I concur in the result reached but not in some of the things said in the opinion of Judge'Denman, in which two of the other *488members of the court have joined. The Smith Act provides that under certain circumstances membership in, or affiliation with a group of the kind described in the Act is in itself one of the elements of a crime. I think, therefore, that the proof that indictments based on this very section of the Act charging violation by virtue of membership in the Communist party were pending in New York, was sufficient to make the showing of reasonable ground to apprehend danger under the rule in United States v. Burr, Fed.Cas. No. 14,692e, United States v. Mason, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198, and United States v. Rosen, 2 Cir., 174 F.2d 187, certiorari denied 338 U.S. 851, 70 S.Ct. 87. I believe that this is all that need be said to dispose of this case, and of the Kasinowitz and Doran cases, this day decided.
I am unable to perceive how any “peculiar selectivity” of the witnesses called, or that they all had the same attorneys, has any bearing on the decision. For aught that I know they may have employed the same attorneys because they were too poor to hire attorneys separately. And I think if one only of these witnesses had been called, without any “selectivity” with others, his rights would have been exactly the same.
As for the rejected offers of proof, I think it a mistake to give them the blanket blessing which Judge Denman does. The fact that the majority of the court agree that except for the offer as to Ned Sparks, the case can be disposed of without the offered and rejected evidence, demonstrates that we have found such offered and rejected evidence unnecessary to the decision. The question of how far a witness in such a case as this may inquire into the plans and intentions of the prosecutor is a matter which has not been sufficiently-briefed nor adequately considered in this court. While in the Alexander case the offered evidence along this line related to public announcements of the Attorney General yet I think we should not by ruling upon matters which, are not necessary to the decision encourage conclusions as to how far a rule admitting such evidence might logically lead. If some ojhe testifies as to an alleged public statement by the prosecutor, must the prosecutor either acquiesce in the witness’ version, or take the stand and submit to cross-examination? In the companion case of Kasinowitz, the appellants called the United States Attorney and sought to interrogate him along these lines. They caused to be issued a subpoena for the Attorney General and in their affidavit opposing the Government’s motion to quash the subpoena stated their purpose to examine the Attorney General as to the Department’s plans and intended course of action. My own opinion is that it would 'be intolerable interference with the work of the United States Attorney if he must be subjected to an inquisition as to his plans and purposes in respect to future prosecutions merely because some recalcitrant witness chooses to test his constitutional privilege. I think this is not in the public interest. When a case arises in which the point is necessary to the decision the courts may well hold that this sort of evidence should be excluded because within the principle of those decisions which reject certain matters otherwise relevant for what Mr. Wigmore calls “extrinsic policy”. All of this, I think, shows the unwisdom of trying to cross this bridge before we get there.
On the other side it should be said that a witness urging his privilege against incrimination should not be required to prove that the government had a presently formed plan to prosecute him, or others in his situation. When the witness has shown reasonable apprehension of danger, he has shown all that is required of him.
I think the approval of the offer of newspaper articles is particularly unfortunate. 1 know that in United States v. Weisman, 2 Cir., 111 F.2d 260, the court paid attention to newspaper stories, but I think it did so only in passing, and after commenting upon the evidence that this particular defendant had himself been investigated. In any event, I do not subscribe to any such rule of evidence, particularly in a case where the matter is unnecessary to the decision.
Finally, I think there is no warrant in the record, or in the legal questions before us, for the suggestion that the Special Assistant to the Attorney General pursued *489“tactics tending to put the witness off his guard”, or that he was calculatingly and in a reprehensible manner holding out a “lure” to the witnesses.
This court does not know, either from the record, or from its own knowledge, that the government attorney was not telling the truth. What he said to the winess-es is wholly immaterial as concerns their rights, for if what he said was true, it would still furnish no guaranty that the witnesses would not be the next on the list of suspects. I therefore think it is enough to say that it was not for the prosecutor either to grant or to withhold immunity.
We do know that the witnesses were all well represented by counsel and none failed to preserve his rights. We are not sitting in judgment on the prosecutor, and I would not like to comment on the propriety of what he did until I have heard his account of the matter.
I am therefore constrained thus not to permit Judge Denman’s opinion to be more than that of a minority of the court.
MATHEWS, HEALY, and BONE, Circuit Judges (dissenting) :
We think that the judgments in all these cases should be affirmed.