dissenting.
I will not join another opinion which creates a new exception to a basic constitutional right — the Fifth Amendment privilege against self-incrimination.
Prior to the decision today, a man could not be held in civil contempt for failure to perform an act which he is currently unable to perform, regardless of whether he was once able to perform the act and wrongfully failed to do so. See Maggio v. Zeitz, 333 U. S. 56, 72-74, and n. 6 (1948), and authorities cited therein.
Here the District Court made no finding that respondent possessed the documents at the time of the contempt proceeding. It stated only that “as president or other corporate officer [he] had possession or control, or both, of the books and records of said corporations.” (Emphasis added.) Al*763though “[u]nder some circumstances it may be permissible ... to reach the conclusion of present control from proof of previous possession,” Maggio v. Zeitz, supra, at 65, that is a determination to be made in the first instance by the trier of fact, not by this Court. In this case the District Court found only past possession, not present possession.
Since the District Court did not find that respondent was currently able to comply with the order to produce the documents, respondent has in effect been held in contempt simply because he invoked the Fifth Amendment when asked to testify at the contempt proceeding about the whereabouts of the documents. At the hearing the judge appointed counsel for the express “purposes of aiding [Rylander] in determining the propriety of the question and whether he desired to assert Fifth Amendment privileges to the questions which are asked.” The transcript of Rylander’s testimony reads as follows:
“EXAMINATION BY THE COURT
“Q. Mr. Rylander, you have filed an affidavit in which you say that you do not have the records that are the subject of this action; is that true, sir?
“A. That is correct your Honor.
“Q. Where are the records?
“A. I respectfully decline to answer on the advice of counsel and assert my Fifth Amendment.
“THE COURT: Thank you, sir, I don’t have to go beyond that, do I?
“MR. HARBISON [counsel for Rylander]: I have no questions your Honor.
“THE COURT: I am not going to direct him to answer because I don’t know whether I can, sir.
“MR. HARBISON: I am going to object if you ask him any other questions. The sole purpose was to make your record.
“THE COURT: What else needs to be done in your view to make the record, Mr. Robinson?
*764“MR. ROBINSON [counsel for the United States]: Your Honor, I move to strike, then, the affidavit on the grounds that I have not had the opportunity to cross-examine him about the contents of that affidavit.
“THE COURT: That motion will be taken under submission. Now you are in a position to make the motion. You may step down, Mr. Rylander.”
Respondent was entitled to invoke the Fifth Amendment privilege if his answers might have tended to incriminate him. As this Court stated in Curcio v. United States, 354 U. S. 118, 128 (1957):
“[F]orcing the custodian [of corporate records] to testify orally about the whereabouts of nonproduced records requires him to disclose the contents of his own mind. He might be compelled to convict himself out of his own mouth. That is contrary to the spirit and letter of the Fifth Amendment.”
If respondent’s invocation of the privilege was proper, he may not be held in contempt for failing to testify.
“[T]he power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege.” Kastigar v. United States, 406 U. S. 441, 444-445 (1972) (footnotes omitted).
*765I agree with the Court of Appeals that the proper disposition is to
“remand for the district court to make a finding concerning the validity of Rylander’s fifth amendment claim. If the court finds that Rylander’s fifth amendment claim is valid, the government will have an opportunity to show that the summoned records are in Rylander’s possession or under his control. The court should permit the government to introduce additional evidence in order to meet its burden. At this stage of the proceedings, . . . the government has not met its burden of showing by clear and convincing evidence that Rylander is in contempt.” 656 F. 2d 1313, 1319-1320 (citations omitted).