Why the Warren Commission?

56 “President Johnson sought to avoid parallel investigations and to concentrate factfinding in a body having the broadest national mandate.” Foreword to Report at x.

57 The House Judiciary Committee, the House Un-American Activities Committee, and the Senate Judiciary Committee, were all considering separate investigations at the time the appointment of the Warren Commission was announced. N.Y. Times, Nov. 30, 1963, p. 12, col. 3.

58 Congress apparently agreed with this conclusion, since all plans to investigate were dropped when the Warren Commission was created, and congressional leaders assured the President they would use their influence to discourage all committees from undertaking investigations. Ibid. In addition, the bill to give the Commission subpoena powers passed both houses without debate. 109 Cong. Rec. 22629, 22787 (daily ed. Dec. 9, 10, 1963).

59 According to the N.Y. Times, Chief Justice Warren at first refused to head the Commission. “Then President Johnson called him over to the White House and talked to him about patriotism, about the country’s urgent need to settle the assassination rumors, about the special trust foreign lands would place in an inquiry he headed.” N.Y. Times, Sept. 28, 1964, p. 14, col. 6.

60 Foreword to Report at xi. A one-paragraph biography of each member of the Commission and its staff is printed in the report. Report 475–81.

61 Foreword to Report at xi.

62 Exec. Order No. 11130, 28 Fed. Reg. 12789 (1963).

63 Report 472.

64 Foreword to Report at xiv.

65 Ibid. The staff, too, was characterized by “a total dedication to the determination of the truth.” Id. at xi.

66 Foreword to Report at x. It is not here suggested that the term “public interest” is synonymous with “public curiosity,” but the entire discussion by the Commission of its goals and purposes emphasizes the job of getting the truth to the public.

67 Rankin, Interviews.

68 Foreword to Report at xiv.

69 An entire chapter in the Report is devoted to an examination of Oswald’s background and possible motives. Report 375–424.

70 Report 637–68.

71 “This Commission was created … in recognition of the right of people everywhere to full and truthful knowledge concerning these events.” Report 1.

72 Perfectly legitimate is perhaps too strong, since the Commission was not expressly authorized to prosecute conspirators, if any, or to recommend legislation to Congress. Its sole function, apparently, was to inform the President and public.

73 But note that the Court in Barenblatt takes cognizance of “the primary purposes of the inquiry.” See text accompanying note 39 supra.

74 “At the opening of any deposition a member of the Commission’s staff shall read into the record a statement setting forth the nature of the Commission’s inquiry and the purpose for which the witness has been asked to testify or produce evidence.” Report 502.

75 Report 18.

76 Id. at 454.

77 Id. at 456.

78 Id. at 454.

79 See Luther v. Borden, 48 U.S. (7 How.) 1 (1849).

80 See Ex parte Lévitt, 302 U.S. 633 (1937), where the Supreme Court dismissed a suit challenging the right of Mr. Justice Black to take his seat on the Court. “[T]o entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.” 302 U.S. at 634.

81 Not only is it not inherent, but winning the right to delegate such power to administrators has been a struggle for Congress. For an excellent summary of this development see Davis, supra note 48, at 90–93. In practice, Congress confers subpoena powers very freely, although, as here, failure to comply with a subpoena must be enforced in a court.

82 See text accompanying note 3 supra.

83 The Commission never made use of its power to compel self-incriminating testimony by granting immunity. Foreword to Report at xi. See also note 85 infra. One witness, however, refused to give the name of an informant who claimed to have seen Ruby, Officer Tippit and a right-winger named Weisman in conference a week before the assassination. The witness, Mark Lane, was a New York attorney and spokesman for a group who believe Oswald was innocent. N.Y. Times, Sept. 28, 1964, p. 1, col. 7. He was Mrs. Oswald’s attorney for a time, and lectured to paying audiences on his theory of Oswald’s innocence. Although he was brought home from Europe at Commission expense on the assumption that he would reveal the informant’s name, he refused on the ground that he had “promised the individual that his name would not be revealed without his permission.” Report 297. See also N.Y. Times, Nov. 25, 1964, p. 19, cols. 1–2 and 5 Hearings Before the President’s Commission on the Assassination of President Kennedy 553–55 (1964). He was not ordered to divulge the name and did not do so.

84 “Silverstein’s compliance … was not voluntary. People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around….” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963).

85 In Mr. Rankin’s view the fact that they could be compelled brought them willingly, since any show of reluctance would merely bring down on them unnecessarily the wrath of a public which demanded that no facts be withheld. The fact that the Commission paid their expenses, whether they were subpoenaed or merely invited, made the use of the subpoena unnecessary. He could recall no instance in which a subpoena had been necessary. Rankin, Interviews.

86 Mrs. Oswald, for instance, remained convinced that her son was innocent and the Commission had brought in an erroneous “verdict” against him.

87 The Harris survey reported that 94% of the people had heard of the Warren Commission report, and although 31% remained unconvinced that Oswald had acted alone, only 13% were not convinced of Oswald’s guilt. Washington Post, Oct. 19, 1964, p. 2, cols. 1–3.

88 “The Commission concluded that the premature publication by it of testimony regarding the assassination or the subsequent killing of Oswald might interfere with Ruby’s rights to a fair and impartial trial on the charges filed against him by the State of Texas.” Foreword to Report at xiii.

89 Rankin, Interviews.

90 Foreword to Report at x.

91 Ibid.