323 Opinion of the Court. The offense of contempt of Congress, with which we are presently concerned, on the other hand, matures only when the witness is called to appear before the committee to answer questions or produce documents and wilfully fails to do so. Until that moment he has committed no crime. There is, in our jurisprudence, no doctrine of "anticipatory contempt." While the witness' testimony may show that he has elected to perjure himself or commit contempt, he does not thereby admit his guilt of some past crime about which he has been summoned for questioning but commits the criminal act then and there. In Glickstein v. United States, supra, this Court considered the problem thereby presented. It was there held that perjury committed in the course of testimony given pursuant to statute falls outside the purview of § 7 (9) of the Bankruptcy Act, 11 U. S. C. § 25 (10), which, like R. S. § 859, provides that no testimony given by the witness (at a creditors' meeting) shall be used against him in any criminal proceedings. In the Court's view, such an immunity "relates to the past and does not endow the person who testifies with a license to commit perjury." 222 U. S. at 142. The distinction is fully spelled out in a Circuit Court of Appeals opinion, Edelstein v. United States, 149 F. 636 (1906), which was cited with approval in the Glickstein case: "To hold that the statute protects a bankrupt from the use of his evidence in a prosecution for perjury while actually testifying would defeat the obvious purposes of the act. It would, in effect, say to the bankrupt: You may forego the exercise of your constitutional privilege, and consent to testify concerning the conduct of your business, and in that way promote the efficient administration of your estate and benefit your creditors, and by so doing secure Opinion of the Court. 339 U.S. the immunity provided for; but if you give false testimony, calculated to embarrass the administration of your estate and to defeat the just rights of your creditors, and thereby commit a crime specially denounced against you, you shall enjoy the same immunity therefor. Moreover, it would, in effect, secure to the bankrupt the immunity in question for violating his part of the compact, namely, to testify— that is, to testify truthfully-by virtue of which he secured a right to the immunity. We are not willing to impute to Congress any such contradictory and absurd purpose. The words 'any criminal proceeding' cannot sensibly or reasonably be construed so literally and generally as to include the criminal proceeding provided by law for false swearing in giving his testimony. They obviously have reference to such criminal proceedings as arise out of past transactions, about which the bankrupt is called to testify." 149 F. at 643-644. That statement is at least equally applicable to statements made by the witness in refusing to answer questions or produce papers. Such, in fact, was the rationale and decision of the Third Circuit Court of Appeals in just such a case. See In re Kaplan Bros., 213 F. 753 (1914). And see Cameron v. United States, supra, 719; McCarthy v. Arndstein, 266 U. S. 34, 42 (1924). The same reasons that led this Court to conclude that the clause excepting a prosecution for perjury from the reach of another immunity statute "was added only from superfluous caution and throws no light on the construction," Heike v. United States, 227 U. S. 131, 141 (1913), lead us to hold that Congress did not intend the term, "any criminal proceeding," to encompass a prosecution of the witness for wilful default under R. S. § 102. A contrary view would simply encourage the refusal of 323 JACKSON, J., concurring. witnesses to answer questions or produce papers, quite contrary to the purpose of the statute. Respondent advances several contentions which were not passed upon by the Court of Appeals. We do not decide them at this time. The judgment of the Court of Appeals is Reversed. MR. JUSTICE FRANKFURTER agrees with this opinion except as to the portion marked Third, involving the applicability of § 3486 of Title 18 U. S. C. to the facts of this case, which requires him to dissent from the judgment of reversal. MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the consideration or decision of this case. MR. JUSTICE JACKSON, concurring. With the result I am in agreement, but I do not see how this decision and that in the Christoffel case, 338 U. S. 84, can coexist. The Court is agreed that this defendant could rightly demand attendance of a quorum of the Committee and decline to testify or to produce documents so long as a quorum was not present. Therefore the real question here is whether, without making any demand, the issue may be raised for the first time long afterwards in a trial for contempt. This case is the duplicate of Christoffel in this respect: in both cases defendants have sought to raise the question of no quorum for the first time in court, when they are on trial for an offense, without having raised it in any manner before the Committee while there was time to remedy it. The Court is now saying, quite properly I think, that this question must be raised at JACKSON, J., concurring. 339 U.S. the time when it can be corrected, and proper records made, and cannot be kept as an ace up the sleeve to be produced years later at a trial. But in Christoffel, the majority took the opposite view and said, "In a criminal case affecting the rights of one not a member, the occasion of trial is an appropriate one for petitioner to raise the question." Supra, at 88. If this statement of the law is to be left standing, I do not see how we can say that what was timely for Christoffel is too late for Bryan. It is plain we are not following the Christoffel decision and so I think we should candidly overrule it. The practice of withholding all objection until time of trial is not helpful in protecting a witness' right to a valid Committee. It prevents correction of any error in that respect and profits only the witness who seeks a concealed defect to exploit. Congressional custom, whether written or not, has established that Committee members may indulge in temporary absences, unless there is objection, without disabling those remaining from continuing work as a Committee. Members may step out to interview constituents, consult members of their staffs, confer with each other, dictate a letter, or visit a washroom, without putting an end to the Committee-but always subject to call whenever the point of no quorum is raised; that is notice that someone deems their personal presence important. This is the custom Christoffel, in effect, denied to members of Congress. A member now steps out of a committee room at risk of nullifying the whole proceeding. It is ironic that this interference with legislative procedures was promulgated by exercise within the Court of the very right of absentee participation denied to Congressmen. Examination of our journal on the day Christoffel was handed down shows only eight Justices present and that four Justices dissented in that 323 JACKSON, J., concurring. case. The prevailing opinion does not expressly indicate the Justices who joined in it, but only four nondissenting Justices were present to do so. On the record this would show only an equally divided Court, which would affirm the judgment below. The only way the four who were present and for a reversal could have prevailed was by counting for it one shown by the record to be absent. There is not even any public record to show that in absentia he joined the decision, or approved the final opinion, or considered the matter after the dissent was circulated; nor is there any written rule or law which permitted him to do so. I want to make it clear that I am not criticizing any Justice or suggesting the slightest irregularity in what was done. I have no doubt that authorization to include the absent Justice was given; and I know that to vote and be counted in absentia has been sanctioned by practice and was without objection by anyone. It is the fact that it is strictly regular and customary, according to our unwritten practice, to count as present for purposes of Court action one physically absent that makes the denial of a comparable practice in Congress so anomalous. Of course, there is this difference: The absent Congressman was only necessary to a quorum; the absent Justice was necessary to a decision. No Committee action was dependent upon the Representatives presumed to be absent in the Christoffel case. All they could have done if present was to listen. In our own case, personal judgment and affirmative action of the absent member was necessary to make the Christoffel opinion a decision of the Court. The ruling of the Court today seems irreconcilable with the Court's decision in that case. True, the ink on Christoffel is hardly dry. But the principle of stare decisis, which I think should be the normal principle of |