A HOUSE SUBCOMMITTEE has charged HEW Secretary Joseph Califano with contempt of Congress - a crime that could coat him a $1,000 fine or a year in jail, or both - for refusing to hand over "trade secrets" in HEW's confidential files. But if Mr. Califano surrenders that material, in the opinion of the Justice Department, he will be violating a provision of law that, coincidentally, could also cost him a $1,000 fine or a year in jail, or both. That Catch-22 situation does not present, as its congressional creators contend, a classic confrontation between the sacred right of Congress to obtain information and some arbitrary effort by the executive branch to suppress it. Rather, it is the worst sort of congressional caprice - a grandstand play, if you will, by the subcommittee's chairman, Rep. John E. Moss of California.
The subcommittee has a legitimate legislative interest in wanting to find out all it can about how particular drugs are manufactured, the better to judge whether brand-name and generic drugs are made differently. But Mr. Califano has at least an equal interest in upholding the law. There is, in short, an honest conflict of interest here of the sort that cries out, in our system of government, for accommodation and compromise. To force it instead to a senseless confrontation - as Mr. Moss and a thin majority of his committee have done - is both arrogant and irresponsible.
The law that Mr. Moss would have Mr. Califano ignore is a provision of the Food and Drug Act that makes it a crime for a government officer to reveal trade secrets about drugs "other than to the secretary or officers or employees of the Department [of Health, Education and Welfare], or to the courts when relevant in any judicial proceeding." Since the subcommittee is obviously seeking trade secrets, Mr. Califano's stand appears to be justified. It is hardly an "obscure" provision, as was suggested during the subcommittee's meeting, since the protection of trade secrets was a major issue when the Freedom of Information Act was under study.
Rep. Moss, however, has a different view. He contends the law doesn't override the constitutional right of Congress to acquire information, even though it appears, on its face, to do precisely that. And instead of dealing seriously with the question raised by Secretary Califano and the Department of Justice, Mr. Moss chose to denounce the attorney general and malign an assistant attorney general for saying the law means what it says.
There are other ways the subcommittee could have proceeded if it really wanted the information. It could have demanded that the drug companies produce the information. Or it could have drafted a change in the Food and Drug Act. Either route, of course, would have taken longer than a may explain everything: Mr. Moss, the prime mover behind the investigation, will be retiring in January.
There is another strange aspect to this confrontation between a Democratic Cabinet officer and a Democratically controlled committee. Mr. Califano ought to be disqualified from acting on the subcommittee's demand because, before he joined the administration, he represented not only one of the drug companies whose trade secrets are involved but the subcommittee itself in a similar litigation some years ago. Yet, when Mr. Califano tried to disqualify herself a week or so ago, the subcommittee insisted that he handle the matter personally.
The conclusion is inescapable that the contempt citation is a cheap shot at a tempting target; Mr. Califano's stock on Capitol Hill is at a low level for reasons totally unrelated to this investigation. But a charge of contempt of Congress is not something you do out of pique or a desire for publicity. The Houe Commerce Committee should repudiate the action of its subcommittee.