A), ARE THE WITNESS FEES PAYABLE FROM LEGISLATIVE FUNDS?

IN A DECISION OF MAY 22, 1901, 7 COMP. DEC. 764, THE COMPTROLLER OF THE TREASURY HELD THAT SECTION 850 OF THE REVISED STATUTES, WHICH PROVIDED THE BASIS FOR PAYMENT OF THE EXPENSES OF CLERKS AND OTHER OFFICERS OF THE UNITED STATES "SENT AWAY" FROM THEIR PLACES OF BUSINESS AS WITNESSES FOR THE UNITED STATES, WAS NOT APPLICABLE TO UNITED STATES SENATORS. THE REASON FOR THE HOLDING WAS THAT THE OFFICIALS COVERED BY THE STATUTE WERE THOSE WHO OCCUPIED SUBORDINATE POSITIONS SUBJECT TO THE CONTROL OF SUPERIOR OFFICERS, AND THAT UNITED STATES SENATORS OBVIOUSLY WERE NOT OF THAT CLASS.

SECTION 850 OF THE REVISED STATUTES WAS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, TO APPLY TO "ANY OFFICER OR EMPLOYEE OF THE UNITED STATES * * * SUMMONED AS A WITNESS FOR THE GOVERNMENT.' FAR AS HERE PERTINENT, THE LANGUAGE OF THE 1942 ACT IS CARRIED IN THE PRESENT LAW AS CODIFIED IN 28 U.S.C. 1823 (A). IT IS OUR VIEW THAT A UNITED STATES SENATOR IS AN ,OFFICER OF THE UNITED STATES" AS THAT EXPRESSION IS USUALLY UNDERSTOOD. SEE LAMAR V. UNITED STATES, 241 U.S. 103; 20 COMP. GEN. 509.

ACCORDINGLY AND SINCE THE PRESENT LAW DOES NOT CONTAIN THE RESTRICTIVE LANGUAGE IN EFFECT WHEN THE CITED DECISION OF THE COMPTROLLER OF THE TREASURY WAS RENDERED, WE CONCLUDE, IN ANSWER TO YOUR FIRST QUESTION, THAT A UNITED STATES SENATOR SUMMONED TO TESTIFY AS A WITNESS FOR THE GOVERNMENT UNDER THE CIRCUMSTANCES RELATED WOULD BE ENTITLED TO PAYMENT OF EXPENSES UNDER 28 U.S.C. 1823 (A) RATHER THAN UNDER 28 U.S.C. 1821.

YOUR SECOND QUESTION INVOLVES THE SECOND SENTENCE OF SECTION 1823 (A) WHICH READS AS FOLLOWS:

SUCH EXPENSES FOR APPEARING AS A WITNESS IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED, SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE UPON PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED.

THE ABOVE-QUOTED STATUTORY PROVISION CONTEMPLATES THAT THE "APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE" SHALL BE CHARGED WHERE THE FACTS OR INFORMATION ASCERTAINED BY THE OFFICER OR EMPLOYEE AS PART OF HIS OFFICIAL DUTIES FORMS THE BASIS OF THE CASE. CF. 23 COMP. GEN. 47; 23 ID. 879, B 48573, MAY 5, 1945.

THE STATUTORY PROVISION UPON WHICH CONTEMPT PROCEEDINGS WOULD BE BASED APPEARS TO BE 2 U.S.C. 192 WHICH PROVIDES IN PART AS FOLLOWS:

EVERY PERSON WHO HAVING BEEN SUMMONED AS A WITNESS BY THE AUTHORITY OF EITHER HOUSE OF CONGRESS TO GIVE TESTIMONY OR TO PRODUCE PAPERS UPON ANY MATTER UNDER INQUIRY BEFORE EITHER HOUSE, OR ANY JOINT COMMITTEE ESTABLISHED BY A JOINT OR CONCURRENT RESOLUTION OF THE TWO HOUSES OF CONGRESS, OR ANY COMMITTEE OF EITHER HOUSE OF CONGRESS, WILLFULLY MAKES A DEFAULT, OR WHO, HAVING APPEARED, REFUSES TO ANSWER ANY QUESTION PERTINENT TO THE QUESTION UNDER INQUIRY, SHALL BE DEEMED GUILTY OF A MISDEMEANOR * *

ALTHOUGH IT IS THE DUTY OF THE DEPARTMENT OF JUSTICE TO PROSECUTE SUCH PROCEEDINGS UNDER 2 U.S.C. 194 AND 5 U.S.C. 300, IT SEEMS CLEAR THAT THE TESTIMONY OF THE SENATOR WOULD SPECIFICALLY RELATE TO THE BASIS OF THE ACTION, WHICH IS THE REFUSAL OF THE DEFENDANT "TO ANSWER ANY QUESTIONS PERTINENT TO THE QUESTION UNDER INQUIRY" BY THE CONGRESSIONAL COMMITTEE. SUCH TESTIMONY WOULD BE IN RESPECT TO FACTS, KNOWLEDGE OF WHICH THE SENATOR ACQUIRED BY REASON OF HIS OFFICIAL POSITION.

ACCORDINGLY, THE EXPENSES IN QUESTION WOULD BE PAYABLE FROM LEGISLATIVE FUNDS. SEE IN THIS CONNECTION THE LEGISLATIVE APPROPRIATION ACT, 1956, 69 STAT. 502, UNDER THE HEADING " CONTINGENT EXPENSES OF THE SENATE.'