The appellant was found guilty by a jury after a trial in the District Court on an indictment reading as follows:
“(1) Pursuant to Public Law 601, 79th Congress, 60 Stat. 812, and House Resolution 5, 80th Congress, dated January 3, 1947, including the Rules of Congress therein adopted and amended, the House of Representatives was empowered to and did create the Committee on Un-American Activities, having duties and powers as set forth in said Resolution.
“(2) On the 5th day. of March, 1947, at the Southern District of New York, Leon Josephson was summoned as' a witness, by authority of the House of Representatives through its Sub-Committee of the Committee on Un-American Activities, to be sworn *85and to testify before the said Sub-Committee on matters of inquiry committed to said Committee.
“(3) Leon Josephson did appear before the said Sub-Committee, pursuant to subpoena served upon him, at its session in the Federal Court Building, Southern District of New York, on March 5, 1947, but then and there refused to be sworn and to give any testimony before said Committee (Title 2, United States Code, Section 192).”
The above named statute under which he was indicted provides in so far as presently pertinent that: “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 committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, * * *.” Rev. Stat. § 102, as amended, 52 Stat. 942, 2 U. S.C.A. § 192.
The Committee on Un-American Activities has been duly authorized under the Legislative Reorganization Act of 1946 to conduct investigations “of (i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.” 60 Stat. 812, 828. The provisions of this statute were incorporated in the rules of the House of Representatives of the Eightieth Congress by House Resolution 5, January 3, 1947.
After motions to set aside the verdict and in arrest of judgment had been denied, sentence was imposed and the appeal is from the final judgment. The appellant raises questions as to the sufficiency of the indictment; the sufficiency of the proof to support the verdict; the trial court’s instructions to the jury; and the constitutionality of the law authorizing the committee to investigate. He is joined on the last point' by two amici who have filed briefs by leave of court.
The above quoted indictment conforms to the requirements of Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, 327 U.S. 821, 839, and was rightly held sufficient. Indeed, it is a good example of “a plain, concise and definite written statement of the essential facts constituting the offense charged.” It enabled the appellant to understand the nature of the accusation, gave him the needed information to prepare his defense, and made it possible for him to plead the judgment in bar of another prosecution for the same offense should occasion for doing so arise. That, as we have often held, is enough to make an indictment good. United States v. Fried, 2 Cir., 149 F.2d 1011, certiorari denied, 326 U.S. 756, 66 S.Ct. 97, 90 L.Ed. 454; United States v. Wodiska, 2 Cir., 147 F.2d 38; United States v. Achtner, 2 Cir., 144 F.2d 49.
The statute, 2 U.S.C.A. § 192, embraces two offenses. See United States v. Murdock, 290 U.S. 389, 397, 54 S.Ct. 223, 78 L.Ed. 381. The first consists of the willful default of one who has been summoned as a witness. This offense, obviously, may be committed by willfully refraining, without adequate excuse, from appearing in response to a lawful summons and it may also be committed by appearing and then willfully terminating attendance before being excused. Townsend v. United States, 68 App.D.C. 223, 95 F.2d 352, certiorari denied 303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121. Perhaps whatever is the equivalent of an unexcused withdrawal may, if done willfully, be a termination of attendance and a violation of this part of the statute. As willfulness was not charged in the indictment, the trial judge correctly held that the appellant was not on trial for a - default in appearance or in attendance. It is argued, however, that, if guilty at all, he is. guilty of a willful default and that it was error to hold that he was properly indicted for a violation of the second branch of the statute. The second branch makes *86refusal to answer a question pertinent to the question under inquiry a misdemeanor but does not include “willfulness,” however it may be defined, as an element of the'offense. See United States v. Murdock, supra, 290 U.S. at 397, 54 S.Ct. 223, 78 L.Ed. 381. The answer to this contention is that, though a refusal to answer proved to be willful may be sufficient to support a conviction on an indictment for a default, Townsend v. United States, supra, it does not follow that the same refusal to answer may not be prosecuted under the second branch of the statute. That is to say, a refusal to answer any question pertinent to any matter under inquiry is a violation of the second branch of the statute as much when the refusal is “willful” as when it is not.
The indictment being sufficient and properly based upon the second branch of the statute, the next issue is whether there was enough evidence to support the verdict. In this connection it is to be noted, and the appellant rightly concedes, that at least as regards the second branch of the statute whether or not his appearance before the sub-committee was in response to a lawful subpoena lawfully served is immaterial. The language of the Supreme Court is even broader: '“Section 102 [of the Revised Statutes, now 2 U.S.C.A. sec. 192] plainly extends to a case where a person voluntarily appears as a witness without being summoned as well as to the case of one required to attend.” Sinclair v. United States, 279 U.S. 263, 291, 49 S.Ct. 268, 271, 73 L.Ed. 692.1 The evidence was ample for the jury to find with the requisite certainty that the appellant appeared before the sub-committee and refused to be sworn or to testify. He was called as a witness by the chairman of the sub-committee and' then and there refused to be sworn and, when asked upon what ground, stated, “I wish to raise the question of the constitutionality of this committee, and I propose to take the case through the courts to the United States Supreme Court if necessary.” He was then asked by Mr. Stripling, the chief investigator for the committee, to stand and be sworn and again refused, saying that he contested “the right, the legality of this committee, to examine me.” After the appellant’s attorney had been identified and heard and had submitted a written statement, and Mr. Stripling had called attention to the situation regarding the issuance of subpoenas and their service upon the appellant, the following occurred:
“The Chairman: Mr. Josephson, will you stand and be sworn? Mr. Josephson: I will not be sworn.
“Mr. Stripling: Will you stand? Mr. Josephson: I will stand.
(Mr. Josephson stands.)
“Mr. Stripling: Do you refuse to be sworn? Mr. Josephson: I refuse to be sworn.
“Mr. Stripling: You refuse to give testimony before this sub-committee? Mm Josephson: Until I have had an opportunity to determine through the courts the legality of this committee.
“The Chairman: You refuse to be sworn, and you refuse to give testimony before this committee at this hearing today? Mr. Josephson: Yes.”
The appellant was then excused subject to call either by the sub-committee or the full committee.
The appearance and the refusal of the appellant' to testify before the sub-committee thus being shown, the jury had evidence from which it could find, as its verdict shows it did, that the appellant refused to answer any question pertinent to. the question under inquiry before the subcommittee. It is obvious that the unqualified refusal then and there to testify was tantamount to a refusal to answer any questions at all relating to the matter being investigated. After what had transpired, as shown above, the propounding of one or more specific questions would have been both futile and time-wasting and appellant’s renewed or repeated refusal to answer them would have added nothing. He had made it crystal clear that *87he was determined not to answer any questions concerning the subject matter under investigation. Any argument to the effect that it was not shown that he refused to reply to any such questions can only be regarded, therefore, as wholly specious. The prosecution met, then, the requirement of Sinclair v. United States, supra, at pages 296, 297 of 279 U.S., at page 273 of 49 S.Ct., that it “plead and show that the question pertained to some matter under investigation” by pleading and showing that the appellant refused to answer any and all pertinent questions.
The appellant makes some contention to the effect that there was a question of fact as to whether he “had refused to give any testimony at all, irrespective of being sworn, or had merely refused to give sworn testimony, never having been intelligibly invited to give unsworn testimony,” and that this “question” was never properly submitted to the jury. Section 192, his argument runs, does not make it a crime to refuse to be sworn, and this committee in fact, as he states he can show if permitted to do so, has taken unsworn testimony. The evidence which we have in part recited above plainly shows, however, that the appellant refused both to be sworn and, as a separate and distinct matter, to give any testimony “until I have had an opportunity to determine through the courts the legality of this committee.” Consequently this so-called issue of fact is illusory at best and we need not decide whether a refusal to be sworn would alone have violated the statute.
The appellant further claims that he was prejudiced by the trial judge’s refusal to instruct the jury “that no evidence has been adduced to show that any matter was under inquiry before the sub-com.mittee on March 5, 1947.” This refusal was without error. The trial court properly took judicial notice of the Legislative Reorganization Act of 1946, 60 Stat. 812, 828, setting forth the duties and powers of the Committee on Un-American Activities. A copy of House Resolution 5, January 3, 1947, incorporating that Act into the rules of the House of Representatives of the Eightieth Congress, was admitted in evidence without objection. This was sufficient evidence that some matter was under inquiry before the sub-committee and that is enough to meet this broad objection.
All prior questions having been decided against the appellant, we have next to determine what issues as to the constitutionality of the authorizing statute and resolution he can raise, and then to pass upon those. The appellant’s arguments are several and will be considered in turn.
He first claims that, since Section 192 does not in and of itself provide an explicit guide to conduct, i. e., set forth what questions are pertinent to the matter under inquiry, but requires reference to the authorizing act, the latter is for purposes of this case a penal statute. Cf. M. Kraus & Bros., Inc. v. United States, 327 U.S. 614, 621, 622, 66 S.Ct. 705, 90 L.Ed. 894. He then argues that, if this be true, the statute is so vague and indefinite as to be unconstitutional, relying upon Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888; Herndon v. Lowry, 301 U.S. 242, 261, 57 S.Ct. 732, 81 L.Ed. 1066; and other similar cases. But this point is not available to the appellant. By refusing to testify at all he refused to answer any questions that were pertinent as well as those that were not and thus he was not put to the decision he argues could not have been made, viz., whether or not any particular question was pertinent. We may, therefore, put aside his contention that the language of the authorizing statute is so vague that a witness before the committee has no criteria to indicate in doubtful cases-what questions asked would have the requisite pertinence.2 Here it is enough to say, and the appellant as much as concedes, *88that some questions could and perhaps would have been put that were pertinent to the inquiry, no matter how - vague were these criteria. At the very least the language of the authorizing statute permits investigating the advocacy of the idea that the Government or the Constitutional system of the United States should be overthrown by force, rather than modified by the peaceful process of amendment of the Constitution set forth in Article V. The vice of vagueness in that language, if any, lies in the possibility that it may authorize, though we do not decide that it does so, investigations relating to the advocacy of peaceful changes. The appellant could, for example, have been asked whether he knew of propaganda activities designed to bring about the immediate destruction of the Government by violence and the question, as he clearly would have known, would have been pertinent. Having refused to answer any questions whatsoever, he can-, not now claim that the authorizing statute-is invalid merely because it did not furnish him with criteria that were sufficiently definite to permit him to determine the pertinency of some question that might never have been asked him.
It is next seriously argued that any investigation made by the committee as now authorized would necessarily have as its subject the “private affairs of private citizens” and it is pointed out that in the only case3 in which the Supreme Court has passed on a resolution empowering that kind of an investigation the resolution was held invalid. Whether that case should now be treated as barring an investigation because private affairs may be made public is open to question.4 This, however, we need not decide. It is sufficient to say that the subject of the Committee’s investigations was, as the statute and resolution show, the extent, character, and objects of propaganda activities in this country which were designated Un-American; the diffusion within this country of subversive and' Un-American propaganda which attacks the principle of the form of government that is guaranteed by the Constitution; and all related questions that would aid Congress in any remedial legislation. This subject was sufficiently broad in scope so that the information sought to be gained for the use of the Congress would be comprehensive and adequate, but was nevertheless confined to certain types of propaganda about the potency of which there can be little doubt. If such propaganda takes the form of, for example, advocacy of the overthrow of the Government by violence, it is rightfully called “Un-American” and a sensible regard for the self-preservation of the nation may well require its investigation, with a view to the enactment of whatever remedial legislation may be needed or to the amendment thereof.5 One need only recall the activities of the so-called fifth columns in various countries both before and during the late war to realize that the United States should be alert to discover and deal with the seeds of revolution within itself. And if there be any doubts on the score *89of the power and duty of the Government and Congress to do so; they may be resolved when it is remembered that one of the very purposes of the Constitution itself was to protect the country against danger from within as well as from without. See The Federalist, Nos. II-X.6 Surely, matters which potentially affect the very survival of our Government are by no means the purely personal concern of any one. And investigations into such matters are inquiries relating to the personal affairs of private individuals only to the extent that those individuals are a part of the Gov- , ernment as a whole. The doctrine of Kilbourn v. Thompson, supra, is, then, not here involved. Sinclair v. United States, supra, 279 U.S. at page 294, 49 S.Ct. at page 272.
The appellant contends, however, that this committee’s investigations are made not for any legislative or remedial, purposes, but only in order to “expose the1 political beliefs and affiliations of individuals and groups.” We are told that these inquiries are “an imposition upon the individual or group investigated” and that “notoriety is an effective method of silencing and discrediting a political opponent.” In contrast to this, however, may be compared the recently published Report of the President’s Committee on Civil Rights {Government Printing Office 1947) where it is stated that “The principle of disclosure is, we believe, the appropriate way to deal with those who would subvert our democracy by revolution or by encouraging disunity and destroying the civil rights of some groups (P. 52).” It is pointed out that “In the political realm, the Federal Communications Commission, the Post Office Department, the Qerk of the House of Representatives, and the Secretary of the Senate — all of' these under various statutes —are required to collect information about those who attempt to influence public opinion (Pp. 52-53).”7 And, indeed, one of the committee’s several recommendations to strengthen civil liberties is “The enactment by Congress and the state legislatures of legislation requiring all groups, which attempt to influence public opinion, to disclose the pertinent facts about themselves through systematic registration procedures (P. 164).” But we have no occasion now to decide whether a Congressional investigation may have exposure as its principal goal or when, if ever, a statute may.8 It is sufficient to say that the authorizing statute contains the declaration of Congress that the information sought is for a legislative purpose and that fact is thus established for us, Barry v. United States ex rel. Cunningham, 279 U.S. 597, 619, 49 S.Ct. 452, 73 L.Ed. 867; McGrain v. Daugherty, 273 U.S. 135, 176-180, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1, regardless of any statement by the Committee or its members intimating the contrary. The fact that there may be “exposure” incidental to the inquiry goes only to the question of freedom of speech, which we discuss below.
It is, of course, well settled that Congress may make investigations in aid of legislation. E.g., McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1; United States v. Norris, 300 U.S. 564, 573, 57 S.Ct. 535, 81 L.Ed. 808. And it is immaterial that in the past this particular committee has proposed but little legislation. Townsend v. United States, supra, 68 App.D.C. at page 226, *9095 F.2d at page 355. Information gained by a committee of this nature, provided its search for the truth may not be frustrated by such obstructive tactics as those employed by the appellant, might well aid Congress in performing its legislative duties, viz., in deciding that the public welfare required the passage of new statutes or changes in existing ones or that it did not. Cf. Landis, supra, at pages 208-10. Some of these duties are imposed not only by the principle that the Government shall preserve itself, but, of course, by express provisions in the Constitution. Thus among the purposes of the Constitution, as expressed in the Preamble, are to “insure domestic Tranquility,” to “provide for the common defense,” to “promote the general welfare,” and to “secure the Blessings of Liberty.” Art. 1, sec. 8 gives Congress the power to “provide for the common Defense,” “to raise and support Armies,” “to provide and maintain a Navy,” “to make Rules for the Government and Regulation of the land and naval Forces,” and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Art. IV, Sec. 4 provides that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion” and on application “against domestic Violence.” More specifically, as Judge Holtzoff said in United States v. Bryan, D.D.C., 72 F.Supp. 58, 62: “That the subject of unAmerican and subversive activities is within the investigating power of the- Congress is obvious. Conceivably, information in this field may aid the Congress in legislating concerning any one of many matters, such as correspondence with foreign governments (U.S.C.A. Title 18, § 5); seditious conspiracy (Id. § 6) ; prohibition of undermining the morale of the armed forces (Id. § 9); suppression of advocacy of overthrow of the Government (Id. § 10); the registration of organizations carrying on certain types of propaganda (Id. §§ 14 and 15) ; qualifications for entering and remaining in Government service; the authorization of Governmental radio broadcasts to foreign countries; and other innumerable topics. Similarly such information may be helpful in appropriating funds.” Though this list is ample for our purposes,, it may be added that newspapers and other periodicals must file and publish statements showing their management and ownership-to obtain second-class mailing privileges, 39 U.S.C.A. § 233; and foreign agents-must register with the Attorney General if they engage in political activity, 22 U.SC.A. §§ 691, 611 et seq.
Despite all this it is argued in behalf of this appellant that the First Amendment forbids the gathering of information by a duly authorized Congressional committee or its sub-committee regarding propaganda activities. If this be true, the Constitution itself provides immunity from discovery and lawful restraint for those who would destroy it. The theory seems to be jj' that the investigation of Un-American or [subversive propaganda impairs in some way ¡¡not entirely clear the freedom of expression ¿guaranteed by the Bill of Rights.
It may be doubtful whether this appellant can raise the issue without more to show that the free exercise of his rights has been impaired in some way. And the statute not purporting to license the dissemination of ideas, the case seems unlike Thornhill’s, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and it perhaps would not be difficult for us to rest our decision on the ground that the appellant has no standing to challenge the statute on its face. We shall resolve this doubt in favor of the appellant, however, in order to give him the full benefit of being able to contest this exceedingly important point.
The argument of the appellant and the amici is in substance that the Committee’s power to investigate is limited by Congress’ power to legislate; Congress is prohibited from legislating upon matters of thought, speech, or opinion; ergo, a statute empowering a Congressional committee to investigate such matters is unconstitutional. The mere statement of this syllogism is sufficient to refute it. Congress obviously can use information gathered by this Committee to pass legislation not encroaching upon civil liberties, as above noted. The appellant’s argument necessarily, therefore, is *91reduced to the absurd proposition that because the facts resulting from the Committee’s investigations conceivably may also be utilized as the basis for legislation impairing freedom of expression, the statute authorizing such investigations must be held void. But clearly Congress can and should legislate to curtail this freedom9 at least where there is a “clear and present danger” that its exercise would, as by armed rebellion or external attack, imperil the country and its Constitutional system, including, until amended, the peaceful process of amendment. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470. Such legislation might ultimately be the only means for the preservation of this freedom. To draw again from the Report of the President’s Committee on Civil Rights, “The most immediate threat to the right to freedom of opinion and expression” consists of two groups, the Communists' and Fascists, both of which “often use the words and symbols of democracy to mask their totalitarian tactics. But their concern for civil rights is always limited to themselves. Both are willing to lie about their political views when it is convenient. They feel no obligation to come before the public openly and say who they are and what they really want (P. 48).”10 At the same time, as yet Congress has not determined that there is such a clear and present danger from these groups that their freedom to attempt to influence the public to adopt their views should be abridged,11 and until Congress validly does so, if ever, that freedom should be zealously guarded. But surely this does not mean that Congress cannot collect facts that would enable it to ascertain whether such a danger exists from these quarters or any others.
The appellant’s argument runs counter to the very purpose of the First Amendment. The power of Congress to gather facts of the most intense public concern, such as these, is not diminished by the unchallenged right of individuals to speak their minds within lawful limits. When speech, or propaganda, or whatever it may at the moment be called, clearly presents an immediate danger to national security, the protection of the First Amendment ceases. Congress can then legislate. In deciding what to do, however, it may necessarily be confronted with the difficult and complex task of determining how far it can go before it transgresses the boundaries established by the Constitution. What has elsewhere been said is equally applicable here: “The power of Congress to exercise control' over a real estate pool is not a matter for abstract speculation but one to be determined only after an exhaustive examination of the problem. Relationships, and not their probabilities, determine the extent of Congressional power. Constitutionality depends upon such disclosures. Their presence, whether determinative of legislative or judicial power, cannot be • relegated to guesswork.” Landis, supra at page 217. Needless to say, this statement is all the more apt where the subject about which Congress is contemplating legislation is not abuse of power by a particular monopoly but at least partially concerns the delicate matter of free speech.
And it may be added, it is not for the courts to assume in advance that Con*92gress will pass any legislation in violation of the First Amendment. We are told that ■ there is no presumption of constitutionality where civil liberties are concerned. See, e. g., Thomas v. Collins, 323 U.S. 516, 529, 530, 65 S.Ct. 315, 89 L.Ed. 430; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Note, 40 Col.L.Rev. 531. But though this may well be true as regards already enacted legislation, it certainly does not mean, as the appellant would in effect have us believe, that we are to consider that legislation not yet passed is presumptively unconstitutional. Rather, the courts are to presume, until the contrary appears, that Congress will fulfill its obligation to defend and preserve the Constitution.
Thus the only real basis for the appellant’s contention seems to be that in some way the First Amendment in protecting freedom of speech guaranties such privacy in speaking as the particular speaker may desire, and that this privacy is violated by whatever disclosure occurs incidental to an investigation for legislative purposes. This is a fallacy essentially based upon the idea that the Constitution protects timidity. Perhaps there are those who would indulge in any sort of -propaganda activities covertly but not if they thought that what they did would become publicly known, and perhaps as regards them fear of disclosure is a deterrent which bolder persons would not heed. But this fear is not created by any legal restriction upon their right to conduct propaganda activities by means of speaking freely if they care to do so. They must, of course, take their chances, just as does any one else, that they keep within the bounds of lawful peaceful persuasion and refrain from activities looking toward the destruction of the Government by force. But short of that there is no restraint resulting from the gathering of information by Congress in aid of its power and duty to legislate which does not flow wholly from the fact that the speaker is unwilling to advocate openly what he would like to urge under cover. Until there is a valid law to the contrary, he may with impunity say what he pleases so far as legal process is concerned and, that is the extent of the freedom of speech guaranteed any one by the Constitution.
This leaves us with the final contention advanced in behalf of the appellant, that the statute in question has been so discriminately administered that it is unconstitutional, citing Yick Wo v. Hopkins, 118 U.S. 356, 373, 374, 6 S.Ct. 1064, 30 L.Ed. 220. The appellant is, of course, correct in arguing that, although Yick Wo v. Hopkins, supra, and similar cases are primarily concerned with the “equal protection of the laws” clause under the Fourteenth Amendment, the discriminations prohibited by that clause also violate tho Fifth Amendment, where they amount to a denial of due process-. See Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774. The alleged discrimination here, apparently, is that while some matters have been thoroughly and diligently investigated others have not, and in support of these allegations we are cited to various acts of the committee of its predecessors and their' members, many of which do not relate to this alleged “discrimination” but which, to the extent that they have occurred, cannot be and have not been condoned. See, e. g., United States v. Lovett, 328 U.S. 303, 308-313, 66 S.Ct. 1073, 90 L.Ed. 1252; Ex parte Frankfeld, D.C.D.C., 32 F.Supp. 915. But we think the discrimination argument beside the point. Certainly, if the question were one of Congress’ legislating, it could validly legislate regarding one type of propaganda and not another, at least if there were a clear and present danger from the former and not the latter. Or even if there were such a danger from both, it might well he held that Congress could legislate as regards one and not the other, on the well established principle that the legislature need not strike at the whole of an evil, but only at a part. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 79, 31 S.Ct. 337, 55 L.Ed. 369, Ann.Cas.l912C, 160; Keokee Coke Co. v. Taylor, 234 U.S. 224, 227, 34 S.Ct. 856, 58 L.Ed. 1288; Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 274, 275, 60 S.Ct. 523, 84 L.Ed. 744, 126 A.L.R. 530; Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 94, 66 S.Ct. 850, 90 L.Ed. 1096. Clearly the Congressional power to investigate is as flexible as its power to legislate, once the latter power *93is established. That it is established, at least for purposes of this case, seems abundantly clear.
Judgment affirmed.
CLARK, Circuit Judge, dissents with separate opinion.
The part of the indictment that charged the appellant with having been “summoned as a witness” and appearing “pursuant to subpoena” may be regarded as surplusage. Thus the trial court did not err in failing to submit the question of service to the jury.
But see Mr. Justice Holmes’ oft-quoted statement in Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232, that: “ * * * the law is full- of instances where a man’s fate depends on his estimating rightly, that is, as a jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.” See also Holmes, J., in United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 74 L.Ed. 508.
Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; see also Sinclair v. United States, supra, 279 U.S. 263 at pages 292-294, 49 S.Ct. 268, 73 L.Ed. 692.
See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 219: “Kilbourn v. Thompson also resurrects the argument made by John Quincy Adams in 1834 that the non-official conduct of a citizen is immune from Congressional scrutiny. Some quality akin to the ‘right of privacy’ seems to attach itself as a penumbra to this conduct, sheltering it from the probing inquiries of Congressional committees. Established privileges . of immunity, of' course, exist before such committees as well as before courts of law. But the mere fact that by a subpoena duces tecum a court is subjecting to the public gaze the private affairs or private business of a citizen has never been suggested as a bar to the court’s process.”
It is to be noted that the Subversive Activities Statute, 54 Stat. 670, 18 U.S. C.A. §§ 9-13, makes it a crime, among other things, “to knowingly or willfully advocate * * * overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government; * * The constitutionality of this statute has been upheld in Dunne v. United States, 8 Cir., 138 F.2d 137, certiorari denied, 320 U.S. 790, 64 S.Ct. 205, 88 L.Ed. 476, rehearing denied, 320 U.S. 814, 64 S.Ct. 260, 88 L.Ed. 492.
E.g., No. II (John Jay): “Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first. * * * ”
The Report further says: “The ultimate responsibility for countering totalitarians of all kinds, rests, as always, with the mass of good democratic Americans, their organizations and their leaders. The federal government must set an example of careful adherence to the highest standards in guaranteeing freedom of opinion and expression to its employees. Beyond that it ought to provide a source of reference where private citizens and groups may find accurate information about the activities, sponsorship, and background of those who are active in the market place of public opinion (P. 53).”
But cf. Lewis Publishing Co. v. Morgan, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190 (upholding 37 Stat. 553, 554, 39 U.S.C.A. § 233, which required that applicants for second-class mailing privileges file sworn statements setting forth the names and addresses of their editors, publishers, stockholders, etc.).
And indeed has legislated. E.g., the Espionage Act of 1917, 40 Stat. 217, 50 U.S.C.A. §§ 31-42. The constitutionality of this act was upheld in Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; Heynacher v. United States, 8 Cir., 257 E. 61, certiorari denied 250 U.S. 674, 40 S.Ct. 54, 63 L.Ed. 1201; Dodge v. United States, 2 Cir., 258 E. 300. 7 A.L.R. 1510, certiorari denied 250 U.S. 660, 40 S.Ct. 10, 63 L.Ed. 1194; Equi v. United States, 9 Cir., 261 F. 53, certiorari denied 251 U.S. 560, 40 S.Ct. 219, 64 L.Ed. 414. See also the Subversive Activities Act, 54 Stat. 670, 18 U.S.C.A. §§ 9-13, upheld in Dunne v. United States, 8 Cir., 138 F.2d 137, certiorari denied 320 U.S. 790, 64 S.Ct. 205, 88 L.Ed. 476, rehearing denied 320 U.S. 814, 64 S.Ct. 260, 88 L.Ed. 492.
See also Dunne v. United States, supra, 138 F.2d at pages 143, 144.
Except to the extent that they or their members may violate 54 Stat. 670, 18 U.S.C.A. §§-9-13.