Why the Warren Commission?

But suppose there is no possibility of a decision because the question is one which, even if brought to the Court, could not be answered by it. Such has been the case with “political questions”—questions whose decision has been left by the court to the political branches of government.⁷⁹ Such, too, is the case with a question which raises no justiciable controversy.⁸⁰ In these circumstances a guess as to what the Court would do is not an appropriate test of constitutionality, because constitutionality has ceased to have a judicial meaning.

It is possible to argue that this rule applies to the Warren Commission investigation, since all the testimony taken by it was given voluntarily. An actual court test could have been brought, of course, both as to the validity of the exposure and the relevance of the questions asked, had some witness refused to answer and been compelled to answer under threat of contempt. While an executive agency does not have an inherent power to subpoena witnesses and punish them for contempt if they balk,⁸¹ Congress may grant the subpoena power to the agency and authorize it to seek judicial aid in compelling testimony. Not only was this done in the present case, but Congress authorized the Commission to grant immunity to any witness who refused to testify on grounds of compulsory self-incrimination.⁸² The Commission, however, never exercised any of these powers given it by Congress. All the witnesses testified willingly before the Commission, and, with one exception, answered all the questions they were asked.⁸³ Can one question, even theoretically, the constitutionality of an investigation in which testimony is wholly voluntary? Why isn’t an administrative agency, like any private individual, entitled to ask questions, even out of mere curiosity, as long as people will answer them voluntarily? If no governmental force is being employed to coerce the answers, then the power of government is not being used, and the constitutional protections against government action simply do not apply. No justiciable issue is raised because no constitutional rights have been violated.

Tempting as this suggestion is, it does not apply in the present case because the Warren Commission did use governmental power, and hence did pose potentially justiciable issues. Although the Commission did not have to use its subpoena power, it does not follow that the testimony was wholly voluntary and free from official coercion. The Supreme Court has held that even the informal questioning of police officers can amount to governmental force and intimidation,⁸⁴ and as Mr. Rankin put it, “You can’t discount the fact that its power to subpoena had the full endorsement of Congress and the President. Anyone who refused to cooperate willingly had to face up to the fact that the Commission could compel him to cooperate unwillingly.”⁸⁵ Thus it seems apparent that the Warren Commission was exercising governmental authority to obtain evidence, so a legitimate question as to its authority can be raised, despite the fact that no challenge was brought in the courts.

Little need be said in defense of the Commission and its report. The tremendous public demand for information, the damage to public morale and faith in our institutions from unanswered rumors, make abundantly clear the vital importance, in times of public catastrophe, of telling the people what has really happened. Had the talk of right and left-wing conspiracies been allowed to go unchecked the consequences to our political system might well have been disasterous. Nor can it be argued that the Commission was costly in terms of competing values. While not everyone was completely satisfied by the report, only a few people felt injured by it.⁸⁶ Surely the advantages far outweigh the disadvantages.

If, however, we consider what might have happened, the balance sheet is a good deal less one-sided. Suppose, for example, the Commission had turned up evidence that someone else—some unanticipated suspect—might have killed President Kennedy. Or, what is practically the same, suppose it turned up one or more accomplices to the killing. What does it do? Does it back gracefully out of its role as chief investigator, letting the normal law enforcement agencies take over? Does it turn its information over to the Dallas police? If so, it ceases to serve the function of satisfying public curiosity. If not, what of the rights of this new suspect? He could be granted immunity and forced to testify, but it is unlikely that that would serve the public interest. Could they investigate him as they did Oswald? His past? His relationships? His private papers? Could they announce that he was guilty of killing the President? That he was not guilty? That he was insane? The investigation of crime has traditionally been in the hands of prosecutive and police forces, which have a legitimate interest in punishing violations of the law. Today there is increasing concern that pretrial disclosures, even by these agencies, of information merely to satisfy public curiosity, is hindering our administration of justice. If exposure by these agencies poses a problem, how much less desirable is exposure by an agency which is performing no essential governmental function.

While the suspect would be entitled to a jury trial on the question of his guilt, the Commission’s findings would make an impartial trial almost impossible. Like a well-publicized pretrial confession, the Commission’s finding of guilt or innocence would make selection of a jury virtually impossible.⁸⁷ Furthermore, a good deal of the information available to the Warren Commission could never be received by a trial court, with the likely result that their conclusions would differ. If this happened, which group would the public believe? Even assuming the Commission delayed making public its findings (as it actually did, out of deference to Ruby)⁸⁸ a subsequent release, however long delayed, could still challenge the result of the jury trial and undermine public confidence in either our jury system or the Commission—or both. Clearly, in this situation, there would be a dangerous conflict between the interest of the public in obtaining information and the rights of the accused.

Moreover, the very excellence of this kind of agency poses a threat to our traditional adversary system of justice. While nominally an executive agency, in the mind of the public the Commission was a kind of court, designed to determine, once and for all, who killed President Kennedy. True, its structure and procedures were not those of a court, but the very stature of the Commission, its elite staff, its tremendous investigative facilities, and the unanimity of its findings, all combined to give it an authority second to none. It seems hard to avoid the conclusion that such an agency was more apt to arrive at the truth than any other possible investigative agency. Surely more apt to do so than the twelve men of a trial jury, untrained, with only technically admissible evidence available to them. More apt, too, than the grand jury which the Commission, in a sense, was designed to supplant. And what commensurate public interest is served by insisting upon an agency (the trial jury) and procedure (trial rules of evidence) that are not best suited for determining the truth? The essential values of a fair trial are not jeopardized. Unless one subscribes to the sporting theory of justice, the desirability of a trial lies in its ability to find the truth of guilt or innocence. An accused can reasonably ask for no more than the truth, and here is an agency that will more likely produce it. And if it is good for presidential assassinations, what of other spectacular crimes? Or any crimes? In short, what does our adversary system offer compared to the inquisitorial system exemplified by the Warren Commission? However one answers this question, serious consideration should be given to any step so at odds with our traditional method of dispensing justice.

Whatever potential threat to justice is posed by such a commission in the abstract is magnified immeasurably by having as its head the Chief Justice of the United States. While he unquestionably lent authority, dignity and stature to the Commission that bears his name, it need scarcely be said that he should not associate himself with any kind of investigation which might ultimately come before the courts of the land. Unhappily, it is never possible to be certain that this will not occur, however unlikely it may seem at the time. Suppose Mrs. Oswald, for instance, suspecting that the Commission was going to issue a report naming her son as the President’s assassin, sued to enjoin the publication of the report. Or, suppose that after the Commission had made its report she sued for damages, arguing that since he had not been found guilty in a court of law, and since they were not performing a legitimate governmental function, it was libel to pronounce him a murderer. It is not particularly important whether suits of this kind would succeed or not. The important thing is that the decision of the Commission with the Chief Justice at its head, would embarrass, if not imperil, the determination of such a question. Even the determination of the justiciability of such an issue would be colored by the fact that, with the Chief Justice on the Commission, justiciability would be highly undesirable. The fact that Chief Justice Warren would not sit on the case, should it come to the Supreme Court, hardly answers the problem even at that level; how much greater, then, would be the impact of his presence upon the judges of the lower courts. Moreover, the presence of the Chief Justice would aggravate the already embarrassing position of the Commission were it to turn up a new suspect or an accomplice. Had there been the least suspicion that this could occur it seems inconceivable that Chief Justice Warren would have accepted appointment to the Commission. Faced with the prospect of directing an investigation designed to decide if a living person were guilty of murder, he would have no alternative but to resign, with an attendant embarrassment, if not disruption, of the Commission’s work.

So strong are the arguments against a publicity-oriented agency of this kind investigating the guilt of live suspects, with or without the Chief Justice as chairman, that it seems almost inconceivable that the Commission would have been created had Oswald not been killed. Although Mr. Rankin indicated that the Commission did not assume that Oswald was the murderer,⁸⁹ this can probably be interpreted as indicating the open-mindedness of the Commission toward its evidence, rather than any serious doubts about Oswald’s guilt. The Commission itself appears to concede this when it notes that its creation was an “alternative means for instituting a complete investigation”⁹⁰ of the President’s murder, since “it was no longer possible to arrive at the complete story of the assassination through normal judicial procedures during a trial of the alleged assassin.”⁹¹ Thus the Commission, apparently without realizing it, was in the anomalous position of having its very existence depend upon a particular answer to those questions which it was set up to investigate—namely, that Lee Harvey Oswald, acting alone, assassinated President Kennedy. Surely the injection into our system of justice of an agency based on such a preconception poses a threat to impartial justice worthy of the most careful consideration.

It is not the intention of this writer to disparage in any way the members of the Commission, its staff, or the job that they did. Nor should any criticism be implied of the wisdom and judgment of those involved in the Commission’s creation. One does what one has to do, and in the emotion-charged period following President Kennedy’s assassination it seemed imperative to set up the most competent and respected body possible to assure a worried nation that everything was all right. It is only with the passage of time, and the benefit of hindsight, that we realize luck was riding with the Commission—luck which could not, perhaps, be counted on another time. Problems which did not, but might have, materialized raise serious questions for calm consideration before the need for another such agency appears. And until such consideration has been given, and wise judgments are reached, only clearly legitimate governmental purposes should justify placing in jeopardy any of the values of our system of justice. There is great wisdom in Chief Justice Warren’s implications in the Watkins case that government should not expose for the sake of exposure.