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Full text of "Presidential campaign activities of 1972, Senate resolution 60; Watergate and related activities"

C PRESIDENTIAL CAMPAIGN AaiVITIES OF 1972 

SENATE RESOLUTION 60 

I 



-73 



APPENDIX TO THE HEARINGS 



OF THE 



SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 



OF THE 



UNITED STATES SENATE 

NINETY-THIRD CONGRESS 

FIRST AND SECOND SESSIONS ' 



LEGAL DOCUMENTS RELATING TO THE 
SELECT COMMITTEE HEARINGS 

WASHINGTON, D.C. 



PART I 




JUNE 28, 1974 



Printed for the use of the 
Select Committee on Presidential Campaign Activities 



FRANKLIN PIERCE LAW CENTER 

Concord, New Hampshire 03301 

ON DEPOSIT SEP 1 6 1974 



PRESIDENTIAL CAMPAIGN ACTIVITIES OF 1972 

SENATE RESOLUTION 60 



APPENDIX TO THE HEARINGS 



OF THE 



SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 



OF THE 



UNITED STATES SENATE 

NINETY-THIKD CONGRESS 

FIRST AND SECOND SESSIONS 



LEGAL DOCUMENTS RELATING TO THE 
SELECT COMMITTEE HEARINGS 

WASHINGTON, D.C. 

PART I 




JUNE 28, 1974 

Printed for the use of the 
Select Ck>mmittee on Presidential Campaign Activities 

U.S. GOVERNMENT PRINTING OFFICE 
34-966 O WASHINGTON : 1974 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 20402 - Price $9.15 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 

(Established by S. Res. 60, 93d Congress, 1st Session) 



SAM J. ERVIN, Jr., North Carolina, Chairman 
HOWARD H. BAKER, Jr., Tennessee, Vice Chairman 
HERMAN E. TALMADGE, Georgia EDWARD J. GURNET, Florida 

DANIEL K. INOUYE, Hawaii LOWELL P. WEICKER, Jr., Connecticut 

JOSEPH M. MONTOYA, New Mexico 

Samdel Dash, Chief Counsel and Staff Director 

Pred D. Thompson, Minority Counsel 

RuFCS Lfc Edmisten, Deputy Chief Counsel 

Arthur S. Miller, Chief Consultant 
David M. Dorsen, Assistant Chief Counsel 
Terry F. Lenzner, Assistant Chief Counsel 
James Hamilton, Assistant Chief Counsel 

Carmine S. Belling, Chief Investigator 

Wayne H. Bishop, Chief Field Investigator 

Eugene Boyce, Hearing Records Counsel 

Ronald D. Rotunda, Assistant Counsel 

Donald Burris, Assistant Counsel 

Marc Lackritz, Assistant Counsel 

James C. Moore, Assistant Counsel 

W. Dennis Su.mmers, Assistant Counsel 

^ ~ Alan S. Weitz, Assistant Counsel 

Mark J. Biros, Assistant Counsel 

Robert Muse, Assistant Counsel 

Donald G. Sanders, Deputy Minority Counsel 

Howard S. I>iebengood, Assistant Minority Counsel 

Michael J. Madigan, Assistant Minority Counsel 

Richard L. Schultz, Assistant Minority Counsel 

Robert Silverstein, Assistant Minority Counsel 

Carolyn M. Andrade, Administrative Assistant 

Carolyn E. Cohen, Office Manager 

Joan C. Cole, Secretary to the Minority 

Bruce Quan, Legal Research Assistant 

Martha Talley, Legal Research Assistant 

William Taylor, Legal Research Assistant 

(II) 



Legal Documents Relating to the 
Select Conunittee Hearings 

TABLE OF CONTENTS — PART I 



Page 



I. Committee Resolutions, Rules of Procedure and Guidelines 

Senate Resolution 60 3 

Senate Resolution 95 18 

Senate Resolution 132 20 

Senate Resolution 181 22 

Senate Resolution 194 29 

Senate Resolution 209 33 

Senate Resolution 286 35 

Senate Resolution 287 37 

Senate Resolution 288 39 

Senate Concurrent Resolution 86 42 

Senate Resolution 327 44 

Rules of Procedure of the Select Committee 4 7 

Guidelines of the Select Committee 54 

II. Opinion Letters to the Select Committee 

Submitted 

Admissibility of Hearsay Statements 

of a Co-conspirator May, 1973 59 

Preliminary Memorandum Re Contempt of 

Congress under 2 U.S.C. §192, 194 .... April, 1973 67 

The Congressional Contempt Power .... November, 1973 75 

Preliminary Memorandum Re Procedures 

for Conferring Immunity and Compelling 

Testimony and Production before Senate 

Select Committee April, 1973 103 

Congressional Immunity for Witnesses . . June, 1973 110 

Attorney-Client Privilege June, 1973 119 

Preliminary Memorandum to Select 

Committee Re Congressional Power to 

Subpoena Documents in White House 

Custody July, 1973 132 

The Hatch Act December, 1973 145 

Legislation Concerning Campaign Contri- 
butions and Financing of Federal 
Elections December, 1973 179 



(III) 



IV 

Page 

III. Presidential Subpoenas 

Subpoena Duces Tecum (for Documents and 

Other Materials) Served on President 

Richard M. Nixon on July 23, 1973 211 

Subpoena Duces Tecum (for Tape Recordings) 

Served on President Richard M. Nixon 

on July 23, 1973 216 

Subpoena Duces Teciom (for Documents 

Relating to Watergate and Certain 

Political Contributions) Served on 

President Richard M. Nixon on December 19, 1973 . . , , 219 

Subpoena Duces Tecum (for Documents 

and Tape Recordings Relating to the Dairy 

Industry) Served on President Richard M. Nixon 

on December 19, 1973 231 

Subpoena Duces Tecum (for Documents and 

Tape Recordings Relating to Certain 

Meetings and Telephone Conversations of the 

President) Served on President Richard M. 

Nixon on December 19, 1973 244 

Justifications for Presidential Subpoenas 

Served on December 19, 1973 287 

IV. Relevant Pleadings of Selected Court Actions 

Application by the Select Committee on Presidential 
Campaign Activities for an Order Conferring Immunity 
upon G. Gordon Liddy ( In the Matter of the Application 
of United States Senate Select Committee on Presidential 
Campaign Activities , Misc. No. 70-73 (D.D.C. )) 

Letter from Samuel Dash to Attorney 

General Kleindienst, Dated May 7, 1973, 

Giving Notice of the Application for 

Immunity 333 

Letter from Assistant Attorney General 
Petersen to Samuel Dash, Dated May 10, 
1973, Responding to the Letter of May 7 335 

Application for the Immunity Order, 

Filed by the Select Committee on May 11, 

1973 337 

Supporting Memorandum, Filed by the 

Select Committee on May 11, 1973 339 

Transcript of the Proceedings before 

Judge John Sirica on May 16, 1973 349 

Order of the Court, Filed on May 16, 1973, 

Conferring Immunity upon G. Gordon Liddy 364 

Motion by the Select Committee on Presidential 
Campaign Activities to Obtain Certain Docu- 
ments Lodged by John Dean with the United 
States District Court for the District of 
Columbia ( United States of America v. John Doe, 
et al. , Misc. No. 77-73 (D.D.C.)) 

Motion Filed by the Select Committee on 

May 11, 1973 366 

Supporting Memorandum, Filed by the 

Select committee on May 11, 1973 369 



V • 

Relevant Pleadings of Selected Court Actions — Continued 

Page 
Transcript of the Proceedings before 
Judge John Sirica on May 14, 1973 372 

Order of the Court, Filed on May 14, 1973, 

Releasing the Documents to the Select 

Committee 386 

Application by the Select Committee on Presidential 
Campaign Activities for an Order conferring Immunity 
Upon Jeb Magruder ( In the Matter of the Application 
of Uni ted States Senate Select Committee on Presidential 
Campaign Activities , Misc. No. 70-73 (D.D.C) ) V 

Application for the Immunity Order, Filed by the 

Select Committee on May 18, 1973 388 

Supporting Memorandum, Filed by the Select 

Committee on May 18, 1973 390 

Application by Assistant Attorney General 

Petersen, Filed on May 21, 1973, to 

Defer Issuance of the Immunity Order 398 

Order of the Court, Filed on May 30, 1973, 

Granting the Application of the Assistant 

Attorney General 400 

Supplementary Memorandum, Filed by the 

Select Committee on May 31, 1973 401 

Memorandum on Behalf of the Special 

Prosecutor, Filed on June 6, 1973 408 

Reply Memorandum, Filed by the Select 

Committee on June 7, 1973 426 

Motion by the Major Broadcasting 

Companies for Leave to File an 

Amicus Statement, Filed and Granted 

by the Court on June 8, 1973 442 

Amicus Statement of the Major 

Broadcasting Companies, Filed on 

June 8, 1973 443 

Transcript of the Proceedings 

before Judge John Sirica on 

June 8, 1973 446 

Transcript of the Proceedings 

before Judge John Sirica on 

June 12, 1973 475 

Order of the Court, Filed on June 12, 

1973, Conferring Immunity upon 

Jeb Magruder 478 

Opinion of the Court, Filed on 

June 12, 1973 479 

Application by the Select Committee on Presidential 
Campaign Activities for an Order Conferring Immunity 
upon David Young ( In the Matter of the Application 
of United States Senate Select Committee on Presidential 
Campaign Activities , Misc. No. 70-73 (D.D.C. )) **/ 



^ This litigation also related to the request for an immunity 
order for John W. Dean III. The papers that relate specifically 
to Mr. Dean are omitted to avoid duplication. 

** / This litigation also related to the request for an 

immunity order for Gordon Strachan. The papers that 

relate specifically to Mr. Strachan are omitted to avoid 
duplication. 



VI 

Relevant Pleadings of Selected Court Actions — Continued Page 

Application for the Immunity Order, 

Filed by the Select Corramittee on 

June 21, 1973 497 

Supporting Memorandum, Filed by the 

Select Committee on June 21, 1973 499 

Memorandum in Response, Filed by 

David Young on June 29, 1973 , 5O8 

Memorandum in Response, Filed by the 

Select Committee on July 3, 1973 5I6 

Response of the Special Prosecutor, 

Filed on July 4, 1973 520 

Transcript of the Proceedings before 

Judge John Sirica on July 5, 1973 522 

Order of the Court, Filed on July 5, 

1973, Conferring Immunity upon 

David Young 533 

Opinion of the Court, Filed on 

July 9, 1973 534 

Petition by the Select Committee on 
Presidential Campaign Activities for a 
Writ of Habeas Corpus Ad Testificandum 
for E. Howard Hunt ( In Re; United States 
Senate Select Committee on Presidential 
Campaign Activities, Misc. No. 70-/3 p.D.C. ) ) 

Petition for the Writ of Habeas 

Corpus Ad Testificandum, Filed 

by the Select Committee on 

July 20, 1973 538 

Order of the Court, Filed on July 30, 

1973, Granting the Petition by 

the Select Committee ' . . 540 

Senate Select Committee on Presidential Campaign 
Activities, et al. v. Richard M. Nixon 

Proceedings in the United States District Court 
for the District of Columbia (C. A. No. 
1593-73) 

Summons and Complaint for Declaratory Judg- 
ment, Mandatory Injunction and Mandamus, 
Filed by the Select Committee on August 9, 1973, 
with Attached Exhibits 541 

Motion by the Select Committee to Reduce Time 

for Answer or Response, Filed on August 9, 1973 . . 637 

Memorandum in Support of the Motion to 

Reduce Time for Answer or Response, 

Filed by the Select Committee on 

August 9, 1973 638 

Stipulation by the Parties that the 

President Answer or Respond to the 

Complaint by August 29, 1973, Dated 

August 13, 1973 643 

Letter from Samuel Dash to Judge John 

Sirica, Dated August 22, 1973^ Asking 

that the Select Committee's Case be 

Heard in Conjunction with a Similar 

Case Brought by Special Prosecutor Cox 644 

Letter from Special Prosecutor Cox 

to Judge John Sirica, Dated August 23, 

1973, Opposing the Select Committee's 

Request for Consolidation 648 



VII 

Relevant Pleadings of Selected Court Actions — Continued 

Page 

Letter from Charles Alan Wright to 

Judge John Sirica, Dated August 23, 

1973, Opposing the Select Committee's 

Request for Consolidation 652 

Answer, Filed by President Nixon 

on August 29, 1973 654 

Motion by the Select Committee for 

Summary Judgment, Filed on 

August 29, 19 73 660 

Statement by the Select Committee 

of Material Facts as to Which 

There Is No Genuine Issue, Filed 

on August 29, 1973 664 

Memorandum in Support of the Select 

Committee's Motion for Summary 

Judgment, Filed on August 29, 1973 688 

Order of the Court, Filed on 
August 30, 1973, Denying the 
Select Committee's Motion to 
Consolidate 744 

Letter from J. Fred Buzhardt to Judge 

John Sirica, Dated September 4, 1973, 

Concerning an Extension of Time within 

Which to Respond to the Select Committee's 

Motion for Summary Judgment 745 

Motion by President Nixon for an 

Extension of Time to Respond to the 

Select Committee's Motion for 

Summary Judgment, Filed on September 4, 1973 . . . 746 

Memorandum in Support of the President's 

Motion for an Extension of Time, 

Filed on September 4, 1973 750 

Motion by the Select Committee to 

Expedite the Argument on the Motion 

for Summary Judgment, Filed on 

September 5, 1973 754 

Memorandum in Support of the Motion 

to Expedite the Argument, Filed by 

the Select Committee on September 5, 1973 .... 757 

Order of the Court, Filed on September 6, 

1973, Denying the Motion to Expedite the 

Argument 762 

Order of the Court, Filed on September 6, 

1973, Granting the President's Motion 

for an Extension of Time 763 

Letter from Samuel Dash to Judge John 

Sirica, Dated September 18, 1973, 

Requesting an Early Hearing Date on 

the Select Committee's Motion for 

Summary Judgment 764 

Supplementary Memorandum in Support 

of the Select Committee's Motion for 

Summary Judgment, Filed on September 18, 1973 . . 766 

Brief of President Nixon in Opposition 

to the Select Committee's Motion for 

Summary Judgment, Filed on September 24, 1973 . . 803 



VIII 

Relevant Pleadings of Selected Court Actions — Continued 

Page 
Reply Memorandum of the Select Committee 
in Support of the Motion for Summary 
Judgment, Filed on September 28, 1973 877 

Transcript of the Proceedings before 

Judge John Sirica on October 4, 1973 906 

Order of the Court, Filed on October 17, 

1973, Dismissing the Action 979 

Opinion of the Court, Filed on 

October 17, 1973 980 

Notice of Appeal, Filed by the 

Select Committee on October 19, 1973 998 

Proceedings in the United States Court of 
Appeals for the District of Columbia Circuit 
(No. 73-2086) i 

Motion by the Select Committee for an 

Expedited Briefing and Argument 

Schedule and Suggestion for a Hearing 

En Banc, Filed on October 23, 1973 999 

Memorandum of President Nixon in 

Response to the Motion for an 

Expedited Briefing and Argument 

Schedule, Filed on October 24, 1973 1007 

Withdrawal by the Select Committee of 

the Motion to Expedite, Filed on 

October 26, 1973 1011 

Motion by the Select Committee for 

an Extension of Time to File a 

Brief, Filed on November 19, 1973 1015 

Motion by the Select Committee for 

an Expedited Briefing and Argument 

Schedule and Suggestion for a Hearing 

En Banc, Filed on December 18, 1973 1018 

Response of President Nixon to the 

Motion for an Expedited Briefing 

and Argument Schedule, Filed on 

December 26, 1973 1032 

Reply Memorandum by the Select 

Committee in Support of the 

Motion for an Expedited Briefing 

and Argument Schedule and Suggestion 

for a Hearing En Banc, Filed on 

December 27, 1973 1041 

Order of the Court, Filed on December 28, 

1973, Remanding the Case to the United 
States District Court for the District 
of Columbia for Further Proceedings in 

Light of Public Law 93-190 1046 

Proceedings on Remand in the United States 
District Court for the District of Columbia 
(C.A. No. 1593-73) 

Order of the Court, Filed on January 7, 

1974, Reassigning the Case from Judge 

John Sirica to Judge Gerhard Gesell 1047 

Memorandum of the Select Committee on 

Remand, Filed on January 7, 1974 1048 



IX 

Relevant Pleadings of Selected Court Actions — Continued 

Page 
Amendment to the Complaint, Filed by 
the Select Committee on January 7, 1974 1080 

Order Requested by the Select Committee 

for Expedited Handling of the Case^ Served 

on President Nixon on January 8, 1974 1088 

Order of the Court, Filed on January 9, 

1974, Granting the Select Committee's Request 

for Expedited Handling of the Case 1089 

Letter from the Select Committee to Judge 

Gerhard Gesell, Dated January 9, 1974, 

Supplying the Relevant Legislative 

History of Public Law 93-190 and 

Senate Resolution 194 1090 

Amended Answer, Filed by President 

Nixon on January 17, 1974 1113 

Response by President Nixon to the 

Select Committee's Memorandum on 

Remand, Filed on January 17, 1974 1117 

Reply to President Nixon's Response 

to the Select Committee's Memorandum 

on Remand, Filed by the Select Committee 

on January 21, 1974 1172 

Order of the Court, Filed on January 25, 

1974, Quashing the Supoena Duces Tecum 

for Documents Served on President Nixon 

on July 23, 1973 and Denying the Select 

Committee's Prayer for its Enforcement 1185 

Order of the Court, Filed on January 25, 1974, 
Requesting President Nixon to Submit a Parti- 
cularized Statement on Specific Portions of 
Tape Recordings, Subpoenaed by the Select 
Committee on July 23, 1973, Indicating for 
^'^Thich Portions Executive Privilege Is Asserted. . 1191 

Order of the Court, Filed on January 25, 1974, 

Requesting Special Prosecutor Jaworski to 

File a Statement Concerning the Effect of 

Compliance with the Select Committee's Subpoena 

upon Pending Criminal Cases 1196 

Memorandvun of the Special Prosecutor, 

Filed on February 6, 1974 1200 

Letter from James St. Clair to Judge Gerhard 
Gesell, Dated February 6, 1974, Enclosing President 
Nixon's Response to the Order of January 25th Re- 
questing a Particularized Statement 1208 

Observation by the Select Committee on the President's 
Response and the Memorandum of the Special Prosecutor, 
Filed on February 7, 1974 1211 

Memorandum and Order of the Court, Filed on 

February 8, 1974, Dismissing the Complaint. . . . 1218 

Notice of Appeal, Filed by the Select 

Committee on February 20, 1974 1227 



TABLE OF CONTENTS — PART II 

Relevant Pleadings of Selected Court Actions — Continued 

Page 
Proceedings in the United States Court of 
Appeals for the District of Columbia Circuit 
(No. 74-1258) 

Motion by the Select Committee to Set an 

Expedited Briefing and Hearing Schedule 

and Suggestion for a Hearing En Banc, 

Filed on February 21, 1974 1229 

Brief of the Select Committee on Appeal, 

Filed on February 25, 1974 1232 

Joint Appendix, Filed by the Select 

Committee on February 25, 1974 1277 

Reply of President Nixon to the Select 

Committee's Motion for an Expedited 

Briefing and Hearing Schedule and Suggestion 

for a Hearing En Banc, Filed on February 28, 1974. . 1452 

Supplemental Memorandum of the Select 

Committee in Support of an Expedited 

Briefing and Hearing Schedule, Filed 

on March 1, 1974 1458 

Order of the Court, Filed on March 7, 

1974, Denying the Select Committee's 

Motion for an Expedited Briefing and 

Hearing Schedule and Granting the Select 

Committee's Request for a Hearing En Banc 1462 

Motion by the Select Committee for 

Reconsideration of the Date Set for Oral 

Argument, Filed on March 11, 1974 1463 

Order of the Court, Filed on March 13, 

1974, Granting the Motion for Reconsideration 

of the Date Set for Oral Argument 1467 

Order of the Court, Filed on March 21, 

1974, Requesting Special Prosecutor 

Jaworski to Submit an Amicus Curiae 

Brief and Be Prepared to Participate 

in the Oral Argument 1468 

Amicus Curiae Brief of the Special 

Prosecutor, Filed on March 27, 1974 1469 

Amicus Curiae Brief of the United States 

Attorney General, Filed on March 27, 1974 1481 

Brief of President Nixon, Filed 

on March 27, 1974 1488 

Reply Brief of the Select Committee, 

Filed on April 1, 1974 1567 

Transcript of the Proceedings before the 

Court of Appeals on April 2, 1974 1611 

Motion by the Select Committee for Leave 
to File a Supplemental Memorandum, Filed 
on April 3, 1974 1682 

Supplemental Memorandum Submitted by the 

Select Committee on April 3, 1974 1684 



XI - 

Relevant Pleadings of Selected Court Actions — Continued 

Page 
Response by President Nixon to the 
Select Cominittee ' s Motion for Leave 
to File a Supplemental Memorandum, 
Filed on April 10, 1974 1689 

Order of the Court, Filed on April 15, 

1974, Granting the Select Committee's 

Motion for Leave to File a Supplemental 

Memorandum 1701 

Order of the Court, Filed on May 2, 1974, 

Taking Judicial Notice of the Release of 

Edited Presidential Conversations and 

Requesting a Supplemental Memorandum 

from the Select Committee on Consequent 

Need for the Subpoenaed Tape Recordings 1702 

Supplemental Memorandum of the Select 
Cominittee in Response to the Order of 
May 2nd, Filed on May 6, 1974 1704 

Memorandum of President Nixon in Response 

to the Select Committee's Memorandum of 

May 6, Filed on May 10, 1974 1722 

Letter from Samuel Dash to the Clerk 

of the United States Court of Appeals 

for the District of Columbia Circuit, 

Dated May 22, 1974, Informing the 

Court of the Extension of the Date by 

Which the Select Committee Must File Its 

Final Report 1738 

Opinion of the Court, Filed on May 23, 

1974, Affirming the Decision of the 

Court Below 1743 

Common Cause, et al. v. Finance Committee to Re-elect 
the President, et al. , C.A. No. 1780-72 (D.D.C.) 

N. B.: All records and documents of the 
Finance Committee to Re-elect the President 
were placed under seal of court by Judge 
Joseph Waddy pending the filing of a report 
by the defendants in Common Cause v. Finance 
Committee to Re-elect the President, et al . j 
In order to get access to the aiaterial, the 
Select Committee obtained a stipulation of 
all parties and a consent order from Judge 
Waddy allowing the Select Committee to use 
the material for its investigation and Report. 

Stipulation by the Parties, Filed on 

August 24, 1973 1762 

Consent Order, Filed on August 24, 1973 1765 

National Citizens' Committee for Fairness to the 
Presidency, Inc., et al. v. Senate Select Committee 
on Presidential Campaign Activities, et al., 
C.A. No. 1758-73 (D.D.C.) 

Petition of the National Citizens' Committee for 

Declaratory and Injunctive Relief, Filed on 

September 14, 1973 1768 

Motion by the National Citizens' Committee 

for a Preliminary Injunction and for an 

Early Hearing on the Merits, Filed on 

September 14, 1973 1784 

Supporting Memorandum, Filed by the 

National Citizens' Committee on September 14, 1973 . . 1787 



XII 

Relevant Pleadings of Selected Court Actions — Continued 

Page 
Subpoena Served by the National Citizen's 
Committee on the Select Committee on 
September 18, 1973 1799 

Motion by the Select Committee to Postpone 

Response to the Subpoena, Filed on September 20, 1973. . 1802 

Supporting Memorandum, Filed by the Select 

Committee on September 20, 1973 1803 

Memorandum in Opposition to the Select 

Committee's Motion to Postpone Response to 

the Subpoena, Filed by the National Citizens' 

Committee on September 21, 1973 1806 

Addendum to the Memorandum in Support of a 

Motion by the National Citizens' Committee 

for a Preliminary Injunction, Filed on 

September 21, 1973 1812 

Motion to Dismiss, Filed by the Select 

Committee on September 21, 1973 1821 

Memorandum in Opposition to the Motion of the 

National Citizens' Committee for a Preliminary 

Injunction and in Support of the Select Committee's 

Motion to Dismiss, Filed on September 21, 1973 1823 

Memorandum in Opposition to the Select Committee's 
Motion to Dismiss, Filed by the National Citizens' 
Committee on September 21, 1973 1840 

Transcript of the Proceedings before Judge 

June Green on September 21, 1973 1848 

Order of the Court, Filed on September 21, 

1973, Dismissing the Complaint 1876 

Subpoena Served by the National Citizens' 

Committee on the Select Committee on 

September 21, 1973 1877 

Notice of Appeal, Filed by the National 

Citizens' Committee on September 24, 1973 1880 

Petition by the National Citizens' 

Committee for an Injunction Pending Appeal, 

Filed on September 24, 1973 1881 

Order of the United States Court of Appeals 

for the District of Columbia Circuit, Filed 

on September 24, 1973, Denying the Petition 

of the National Citizens' Committee for an 

Injunction Pending Appeal 1886 

Supporting Memorandum, Filed by the Select 

Committee with the United States Supreme 

Court on September 24, 1973 (the Select 

Committee Relied upon Its Memorandum Submitted 

Below on September 21, 1973) (Omitted) 

Letter from the Deputy Clerk of the United 

States Supreme Court to Gilbert Davis, 

Dated September 27, 1973, Giving Notice 

that the Injunction Pending Appeal, for 

Which the National Citizens' Committee 

Had Petitioned, Had Been Denied 1887 

Letter from the Deputy Clerk of the United 

States Court of Appeals for the District of 

Columbia Circuit to Douglas Bywater, Dated 

January 31, 1974, Inquiring as to the Status 

of the Proceedings 1888 



XIII 

Relevant Pleadings of Selected Court Actions— Continued 

Page 
Order of the United States Court of Appeals for 
the District of Columbia Circuit, Filed on 
April 2, 1974, Dismissing the Appeal 1889 

Application by the Select Committee on 
Presidential Campaign Activities for an 
Order Conferring Immunity upon John Ragan 
( in the Matter of the Application of 
United States Senate Select Committee 
on Presidential Campaign Activities , 
Misc. No. 70-73 (D.D.O) 

Letter from Samuel Dash to Attorney 

General Richardson, Dated September 14, 

1973, Giving Notice of the Application for 

immunity (Omitted) 

Application for the Immunity Order, Filed 

by the Select Committee on October 1, 1973 (Omitted) 

Suoporting Memorandxim, Filed by the 

select Committee on October 1, 1973 (Omitted) 

Transcript of the Proceedings before Judge 

John Sirica on October 5, 1973 1890 

order of the Court, Filed on October 5, 

1973, Conferring Immunity upon John Ragan 1893 

Application by the Select Committee on 
Presidential Campaign Activities for an 
Order Conferring Immunity upon John 
Meier ( In the Matter of the Application of 
United "states Senate Select Committee on 
Presidential Campaign Activities , Misc. 
No. 70-73 (D.D.O) 

Application for the Immunity Order, 

Filed by the Select Committee on 

November 15, 1973 (Omitted) 

Supporting Memorandum, Filed by , • ja 

the Select Committee November 15, 1973 (Omitted) 

Application by Special Prosecutor 

Jaworski to Defer Issuance of the 

Immunity Order, Filed on November 19, 

2^973 (Omitted) 

Letter from Special Prosecutor Jaworski 

to Samuel Dash, Dated November 20, 1973, 

Giving Notice of the Application to 

Defer Issuance of the Immunity Order (Omitted) 

Order of the Court, Filed on November 20, 

1973, Granting the Application of the 

Special Prosecutor (Omitted) 

Transcript of the Proceedings before 

Judge John Sirica on December 6, 1973 1894 

Order of the Court, Filed on 
December 6, 1973, Conferring 
Immunity upon John Meier 1898 

Application by John Meier for an 

Order Conferring Immunity from 

Service of Process, Filed on 

December 6, 1973 18^9 

Order of the Court, Filed on 

December 12, 1973, Conferring 

Immunity from Service of Process 1901 

upon John Meier 



XIV 

Relevant Pleadings of Selected Court Actions—Continued 

Page 
N. B. : Although the court granted the 
Select Committee authority to confer 
immunity upon Mr. Meier, immunity was 
never conferred because the witness 
was found to be uncooperative. 

Ralph Nader, et al. v. Earl Butz. et al. . 
C.A. No. 148-72 (D.D.C.) 

Protective Order Covering Material 

Submitted under a Subpoena, Filed 

by the Court on December 21, 1973 1902 

Plaintiffs' Motion for Clarification 

of the Protective Order, Filed on 

January 30, 1974 1903 

Points and Authorities, Filed by 

Plaintiffs on January 30, 1974 1904 

Opposition to Plaintiffs' Motion 

for Clarification of the Protective 

Order, Filed by the White House 

Custodian of Records on February 12, 1974 1906 

Points and Authorities in Opposition to 

Plaintiffs' Motion for Clarification of the 

Protective Order, Filed by the White House 

Custodian of Records on February 12, 1973 1910 

Motion by the Select Committee on Presidential 

Campaign Activities for Leave to File an 

Amicus Curiae Brief, Filed on February 12, 1973 . . . 1915 

Memorandum in Support of the Select Committee's 

Motion for Leave to File an Amicus Curiae Brief, 

Filed on February 12, 1974 1916 

Amicus Curiae Brief of the Select Committee in 

Support of Plaintiffs' Motion for Clarification 

of the Protective Order, Submitted on 

February 12, 1974 1919 

Supplemental Memorandum of Amicus Curiae, 

Submitted by the Select Committee on 

February 21, 1974 1962 

Memorandum and Order of the Court, Filed on 

March 13, 1974, Granting the Motion by the 

Select Committee for Leave to File an 

Amicus Curiae Brief 1965 

Richard Danner, et al. v. The Senate Select 
Committee on Presidential Campaign Activities , 
C. A. No. 2107-73 (D.D.C.) 

Summons and Complaint (With Exhibits), Filed by 

Plaintiffs on November 27, 1973 1972 

Stipulation by the Parties, Filed on 

December 3. 1973 1987 

Notification Pursuant to the Stipulation, 

Filed by Plaintiffs 1988 

Application by Plaintiffs for a Temporary 

Restraining Order and Request for Hearing, 

Filed on December 5, 1973 1989 



XV 

Relevant Pleadings of Selected Court Actions--Continued 

Page 
Motion for Preliminary Injunction and 
Affidavit of Chester C. Davis, Filed 
by Plaintiffs on December 5, 1973 
(Accompanying Exhibits Omitted) 1993 

Transcript of the Proceedings before 

Judge Aubrey Robinson on December 5, 

1973, Denying Plaintiffs' Application 

for a Temporary Restraining Order 2009 

Plaintiffs' Alternative Motion for 
Summary Judgment, Accompanying 
Statement of Material Facts and Memorandiim 
of Law, Filed on December 7, 1973 
(Accompanying Exhibits Omitted) 2049 

Motion by the Select Committee for 

Summary Judgment, Filed on December 7, 

1973 2073 

Memorandum in Opposition to Plaintiffs' 

Motion for a Preliminary Injunction 

and in Support of the Select Committee's 

Motion for Summary Judgment, and Statement 

of Material Facts as to which There Is No 

Genuine Issue, Filed on December 7, 1973 2076 

Transcript of the Proceedings before Judge Aubrey 

Robinson on December 10, 1973 2103 

Order of the Court, Filed on December 10, 

1973, Denying Plaintiffs' Motion for a 

Preliminary Injunction 2150 

Notice of Appeal, Filed by Plaintiffs 

on December 11, 1973 2151 

Memorandum in Opposition to Plaintiffs' 

Motion for a Preliminary Injunction and 

in Support of the Select Committee's Motion 

for Summary Judgment, Filed on December 11, 

1973 (the Select Committee Relied upon Its 

Memorandum Submitted Below on December 7, 1973) . . . .(Omitted) 

Order of the United States Court of Appeals 

for the District of Columbia Circuit, Filed 

on December 11, 1973, Denying Plaintiffs' 

Motion for a Preliminairy Injunction 2152 

Request by Plaintiffs for an Admission of 

Facts, Filed on December 12, 1973 (Omitted) 

Order of the United States District Court 

for the District of Columbia, Filed on 

December 12, 1973, Dismissing the Action 2153 

V. Schedule of Immunity Applications by the Senate 

Select Committee on Presidential Campaign Activities. . . . 2154 

VI. Schedule of Petitions by the Senate Select Committee 
on Presidential Campaign Activities for Writs of 
Habeas Corpus Ad Testificandum 2156 



\ 



I. Committee Resolutions, Rules of Proce- 
dure and Guidelines 



34-966 O - 74 - pt. 1 



93d congress 
1st Session 



S. RES. 60 



m THE SENATE OE THE UNITED STATES 

Febhu.vry 5, 1973 

Mr. Krvix (for himself and Mr. Mansfikld) submitted tlie followiiifr resolu- 
tion; \\hich was ordered to be placed on tlie calendar. 

February 7,1973 
Considered, amended, and agreed to 

[Omit the part struck through and insert the part printed in italic] 



RESOLUTION 

To establish a select committee of the Senate to c<indiict an 
investigation and study of the extent, if any, to whicli 
iUegal, improper, or unethical activities were engaged in by 
any persons, acting individually or in combination with 
others, in the presidential election of 1972, or any campaign, 
canvass, or other activity related to it. 

1 Resolved, 

2 Section 1. (a) That there is hereby established a 

3 select committee of the Senate, which may be called, for 

4 convenience of expression, the Select Committee on Presi- 

5 dential Campaign Activities, to conduct an investigation and 

6 study of the extent, if any, to which illegal, improper, or 

7 unethical activities were engaged in by any persons, acting 

VII— O 



2 

1 either individually or in combination with others, in the 

2 presidential election of 1972, or in any related campaign or 

3 canvass conducted by or in behalf of any person seeking 

4 nomination or election as the candidate of any political party 

5 for the office of President of the United States in such elec- 
G tion, and to determine whether in its judgment any occur- 

7 rences which may be revealed by the investigation and stud}' 

8 indicate the necessity or desirability of the enactment of new 

9 congressional legislation to safeguard the electoral process 

10 by which the President of the United States is chosen. 

11 (b) The select committee created by this resolution shall 

12 consist of ftve seven Members of the Senate, three four of 

13 whom shall be appointed by the President of the Senate 
1'* from the majority Membei-s of the Senate upon tbe recom- 
1^ mendation of the majority leader of the Senate, and two 
1^ three of whom shall be appointed by the President of the 
1^ Senate from the minority Members of the Senate upon the 
1^ recommendation of the minority leader of the Senate. For 
^^ the purposes of paragTaph 6 of rule XXV of the Standing 
^^ Rules of the Senate, service of a Senator as a member, chair- 
^^ man, or vice chairman of the select committee shall not be 

taken into account. 
■^'^ (c) The select committee shall select a chairman and 

vice chairman from among its members, and adopt rules of 
procedure to govern its proceedings. The vice chairman shall 
preside over meetings of the select committee during the 



3 

1 absence of the cbairmaii, and discharge such other responsi- 

2 bihties as may be assigned to him l)y the select committee or 

3 the chairman. Vacancies in the membershi]) of the select com- 

4 mittee shall not aflfect the authority of the remaining mem- 

5 hers to execute the functions of the select committee and 

6 sliall be filled in the snnic mnnner as original appointments 

7 to it are made. 

8 (d) A majority of the members of the select conmiittec 

9 shall constitute a quorum for the transaction of business, but 

10 the select committee may fix a lesser number as a quorum 

11 for the purpose of taking testimony or depositions. 

12 Sec. 2. That the select connnittee is authorized and 
Wl directed to do everything necessary or appr()i)riate to make 
34 the investigation and study sjiecificd in section 1 (a). With- 
15 out abridging or limiting in any way the iuithority conferred 
IG upon the select connnittee by the preceding sentence, the 

17 Senate further expressly authorizes and directs the select 

18 committee to make a complete investigation and study of the 

19 activities of any and all ])eisons or groups of ])ersons or orga- 

20 nlzations of any kind wbiih have any tendency to reveal the 

21 full facts in respect to the following matters or (piestions: 

22 ( 1 ) The breaking, entering, and bugging of the 

23 headcpiarters or offices of the Democratic National Com- 

24 mittee in the Watergate Building in Washington, District 

25 of Columbia; 



6 



4 

1 (2) The monitoring hy bugging, eavesdropping, 

2 wiretapping, or other surreptitious means of conversa- 

3 tions or communications occurring in whole or in part in 

4 the headquarters or offices of the Democratic National 

5 Committee in the Watergate Building in Washington, 

6 District of Columbia ; 

7 (3) Whether or not any printed or typed or written 

8 document or paper or other material was surreptitiously 

9 removed from the headquarters or offices of the Demo- 

10 cratic National Committee in the Watergate Building in 

11 Washington, District of Columbia, and thereafter copied 

12 or reproduced by photography or any other means for 

13 the information of any person or political committee or 

14 organization; 

15 (4) The preparing, transmitting, or receiving by 

16 any person for himself or any political committee or 

17 any organization of any report or information concern- 
Ig ing the activities mentioned in subdivision (1), (2), 

19 or (3) of this section, and the information contained in 

20 any such report ; 

21 (5) Whether any persons, acting individually or 

22 in combination with others, planned the activities men- 

23 tioned in subdivision (1), (2), (3), or (4) of this 

24 section, or emploj'ed an}^ of the participants in such 

25 activities to participate in them, or made any payments 



5 

1 or promises of payments of money or other things of 

2 value to the participants in such activities or their fam- 

3 ilies for their activities, or for conceaUng the truth in 

4 respect to them or any of the persons having any con- 

5 nection with them or their activities, and, if so, the 

6 source of the moneys used in such payments, and the 
^ identities and motives of the persons planning such ac- 

8 tivities or employing the participants in them ; 

9 (6) Whether any persons participating in any of 

10 the activities mentioned in subdivision (1), (2), (3), 

11 (4) , or (5) of this section have been induced by brib- 

12 ery, coercion, threats, or any other means whatsoever 

13 to plead guilty to the charges preferred against them in 
1^^ the District Court (»f the District of Columbia or to 
15 conceal or fail to reveal any knowledge of any of the 
1^ activities mentioned in subdivision (1), (2), (o) , 
17 (4)^ or (5) of this section, and, if so, the identities 
1« of the persons inducing them to do such things, and the 

19 identities of any other persons or any committees or 

20 organizations for whom they acted ; 

21 (7) Any etTorts to disrupt, hinder, impede, or sal)o- 

22 tao-e in any way anv campaign, canvass, or activity con- 

23 ducted by or In behalf of any person seeking nomination 

24 or election as the candidate of any political party for the 
2'^ office of I'rcsideut of the United States in U)72 by in- 



8 



6 

1 filtrating any political connnittee or organization or liead- 

2 quarters or offices or home or whereabouts of the person 

3 seeking such nomination or election or of any person 

4 aiding him in so doing, or by bugging or eavesdropping 

5 or wiretapping the conversations, communications, 

6 plans, headquarters, offices, home, or whereabouts of the 

7 person seeking such nomination or election or of any 

8 other i)erson assisting liiim In so doing, or l»y exercising 

9 surveillance over the person seeking such nomination or 

10 election or of any person assisting him in so doing, or by 

11 reporting to any other person or to any political com- 

12 mlttee or organization any Information obtained by such 

13 infiltration, eavesdropping, bugging, wiretapping, or 
1 1 ^ surveillance ; 

15 (8) AVhether any person, acting individually or In 

16 ^ combination with others, or political committee or orga- 

17 nization induced any of the activities mentioned in sub- 

18 division (7) of this section or paid any of the partici- 

19 pants in any such activities for their services, and, if so, 

20 ; the identities of such persons, or committee, or organiza- 

21 tion, and the source of the funds used by them to procure 

22 or finance such activities ; 

23 (9) Any fabrication, dissemination, or publication 

24 of any false charges or other false information havirig 

25 the purpose of discrediting any person seeking nomina- 



1 



7 

' tioii or election as the candidate of any political party 

2 to the office of President of the United States in 1972; 

3 (10) The planning of any of the activities men- 

4 tioned in suhdivision (7), (8), or (9) of this section, 

5 the employing of the participants in such activities, 

6 and the source of any moneys or things of value which 

7 may have been given or promised to the participants m 

8 such activities for their services, and the identities of 

9 any persons or committees or organizations which may 

10 have been involved in any way in the planning, pro- 

11 curing, and financing of such activities. 

12 (11) Any transactions or circumstances relating to 

13 the source, the control, the transmission, the transfer, 

14 the deposit, the storage, the conceahnent, the expendi- 

15 tui-e, or use in the United States or in any other coun- 

16 try, of any moneys or other things of value collected or 

17 received for actual or pretended use in the presidential 

18 ' election of 1972 or in any related campaign or canvass 

19 or activities preceding or accompanying such election 

20 by any person, group of persons, committee, or orga- 

21 nization of any kind acting or professing to act in behalf 

22 of any national political party or in support of or in 

23 opposition to any person seekmg nomination or election 

24 to the office of President of the United States in 1972 ; 



10 



8 

1 (12) Compliance or noncompliance with any act 

2 of Congress requiring the reporting of the receipt or dis- 

3 bursement or use of any moneys or other things of value 

4 mentioned in subdivision (11) of this section; 

5 (13) Whether any of the moneys or things of value 

6 mentioned in subdivision (11) of this section were 

7 placed in any secl'et fund or place of storage for use in 

8 financing any activity which was sought to be concealed 

9 from the public, and, if so, what disbursement or expend- 

10 iture was made of such secret fund, and the identities 

11 of any person or group of persons or committee or or- 

12 ganization having any control over such secret fund or 

13 the disbursement or expenditure of the same; 

1-4 (14) Whether any books, checks, canceled checks, 

15 • communications, correspondence, documents, papers, 

16 physical evidence, records, recordings, tapes, or mate- 

17 rials relating to any of the matters or questions the select 

18 committee is authorized and directed to investigate and 

19 study have been concealed, suppressed, or destroyed by 

20 any persons acting individually or in combination with 

21 others, and, if so, the identities and motives of any such 

22 persons or groups of persons; 

23 (15) Any other activities, circumstances, materials, 

24 or transactions having a tendency to prove or disprove 

25 that persons acting either individually or in combination 



11 



9 

.1 with others, engaged in any illegal, improper, or un- 

2 ethical activities in connection with the presidential 

3 election of 1972 or any campaign, canvass, or activity 

4 related to such election; 

5 (16) Whether any of the existing laws of the 

6 United States are inadecpiate, either in their provisions 

7 or manner of enforcement to safeguard the integrity or 

8 purity of the process by which Presidents are chosen. 

9 Sec. 3. (a) To enable the select committee to make 

10 the investigation and study authorized and directed by this 

11 resolution, the Senate hereby empowers the select committee 

12 as an agency of the Senate ( 1 ) to employ and fix the com- 

13 pensation of such clerical, investigatory, legal, technical, and 

14 other assistants as it deems necessary or appropriate; (2) to 

15 sit and act at any time or place during sessions, recesses, and 

16 adjournment periods of the Senate; (3) to hold hearings for 

17 taking testimony on oath or to receive documentary or ph3'si- 

18 cal evidence relating to the matters and questions it is author- 

19 ized to investigate or study; (4) to re(]uire by subpcna or 

20 otherwise the attendance as witnesses of any persons who 

21 the select committee believes have knowledge or information 

22 concerning any of the matters or <|Ucstions it is authorized to 

23 investigate and study; (5) to re(juire by subpena or order 

24 any department, agency, officer, or employee of the exccu- 

25 five branch of the United States Government, or any private 



12 



10 

1 person, firm, or corporation, or any officer or fonner officer 

2 or employee of any i)olitical ct)nnnittee or organization to 
•^ produce for its consideration or for use as evidence in its 

4 investigation and study any books, checks, canceled checks, 

5 correspondence, connnunications, document, papers, physical 

6 evidence, records, recordings, tapes, or materials relating to 

7 any of the matters or questions it is authorized to investigate 

8 and study which they or any of them may have in their 

9 custody or under their control; (0) to make to the Senate 

10 any recommendations it deems appropriate in respect to the 

11 willful failure or refusal of any person to appear before it in 

12 obedience to a subpena or order, or in respect to the willful 
1^ failure or refusal of any person to answer questions or give 

14 testimony in his character as a witness during his a])pearance 

15 Ijcfore it, or in respect to the willful failure or refusal of any 

16 officer or employee of the executive branch of the United 

17 States Goveniment or any person, firm, or corporation, or any 

18 officer or former officer or employee of any political connnittee 

19 or organization, to produce before the connnittee aiiy books, 

20 checks, canceled checks, correspondence, connnunications. 

21 document, financial records, pai)ers, physical evidence, rec- 

22 ords, recordings, tapes, or materials in obedience to any sub- 

23 pena or order ; ( 7 ) to take depositions and other testimony on 

24 oath anywhere within the United States or in any other 

25 country; (8) to procure the temporary or intermittent serv- 



13 



11 

1 ices of individual consultants, or organizations thereof, in the 

2 same manner and under the same conditions as a standing 

3 committee of the Senate may procure such services under 

4 section 202 (i) of the Legislative Reorganization Act of 

5 1946; (9) to use on a reimbursable basis, with the prior 

6 consent of the Government department or agency concerned 

7 and the Committee on Rules and Administration, the serv- 

8 ices of personnel of any such department or agency; (10) to 

9 use on a reimbursable basis or otherwise with the prior con- 

10 sent of the chaimian of any other of the Senate committees 

11 or the chairman of any subcommittee of any committee of 

12 the Senate the facilities or services of any members of the 
i;-} staffs of such other Senate committees or any subcommittees 

14 of such other Senate committees whenever the select com- 

15 mittee or its chairman deems that such action is necessary or 

16 appropriate to enable the select conmiittee to make the in- 

17 vestigation and study authorized and directed by this r&solu- 

18 tion; (11) to have access through the agency of any mem- 

19 bers of the select committee ef ft«y ol ite iftvcc.tigiitory w 

20 legftl ftHt4ita«4s de s ignated by it of itt* e hnirnian w \he mftk- 

21 i«g mi««i4ty member , chief majority counsel, minority coiin- 

22 set, or any of its investigatory assistants jointly designated by 

23 the chairman and the ranking minority rnember to any data, 

24 evidence, infonnation, report, analysis, or document or papers 

25 relating to any of the matters or questions which it is author- 



14 



12 

1 ized and directed to investigate and study in the custody or 

2 under the control of any department, agency, officer, or eni- 

3 ployee of the executive branch of the United States (Jovern- 

4 ment having the power under the laws of the United States 

5 to investigate any alleged criminal activities or to prosecute 

6 persons charged with crimes against the United States which 

7 will aid the select committee to prepare for or conduct the 

8 investigation and study authorized and directed by this reso- 

9 lution; and (12) to expend to the extent it determines nec- 

10 essary or appropriate any moneys made available to it by the 

11 Senate to perform the duties and exercise the powers con- 

12 f erred upon it by this resolution and to make the investigation 

13 and study it is authorized by this resolution to make. 

14 (b) Subpeiias may be issued by the select committee 

15 acting through the chairman or any other member desig- 

16 nated by him, and may be served by any person designated 

17 by such chairman or other meml)er anywhere within the 

18 borders of the United States. The chairman of the select 

19 committee, or any other member thereof, is hereby author- 

20 ized to administer oaths to any witnesses appearing before 

21 the committee. 

22 (c) In preparing for or conducting the investigation and 

23 study authorizc^d and directed by this resolution, the select 

24 committee shall be empowered to exercise the powers con- 

25 feiTcd upon committees of the Senate by section GU02 of title 



15 



13 

1 18 of the United States Code or any other Act of Congress 

2 regulating the granting of immunity to witnesses. 

3 Sec. 4. The select committee shall have authority to 

4 recommend the enactment of any new congTessional legis- 

5 lation which its investigation considers it is necessary or 

6 desiiable to safeguard the electoral process by which the 

7 President of the United States is chosen. 

8 Sec. 5. The' select committee shall make a final report of 

9 the results of the investigation and study conducted by it 

10 pursuant to this resolution, together with its findings and 

11 its reoonmiendations as to new congressional legislation it 

12 deems necessary or desirable, to the Senate at the earliest 

13 practicable date, but no later than February 28, 1974. The 

14 select committee may also submit to the Senate such interim 

15 reports as it considers appropriate. After submission of its 

16 final report, the select committee shall have three calendar 

17 months to close its affairs, and on the expiration of such 

18 three calendar months shall cease to exist. 

19 Sec. 6. The expenses of the select committee through 

20 February 28, 1974, under this resolution shall not exceed 

21 $500,000, of which amount not to exceed $25,000 shall be 

22 available for the procurement of the services of individual 

23 consultants or organizations thereof. Such expenses shall he 

24 paid from the contingent fund of the Senate upon vouchers 

25 approved by the chairman of the select committee. 



16 



14 

1 The minority members of the select committee shall have one- 

2 third of the professional staff of the select committee (includ- 
^ im/ a minority counsel) and such part of the clerical staff 
4 as may be adequate. 



17 



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93d congress 
1st Session 



S. RES. 95 



IN THE SENATE OF THE UNITED STATES 

April 6,1973 

iSIr. EitviN siihniittod the followinfr resolution: wliicli was considered and 

agreed to 



RESOLUTION 

Ti) amend S. Res. 60, of Ninety-third Congress, first session. 

1 Itesolved, That S. Res. 60, Ninety-third Congress, be 

2 amended as follows: in section 3 (a) — 

3 1. Renumber subsection (12) as subsection (13). 

4 2. Insert the following between the ";" at the end 

5 of subsection (11) and renumbered subsection (13) : 

6 "(12) to procure either through assignment by the 

7 Rules Committee or by renting such offices and other 

8 space as may be necessary to enable it and its staff to 

9 make and conduct the investigation and study authorized 

10 and directed by this resolution;", 
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93d congress 

1st Session 



S. RES. 132 



IN THE SENATE OF THE UNITED STATES 

June 25, 1973 
Mr. Ervin (for himself and Mr. Bakek) submitted the following resolution; 



which was considered and agreed to 



RESOLUTION 

To increase the sums allotted to the Senate Select Committee on 

Presidential Campaign Activities for the expenses of conduct- 

\ ing the investigation and study authorized and directed by 

Senate Resolution 60 which was adopted on February 7, 

1973. 

. 1 Resolved, 

2 Section 1. That the first sentence of section 6 of Senate 

3 Resolution 60, which was adopted on February 7, 1973, is 

4 hereby changed to read as follows: "The expenses of the 

5 select committee through February 28, 1974, under this res- 

6 olution shall not exceed $1,000,000, of which amount not 

7 to exceed $40,000 shall be available for the procurement 

8 of the services of individual consultants or organizations 

9 thereof." 

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93d congress 
IfiT Session 



S. RES. 181 



IN THE SENATE OF THE IGNITED STATES 

October 10.1978 

Mr. Ervix (for himself and Mr. I^aker) submitted the following resolution 
which was considered and agreed to 



RESOLUTION 

Authorizing the chairman of the Senate Select Committee on 
Presidential Campaign Activities to testify and produce 
committee records before the United States District Court 
for the Southern District of New York pursuant to sub- 
poenas issued in a criminal case pending in such court. 

Whereas the Senate finds: 

1. That a criminal case entitled United States of Amer- 
ica vs. John N. Mitchell, Maurice Stans, and others, which 
is numbered 73 Cr. 439 (LPG) and which involves a 
campaign contribution for .$2oO,()0<) allegedly made by 
Robert Vesco, is pending in the United States District Court 
for the Southern District of New York: 

2. That Senator Sam J. Ervin, Jr., (who is hereafter 
called Senator Er\^m) , Chairman of the Senate Select Coni- 

V 



23 



mittee on Presidential Campaign Activities (which is here- 
after called the Select Committee) , has been served with 
three subpoenas issued by a deput}^ clerk of said District 
Court upon the application of John N. Mitchell and Maurice 
Stans commanding him to appear before said District Court 
at Foley Square, room 906, in the city of New York on 
October 23, 1973, at 10 o'clock a.m. to testify in the afore- 
said criminal case and to bring with him various things 
allegedly in the possession of the Select Connnittee, which 

are described in the several subpoenas ; 

3. That the things mentioned in the first subpoena are 

described in it as follows: "All records, tape recordings, 
notes, memoranda of conversations, interviews or testimony 
in executive session of the Committee conducted by Com- 
mittee members, counsel, or staff of John W. Dean, III, 
which relate in whole or in part, directly or indirectly to the 
following: (a) The $250,000 contribution from Kobert 
Vesco; (b) That portion of the SEC investigation bearing 
on the $250,000 contribution, and (c) Dealings with the 
SEC, Department of Justice, United States Attorney— 
Southern District of New York." ; 

4. That the things mentioned in the second subpoena are 
described in it as follows: "All records, tape recordings, 
notes, memoranda of conversations, intei'views or testimony 
in executive session of the Committee conducted by Commit- 
tee members, counsel, or staff of Hugh Sloan which relate 
in whole or in part, directly or indirectly to the following: 
(a) The $250,000 contribution from Robert Vesco; (b) 

iThat portion of the SEC investigation bearing on the 
$250,000 contribution; and (c) Dealings with the SEC, 
Department of Justice, United States Attorney — Southern 
District of New York."; 



24 



5. That the thmgs mentioned in the third subpoena are 
described in it as follows: "All reports, files, records, notes, 
memoranda, and other tang^ible evidence of contributions, 
donations or gifts in excess of $1,000 made to all candidates 
in the 1972 Presidential Campaign of either the Republican 
or the Democratic Party, including but not limited to pri- 
maries, which specify or relate to the following: (a) The 
names and addresses of the contributors and recipients; (b) 
The dates (»f all such contributions; and (c) The manner of 
payment of such contributions, whether it be by a check, 
cash, security or some other form of payment."; 

6. That Senator Ervin believes it is the duty of all per- 
sons to cooperate with the courts in the administration of 
criminal justice, and for this reason asks the Senate for 
authority to appear and testify in person on the trial of said 
criminal case if the defendants, John N. Mitchell and Maurice 
Stans, so desire, despite the fact that he is not aware of any 
personal knowledge which would make him a competent 
witness on the trial ; 

7. That the Select Committee did not investigate the 
contribution of $250,000 allegedly made by Eobert Vesco 
or collect any information relating to it because it understood 
that the defendants, John N. Mitchell and Maurice Stans. 
were indicted in the pending criminal case on some charge 
arising out of such contribution, and l)ecause it .refrains from 
investigating matters covered by pending indictments; 

8. That for this reason, the Select Committee does lu { 
have in its custody, control or possession any of the things 
described in the first and second subpoenas ; 

9. That the Select Committee is virtually without any 
original reports, records, or memoranda of any kind relatin ;• 
to campaign contributions but does have in its possession 



25 



enormous quantities of following: (a) Copies made hy its 
investigators from original reports, records, and memoranda 
relating to campaigii eonti-il.utions now in the possession of 
others; (b) Notes of interviews of numerous persons con- 
ducted bv committee investigators; and (c) Notes made by 
eonnnittee investigators for the purpose of refreshing their 
recollection in respect to what their oral investigations 

revealed ; 

10. That since the third suljpoena makes no distincticm 
between the originals and copies of reports, records, and 
n.emoranda, the Select Committee believes that it may have 
hi its possession copies of reports, records, and memoranda 
called for by the third subpoena; but the Select Committee 
is unable to determine without further enlightemnent whether 
any of these copies of reports, records, or memoranda are 
relevant to any of the issues joined in the aforesaid crimmal 

case ' 

11. That all members ,.f the Seleot Comimttee helieve 

that it is their duty to cooperate with the courts in their 

administration of criminal justice, and for this reason they are 

desirous of having the Select Committee and its Chanman 

make available to the defendants, John N. Mitchell and 

Maurice Stans, any of the co,ues of reports, records, and 

„,emoranda in the possession of the Select Committee which 

nve relevant to the issues involved in the aforesaid cnminal 

'l2. That the Senate believes that the most appropriate 
method hy which such relevancy can be ascertained is by 
consultation between the Select Committee and counsel for 
the defendants, John N. Mitchell and Maurice Stans, or 
by prehminary orders entered by the said District Court 
upon appropriate motions made by the Seh^t Committee; 



26 



5 

13. That all of the menil)ers of the St'lee^t Committee are 
desirous that the Senate adopt this resolution: Now, there- 
fore, be it 

1 Resolved, That the Senate hereby authorizes Senator 

2 Ervin to appear and testify in person before the United 

3 States District Court for the Southern District of New 

4 York in the aforesaid criminal case in the event the defend- 

5 ants, John N. Mitchell and Maurice Stans, desire him to 

6 do so. 

7 Sec. 2. That the Senate hereby authorizes Senator 

8 Ervin to make return to the first and second subpoenas stat- 

9 ing that the Select Committee does not have in its possession 

10 any of the things described in them. 

11 Sec. 3. That the Senate hereby authorizes Senator 

12 Ervin, as Chairman of the Select Committee to produce 

13 before the United States District Court for the Southern 
1^ District of New York on the trial of the aforesaid criminal 
^^ case the originals or copies of any reports, records, or memo- 
^'^ randa mentioned in the third subpoena which may be rele- 
^^ vant to the issues involved in the aforesaid criminal case; 
^° Sec. 4. That the Senate authorizes the Select Commit- 
^^ tee to ascertain by consultation with counsel for the defend- 
^^ ants, John N. Mitchell and Maurice Stans, or by motions in 
21 the United States District Court for the Southern District 



27 



6 

1 of New York the relevancy, if any, to the issues involved in 

2 the aforesaid criminal case of any of the things in the pos- 

3 session of the Select Committee which are described in the 
^ third subpoena. 



28 



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93d congress 

IsT Session 



S. RES, 194 



IN THE SENATE OF THE UNITED STATES 

No\-EMBER 2, 1973 

Mr. Ervin (for himsfilf, Mr. Baker, Mr. Gfrnet, Mr. Tnoute, Mr. Moxtota, 
Mr. Talmadge, and Mr. Weicker) submitted the following resolution; 
which was ordered to be placed on the calendar 

No\t:mber 7, 1973 
Considered and agreed to 



RESOLUTION 

Relating to S. Ees. 60. 

1 Resolved, That— 

2 Section 1. By S. Res. 60, Ninety-third Congress, first 

3 session (1973), section 3 (a) (5), the Select Committee on 

4 Presidential Campaign Activities was and is empowered to 

5 issue subpenas for documents, tapes, and other material to 

6 any officer of the executive branch of the United States Gov- 

7 emment. In view of the fact that the President of the United 

8 States is, as recognized by S. Res. 60, an officer of the 

9 United States, and was a candidate for the office of President 

10 in 1972 and is therefore a person whose activities the select 

11 committee is authorized by S. Res. 60 to investigate, it is 

V 



30 

2 

1 the sense of the Senate that the select committee's issuance 

2 on July 23, 1973, of two subpenas duces tecum to the Pres- 

3 ident for the production of tapes and other materials was 

4 and is fully authorized by S. Res. 60. Moreover, the Senate 

5 hereby approves and ratifies the committee's issuance of 

6 these subpenas. 

7 Sec. 2. On August 9, 1973, the select committee and its 

8 members instituted suit against the President of the United 

9 States in the United States District Court for the District of 

10 Columbia to achieve compliance with the two subpenas ref- 

11 erenced in section 1 above, and since that time, in both the 

12 district court and the United States Court of Appeals for the 

13 District of Columbia Circuit, have actively pursued this litiga- 

14 tion. It is the sense of the Senate that the initiation and pur- 

15 suit of this litigation by the select committee and its members 

16 was and is fully authorized by applicable custom and law, 

17 including the provisions of S. Res. 262, Seventieth Congress, 

18 first session (1928). In view of the entirely discretionary 

19 provisions of section -3 (a) (6) of S. Res. 60, it is further 

20 the sense of the Senate that the initiation of this lawsuit did 

21 not require the prior approval of the Senate. Moreover, the 

22 Senate hereby approves and ratifies the actions of the select 

23 committee in instituting and pursuing the aforesaid litigation. 

24 Sec. 3. The select committee and its members, by issuing 

25 subpenas to the President and instituting and pursuing litiga- 



31 



3 

1 tion to achieve compliance with those subpenas, were and 

2 are acting to determine the extent of possible illegal, im- 

3 proper, or unethical conduct in connection with the Pres- 

4 idential campaign and election of 1972 by officers or 

5 employees of the executive branch of the United States Gov- 

6 ernment or other persons. It is the sense of the Senate that, 

7 in so doing, the select committee and its members were and 

8 are engaged in the furtherance of valid legislative purposes, 

9 to wit, a determination of the need for and scope of corrective 

10 legislation to safeguard the processes by which the President 

11 of the United States is elected and, in that connection, the 

12 informing of the public of the extent of illegal, improper, or 

13 unethical activities that occurred in connection with the 

14 Presidential campaign and election of 1972 and the involve- 

15 ment of officers or employees of the executive branch or 

16 others therein. It is further the sense of the Senate that the 

17 materials sought by the committee's subpenas ai"e of vital 

18 importance in determining the extent of such involvement 

19 and in determining the need for and scope of corrective 

20 legislation. 



32 







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93d congress 

1st Session 



S. RES. 209 



IN THE SENATE OF THE UNITED STATES 

December 1,1973 

Mr. Ervin (for liimself and Mr. Baker) submitted the following resolution; 
which was ordered to be placed on the calendar 

December 4, 1973 
Considered and agreed to 



RESOLUTION 

To increase the sums allotted to the Senate Select Committee 
on Presidential Campai^ Activities for the expenses of 
conducting the investigation and study authorized and di- 
rected by S. Res. 60 which was adopted on February 7, 
1973. 

1 Resolved, That the first sentence of section 6 of S. Res. 

2 60, which was adopted on Febmary 7, 1973, is hereby 

3 changed to read as follows: "The expenses of the select 

4 committee through February 28, 1974, under this resolu- 

5 tion shall not exceed $1,500,000, of which amount not to 

6 exceed $50,000 shall be available for the procurement of the 

7 services of individual consultants or organizations thereof.", 

V 



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93r) CONGRESS 
2d Session 



S. RES. 286 

[Report No. 93-716] 



IN THE SENATE OF THE UNITED STATES 

February 19,1974 

JNIr. Ervin (for liiiusolf and Mr. Baker) suhniittcd the following resolution; 
which was referred to the Committee on Rules and Administration 

February 28,1974 
Reported by Mr. Cannon, without amendment 

March 1,1974 
Considered and agreed to 



RESOLUTION 

'1 '() increase the sums allotted to the Senate Select Committee on 
Presidential Campaign Activities. 

1 Rcsoh-cd, That the first sentence of section G of S. Res. 

2 60, which was adopted on February 1, 1973, is hereby 

3 changed to read as follows: "The expenses of the select 

4 conniiiltee through May 28, 1974, under this resolution 

5 shall not exceed $1,800,000, of which amount not to 

6 exceed $70,000 shall be available for the procurement of the 

7 services of individual consultants or organizations thereof." 

V 



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93n CONGRESS 
2» Session 



S. RES. 287 



IN THE SENATE OF THE UNITED STATES 

Febiu .\i;y 15). 1074 

.Mr. Kinix (for liiiii.solf and .Mr. Ijakkk) siil)niittpd the following rt-solntion: 
which was con.iidi'icd and ajjrt'ed to 



RESOLUTION 

To extend until .Aray 28, U)74. the time of the Senate Seleet 
Committee on Presidential ('am}»aig'n Aetivities, which was 
created by S. Ees. 60, for making its final report and recom- 
mendations to the Senate. 

1 Besoh'ed, That the first sentence of section 5 of S. Ees. 

2 60 be amended to read as follows: "The select committee 

3 :^hall make a final report of the residts of the investigation 

4 and study conducted by it pursuant to this resolution, to- 

5 gether with its findings and recommendations as to new 

6 congressional legislation it deems necessary or desirable, to 

7 the Senate at the earliest practicable date, but no later than 

8 May 28, 1974." 

V 



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93d congress 
2d Session 



S. RES. 288 



IX THE SENATE OF THE UNITED STATES 

February 21 (legislative daj-, February 19), 1974 

Mr. Ervix submitted the followino; i-esoliition; whidi was considered and 

agreed to; preamble agreed to 



RESOLUTION 

To authorize the dissemination of certain information to the 
Internal Revenue Service by the Senate Select Connnittee 
on Presidential Campaign Activities; and the inspection 
by the Select Committee on Presidential Campaign Activi- 
ties of certain income tax returns, applications for tax ex- 
emption, and related documents held by the Internal Rev- 
enue Service. 

Whereas the Internal Revenue Service, in furtherance of certain 
on-going investigations, has requested information from the 
Senate Select Committee on Presidential Campaign Activi- 
ties ; and 

Whereas, it has come to the attention of the Senate Select 
Committee on Presidential Campaign Activities that the 
Internal Revenue Service has, in the course of the afore- 
mentioned on-going investigations discovered information 

V 



40 



2 

which rehites directly to the Senate investigation being con- 
ducted by the Senate Select Committee on Presidential 
Campaig-n Activities pursuant to Senate Kesolution 60 (Sod 
Congress, 1st session) . Xow, therefore, be it 

1 Ilesoh-ed, That the Senate authorizes the Select Com- 

2 mittee on Presidential Campaign Activities to make avail- 

3 able to the Internal Eevenue Service such information re- 

4 (piested by that agency ; and be it further 

5 Ihsolved, That in accordance with the })rovisions of 
(J sections 6103 (d) and 6104(a) (2) of the Internal Kev- 

7 enue Code of 1954, the Senate authorizes the Select Coni- 

8 mittee on Presidential Campaign Activities to investigate, 

9 receive and inspect any data, documents or other informa- 

10 tion held by the Internal Eevenue Service which relates 

11 directly to that investigation presently being conducted by 

12 the Internal Revenue Service and by the Senate Select Com- 

13 mittee on Presidential Campaign Activities as authorized 
1-^ by Senate Resolution 60 (9od Congress, 1st session). 



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93d congress 

2d Session 



S. CON. RES. 86 



IN THE SENATE OF THE UNITED STATES 

May 15,1974 

Mr. Eiivix submitted the following coTirmrent resolution; whieh was referi'cd 
to the Comniittee on Rules and Administration 



CONCURRENT RESOLUTION 

Authorizing the printing of additioiuil copies of the hearings and 
final report of the Senate Select Comniittee on Presidential 
Campaign Activities. 

1 Besolved by the Senate (the House of Ih'prcsentatii'es 

2 concurring), That the authorization (pursuant to S. Con. 

3 Ees. 29, Ninety-third Congress, agreed to June 28, 1973) 

4 for the Senate Select Committee on Presidential Cam- 

5 paign Activities to have printed for its use five thousand 

6 additional copies of its hearings on illegal, improper, or un- 

7 ethical activities during the Presidential election of 1972 he 

8 extended through the duration of its existence as a select 

9 committee. 

10 Sec. 2. There shall be printed for the use of the Senate 

11 Select Committee on Presidential Campaign Activities six 

12 thousand additional copies of its final report to the Senate. 

y 



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93d congress 

2d Session 



S. RES. 327 



IN THE SENATE OF THE UNITED STATES 

May 20, 1974 

Mr. Ervin (for himself and Mr. Baker) submitted the following resolution; 
which was ordered to be placed on the calendar 

M.\T 21,1974 
Considered and agreed to 



RESOLUTION 

To extend the time of the Senate Select Committee on Presiden- 
tial Campaign Activities for making its final report to the 
Senate, and for prosecuting its judicial action against the 
President for certain taped recordings. 

1 Resolved, That section 5 of S. Ees. 60, which was 

2 adopted February 7, 1973, is hereby amended to read as 

3 follows: "The select committee shall make a final report of 

4 the results of the investigation and study conducted by it 

5 pursuant to this resolution, together with its findings and isuch 

6 legislative proposals as it deems necessary or desirable, to 

7 the Senate at the earliest practicable date, but no later than 

8 June 30, 1974. The select committee may also submit to 

9 the Senate such interim reportis as it considers appropriate. 

V 



45 



2 

1 After submission of its final report, the select committee 

2 shall have three calendar months to close its affairs, and on 

3 the expiration of such three calendar months shall cease to 

4 exist: Provided, however, That in case "the judicial action 

5 brought by the select committee against the President to ob- 

6 tain specified taped recordings of conversations in which the 

7 President and his former aide, John W. Dean, participated is 

8 not finally adjudicated before the expiration of such three 

9 calendar months, the select committee shall continue in exist- 

10 ence thereafter until thuly days subsequent to the occurrence 

11 of one of these alternative events, namely, the judicial action 

12 is finally adjudicated adversely to the select conmiittee, or the 

13 specified taped recordings are actually received by the select 

14 committee pursuant to the final adjudication of such judicial 

15 action or otherwise. In case the last event occurs, the select 

16 committee is empowered to report to the Senate an adden- 

17 dum to its final report setting forth findings and legislative 

18 recommendations based on what the taped recordings 

19 disclose.". 



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11. Opinion Letters to the Select Committee 



59 



SAM J. ERVIN, JR., N.C., CHAIRMAN 
HOWARD H. BAKER, JR., TENN., VICE CHAIRMAN 
HERMAN E. TALMADGE. GA. EDWARD J. GURNCY, PU^. 

DANIEL K. INOUYE, HAWAII U>WEI-i. P. WCICKER. JR., CONN. 

JOSEPH M, MONTOYA, N. MEX. 

SAMUEL DASH 

CHIEF COUNSEL AND STAFF DIRECTOR 

FRED D. THOMPSON 

MINORITY COUNSEI- 

RUPUS L. EDMISTEN 

DEPUTY COUNSEL 



'^tnile'b Pieties Genetic 

SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 

(PORSUAKT TO S. RES. M. MD CONGRESS) 

WASHINGTON. D.C. 20510 



MEMORANDUM OF LAW 



Admissibility of Hearsay Statements of a Co-conspirator 



While Congressional hearings are not limited to 
the receipt of evidence competent at a criminal trial, this 
memorandum will summarize for the information of the Select 
Committee the evidentiary rules regarding the admissibility at 
a trial of out-of-court statements of a co-conspirator. 

A. The Rule. 

The basic rule as to the admissibility of a hearsay 
statement of a co-conspirator against other co-conspirators is as 
follows: If there is a conspiracy, the statements of any 
co-conspirator in the course of and in furtherance of a conspiracy 
are admissible as substantive evidence against all conspirators. 
The fact of a conspiracy and its membership must be proved, 
but it may be proven either by circumstantial or direct evidence, 



60 



- 2 



and this evidence need not be presented before the co-conspirator's 
statements are heard. If the hearsay statement is presented 
before proof of the conspiracy, the statement is admitted con- 
ditionally, with the final determination of its admissibility 
dependent upon the presentations of such proof. 

To illustrate: In order to induce X to participate 
in the venture or to do a particular act (which need not be criminal 
in itself), A (a participant in a crime) tells _X_that B and C^ were 
active with A in an unlawful conspiracy. The testimony by X as 
to A's out-of-court statement is adnnissible in a federal criminal 
trial, as an exception to the hearsay rule, to prove that B_and C_ 
as well as A were participants in the conspiracy, so long as 
independent evidence of the conspiracy and participation by B and 
C is introduced at any point in the proceeding. 



61 



- 3 



B, The Authorities. 

The case law, which clearly establishes the 

admissibility against other co-conspirators of a co-conspirator's 

out-of-court statements, has an early beginning in the common 

law. One of the more important English cases is Regina v. 

O'Connell, 5 St. Tr. N.S. 1, 710-11 (1843): 

When evidence is once given to the jury of a 
conspiracy, against A, B, and C, whatever 
is done by A, B, or C in furtherance of the 
common criminal object, is evidence against 
A, B and C though no direct proof be given 
that A, B, or C knew of it or actually parti- 
cipated in it .... If the conspiracy be 
proved to have existed, or rather if evidence 
is given to the jury of its existence, the acts 
of one in furtherance of the common design 
are the acts of all; and whatever one does in 
furtherance of the common design he does as 
the agent of the co-conspirators. 

The modern federal cases apply the same rule. 

One such case is United States v. Pugliese , 153 F. 2d 497 

(2d Cir. 1945), in which Pugliese and his wife were charged with 

illegally possessing distilled spirits without having the required 

revenue stamps. Policemen approached the Pugliese house, 

talked to Mrs. Pugliese, searched the house and the adjoining one 



62 



- 4 - 



and found the illegal liquor. Mrs, Pugliese and then Mr. 

Pugliese were arrested and tried together. Mr. Pugliese was 
* 

convicted-* and on appeal argued that it was error for the jury 

to be allowed to use as substantive evidence "against Pugliese 

the talk between his wife and the policeman, " Judge Learned 

Hand, writing for the Court, stated that the admissibility of 

the evidence 

depended upon whether what she said was 
a step in a venture to which both were parties. 
If it was, it was admissible in any prosecu- 
tion or in any civil action . , , As we said 
in Van Riper v. United States, 13 F. 2d 961, 
967: "When men enter into an agreement for 
an unlawful end, they become ad hoc agents 
for one another, and have made a 'partnership 
in crime'. What one does pursuant to their 
common purpose, all do, and as declarations 
may be such acts, they are competent against 
all. " See also United States v. Goodman, 2 
Cir. 129 F. 2d 1009, 1013. The admissibility 
of the wife's declarations in the case at bar 
was for the judge, and the fact that the jury 
later acquitted her was irrelevant. The issue 
before him was altogether different from that 
before them: he had only to decide whether, 
if the jury chose to believe the witnesses, 
Pugliese and his wife were engaged in a joint 
undertaking; they had to decide whether they 
believed the witnesses beyond a doubt. Nor 
did it make any difference that, when the 
judge ruled, the prosecution had not yet proved 



* 
- Mrs. Pugliese was acquitted. 



63 



- 5 



a common enter-prise; the order in which 
the evidence goes in is never important. 
Cohen v. United States, 2 Cir. 157 F. 651, 
655; Hoeppel v. United States, 66 App, D.'C. 
71, 85 F. 2d 237, 242; United States v. 
Manton, 2 Cir., 107 F. 2d 834, 844. (Id. 
at 500.) 

The Pugliese case was approved and relied upon 
in United States v. Annunziato, 293 F. 2d 273 (2d Cir. 1961), 
which affirmed the conviction of a union business agent for re- 
ceiving money from an employer in violation of the Labor Management 
Relations Act. One important piece of evidence in that case was 
the testimony of Richard Terker, who had succeeded his deceased 
father, Harry Terker, as President of the Terry Contracting 
Company, Inc. Judge Henry J; Friendly described the challenged 



evidence: 



(Richard Terker) was allowed, over objection to 
testify to a luncheon conversation with his father 
late in June or early in July, 1957. The father 
informed the son "that he had received a call from 
Mr. Annunziato" and "that he had been requested 
by Mr. Annunziato for some money on the par- 
ticular project in question, the Bridgeport Harbor 
Bridge. I asked him what he intended to do, and 
he had agreed to send some up to Connecticut 
for him. " Cross examination developed the sum 
of money mentioned was $250. (Id. at 376) 



64 



The Court held that Richard Terker could testify as to what his 
father had told him about his conversation with Annunziato, 
since Harry Terker's statement was a declaration of a con- 
spirator in furtherance of the conspiracy and therefore adtnissible 
against Annunizato. 

Another important case is Allen v. United States, 
4F. 2d 688 (7th Cir. 1925) in which seventy five defendants were 
indicted for violation of the prohibition laws and other offenses. 
The Court described a situation where "from police to mayor, from 
baliff to the court, corruption was rampant, vice was protected, 
bribery was conimon, and justice was a mockery.' Id. at 691. The 
challenged testimony was of a newspaper reporter who related a 
conversation he had with an unidentified barmaid at one of the drinking 
establishments in question. The Court ruled that her being in back 
of the bar showed her to be a co-conspirator and hence "her 
admission was receivable as against other conspirators, it being 
made while the conspiracy was in force, and otherwise pertinent. " 

Id at 6^4. 

The Allen court explained: 

A conspiracy m,ay be established by circumistantial 
evidence or by deduction from facts. The common 
design is the essence of the crime, and this may be 



65 



tnade to appear when the parties steadily pursue 
the same object, whether acting separately or 
together, by common or different means, but 
ever leading to the same unlawful result. If the 
parties acted together to accomplish something 
unlawful, a conspiracy is shown, even though 
individual conspirators may have done acts in 
furtherance of the common unlawful design apart 
from and unknown to others. All of the conspirators 
need not be acquainted with each other. They may 
not have previously associated together. One 
defendant inay know but one other member of the 
conspiracy. But if, knowing that others have 
combined to violate the law, a party knowingly 
cooperates to further the object of the conspiracy, 
he becoines a party thereto. (Id. at 691) 

As can be seen fronn the Allen and Pugliese cases, 
the amount of independent evidence needed to perm^it consideration 
of a co-conspirator's out-of-court statement is well below that 
needed to secure the conviction. See also United States v. Geaney , 
417 F. 2d 1116, 1120 (2d Cir. 1969) (''a fair preponderance of the 
evidence independent of the hearsay utterances "). 

Of course, if the conspiracy has ended or the state- 
nient is not in furtherance of the conspiracy, for example, a 
confession by on conspirator after his arrest, the evidence is not 
admissible against his co-conspirators. In Krulew^itch v. United 
States. 336 U.S. 440, 443-i44 (1949), the Supreme Court,by Mr. 
Justice Blacl?; stated: 



34-966 O - 74 - pt. 1 - 6 



66 



.8 . 

It is firmly established that where made in 
furtherance of the objectives of a going 
conspiracy, such statenients (of one co- 
conspirator against another) are admissible as 
exceptions to the hearsay rule. This pre- 
requisite to adnnissibility, that hearsay statements 
by some conspirators to be admissible against 
another must be made in furtherance of the 
conspiracy charged, has been scrupulously 
observed by federal courts. 

The leading cooimentators are fully in accord with 

this position. See Wigmore, Evidence, Sec. 1079 (Chadbourn rev. 

1972); McCormick, Evidence, Sec. 267 (1972 ed). The proposed 

rules of evidence for Federal courts issued by the Supreme Court 

on November 20, 1972 makes a statement of a co-conspirator 

admissible on the ground that co-conspirators are each other's 

agents. Rule 801(d)(2)(E). Under this approach the statennents are 

not even considered hearsay. 





'^/'-Y.^^^ -:.>-a: ^. 



Samiuel Dash 
Chief Counsel 



^ ' ^ 

Davia Dorse n 



Assistant Chief Counsel 



Ronald D. Rotunda 



67 



SAM J. ERVIN, JR., N.C. CHAIRMAN 
HOWARD H. BAKER. JR., TENN., VICE CHAIRMAN 
HERMAN E. TALMADGE. GA. EDWARD J. GURNeY. FLA. 

DANIEL K. INOUYE. HAWAII LOWELL P. WEICKER. JR., CONN, 

JOSEPH M. MONTOYA, N. MEX. 

SAMUEL DASH 

CHIEF COUNSEL AND STAFF DIRECTOR 

FRED D. THOMPSON 

MINORITY COUNSEL 

RUFUS U EOMISTEN 

DEPUTY COUNSEL 



QlCwicb ^ictic& ^enaic 

SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 

(pURSUAMr TO S. RES. 60. B3D CONGRESS) 

WASHINGTON. D.C. 20510 



PRELIMINARY MEMORANDUM RE CONTEMPT OF CONGRESS 
UNDER 2 U.S.C. §192, 194 



This memorandum provides a general outline of 
the acts that constitute contempt of Congress under 
2 U.S.C. §192 and the procedures for the prosecution 
of such acts as set forth in 2 U.S.C. §194. The 
pertinent statutory provisions are attached to this 
memorandum. A more comprehensive legal memorandum 
supporting the basic conclusions herein presented is 
in preparation. The memorandum in preparation also 
deals with Congress' non- statutory contempt powers. 

An individual who has been validly subpenaed 
under Senate Resolution 60, sec. 3(a)(4) or (5) and 
ordered to appear and testify or produce records is 
within the jurisdiction of this Committee. After 
being subpenaed, the individual may commit contempt 
by failing to appear or by appearing but refusing to 
be sworn, to testify or to produce the records re- 
quested. United States v. Hintz , 193 F.Supp. 3 25, 
327-28 (N.D. 111. 1961). 



68 



- 2 - 

A. Failure to Appear 

Section 192 provides that every person summoned 
to testify who "willfully makes default" shall be 
deemed guilty of a misdemeanor punishable by a fine 
of not less than $100 nor more than $1000 and imprison- 
ment for not less than one month nor more than twelve 
months. "Default" does not occur until the subpoena 
return date. United States v. Bryan , 339 U.S. 323, 
330 (1950). The "willfully" determination merely 
requires a showing that the failure to comply was 
deliberate and not the result of inadvertence or 
accident. Fields v. United States , 164 F.2d 97, 100 
(D.C. Cir. 1947), cert, denied , 332 U.S. 851 (1948). 
A witness who, without permission, absents himself 
from the hearing after voluntary appearance or 
appearance procured by subpoena can also be held in 
contempt. Townsend v. United States , 95 F.2d 352, 
357 (D.C. Cir. 1938), cert, denied , 303 U.S. 664 (1938). 

B. Appearance And Refusal To Be Sworn 

The refusal of a witness to be sworn contitutes 
a refusal to give testimony that warrants prosecution 
for contempt. Eisler v. United States , 170 F.2d 273, 
280-81 (D.C. Cir. 1948), cert, denied, 338 U.S. 883 
(1948) . A witness who declines to be sworn must first 
be informed that such conduct is grounds for contempt 
and ordered to take the oath. If he continues to 



69 



- 3 - 

maintain his refusal, a prosecution for contempt 
may be instigated. 

C. Appearance And Refusal To Testify 
Section 192 declares that every person "who, having 
appeared, refuses to answer any question pertinent to 
the question under inquiry," is in contempt. Thus, 
a witness under oath must answer all questions rele- 
vant to the subject matter of the investigation unless 
he has a valid Fifth Amendment objection and has not 
been granted immunity under 18 U.S.C. §6001 et seq . 
See the accompanying "Preliminary Memorandum Re Pro- 
cedures For Conferring Immunity And Compelling Testimony 
And Production Before Senate Select Committee". The 
witness is entitled to an explanation of the pertinency 
of a question that must describe the topic under inquiry 
and the connective reasoning by which the precise 
question asked relates to it. The explanation must 
be sufficiently clear to enable the witness to determine 
for himself whether a proper nexus exists between the 
request and the subject matter under investigation. 
Watkins V. United States , 354 U.S. 178, 214-15 (1957). 
If, after the explanation is given, the Committee 
still wishes the witness to answer the question, it 
must specifically order the witness to respond. Failure 
to direct the witness to answer may result in a finding 



70 



- 4 - 

in a subsequent contempt prosecution that the Committee 
acquiesced in the witness' objections. Quinn v. United 
States , 349 U.S. 155, 165-70 (1955). A witness' good 
faith belief that a question is impertinent or his 
reliance upon attorney advice that he need not testify 
is no bar to a conviction for contempt if, in the sub- 
sequent prosecution, the refused questions are found 
proper. Sinclair v. United States , 279 U.S. 263, 299 
(1929). 

D. Appearance And Refusal To Produce Documents 
The willful failure of a witness to supply docu- 
ments requested by Committee subpoena that are pertinent 
to the subject matter under investigation is also punish- 
able under 2 U.S.C. §192 (1970), unless a valid Fifth 
Amendment privilege is asserted. All that is necessary 
to sustain a finding of willful failure to produce is 
a showing of intentional and deliberate failure to do 
so. United States v. Tobir , 195 F.Supp. 588, 614 
(D.C.D.C. 1961), reversed on other grounds, 306 F.2d 
270 (D.C. Cir. 1962), cert, denied , 371 U.S. 902 (1962). 

Each witness has the right, upon request, to an 
explanation of the pertinency of the records demanded. 
Such explanation must describe the topic under inquiry 
and the connective reasoning by which the documents 
relate to it. The explanation must be adequate to 
allow the witness to determine whether a sufficient 
relation exists between the request and the investi- 
gation. Watkins v. United States , supra . 



71 



- 5 - 

II. Procedure To Institute Prosecution For 
Contempt Of Congress 

The relevant procedures regarding a contempt 
prosecution are found in 2 U.S.C. §194. This pro- 
vision, in essence, provides that when a witness 
under subpoena refused to comply with the Committee's 
demands, the factual situation in which that refusal 
occurred shall be reported in writing to the Senate 
pursuant to the statutory language, or to the Presi- 
dent of the Senate if it is not in session who then 
must certify the statement of facts to the appropriate 
United States Attorney who, in turn, is obligated to 
bring the matter before the grand jury. 

Despite the language of §194 that, makes mandatory 
certification of the statement of facts by the Presi- 
dent of the Senate to the United States Attorney, it 
appears that, before certification, the matters must 
be put to debate by the Senate and a vote taken, at 
least if the Senate is in session at the time of the 
report. If the Senate is not in session, the President 
of the Senate apparently must make an independent judg- 
ment whether certification is warranted. See e.g., 
Wilson V. United States 369 F.2d 198, 201-03 (D.C. 
Cir. 1966) . However, once the report is certified 
to the United States Attorney, he has no discretion 
not to present the case to a grand jury, but must so 
proceed. The statute does not require that, upon the 
return of an indictment, a prosecution must be com- 



72 



- 6 - 

menced, thus apparently leaving the United States 
Attorney with some discretion whether actually to 
prosecute. 

The statement of facts submitted by the Committee 
should include, inter alia , a designation of the 
questions which the witness refused to answer or 
the records not produced, and a statement that the 
questions or records were pertinent to the subject 
under inquiry and that the Committee was thus deprived 
of information. Excerpts from the transcript of the 
proceedings before the Committee showing the exact 
context in which the questions were asked and the 
refusals made may be included in-^lie report. 




April, 1973 Chief Counsel 



-Sc/w\A/V7 ^CXviAvA^t 



Janie? hanulton 
Assistant Chief Counsel 



RonalH D. Rotunda 
Assistant Counsel 



73 



§190k 



TITliE 2.— THE CONGRESS 



Page 104 



(3) For the purposes of this subsection, the mem- 
bers of the Joint Committee on Atomic Energy who 
are Members of the Senate shall be deemed to be a 
committee of the Senate. (Pub. L. 91-510, title II, 
§ 252(a) , Oct. 26, 1970, 84 Stat. 1173.) 
EStective Date 

Section effective Immediately prior to noon on Jan. 3. 
1971, see section 601(1) of Pub. L. 91^10, set out as a 
note under section 72a of this title. 

§ 190k. Appropriations on annual basis for continuing 
procrams and activities; review by Senate and 
joint committees; Committee on Appropriations 
of the Senate, exception. 

(a) Each committee of the Senate (except the 
Committee on Appropriations), and each joint com- 
mittee of the two Houses of Congress, which Is au- 
thorized to recetive. report, and recommend the 
enactment of bills and joint resolutions shall, in its 
consideration of all bills and joint resolutions of a 
public character within its jurisdiction, endeavor to 
insure that — 

(1) all continuing programs of the Federal 
Government and of the government of the Dis- 
trict of Columbia, within the jurisdiction of such 
committee or joint committee, are designed; and 

(2) all continuing activities of Federal agen- 
cies, within the jurisdiction of such committee 
or joint committee, are carried on ; 

.so that, to the extent consistent with the nature, 
requirements, and objectives of those programs and 
activities, appropriations therefor will be made 
annually. 

(b) Each committee of the Senate (except the 
Committee on Appropriations), and each joint com- 
mittee of the two Houses of Congress which is au- 
thorized to receive, report, and recommend the en- 
actment of, bills and joint resolutions with respect 
to any continuing program within its jurisdiction 
for which appropriations are not made annually, 
shall review such program, from time to time, in 
order to ascertain whether such program could be 
modified so that appropriations therefor would be 
made annually. (Pub. L. 91-510, title n, § 253(a), 
(b), Oct, 26, 1970, 84 Stat. 1174.) 

Effective Date 
Section effective Immediately prior to noon on Jan. 3, 
1971, see section 601(1) of Pub. L. 91-510, set out as a 
note under section 72a of this title. 

§ 191. Oaths to witnesses. 

The President of the Senate, the Speaker of the 
House of Representatives, or a chairman of any Joint 
committee established by a Joint or concurrent reso- 
lution of the two Houses of Congress, or of a commit- 
tee of the whole, or of any committee of either House 
of Congress, is empowered to administer oaths to 
witnesses in any case under their examination. 

Any member of either House of Congress may ad- 
minister oaths to witnesses in any matter depending 
in either House of Congress of which he is a Member, 
or any committee thereof. (HS. I 101; June 26, 1884, 
ch. 123, 23 Stat. 60; June 22. 1938, ch. 594, 52 Stat. 
942, 943.) 

Derivation 
Acts May 3. 1798. ch. 36. § 1. 1 Stat 554. and Feb 8. 
1817. ch. 10. 3 Stat 345. 



Codification 
R. S. § 101 constitutes first sentence, and act June 26, 
1884, constitutes second sentence. 

§ 192. Refusal of witness to testify or produce papers. 

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 
joint committee established by a joint or concurrent 
resolution of the two Houses of Congress, or any com- 
mittee 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, punishable 
by a fine of not more than $1,000 nor less than $100 
and imprisonment in a common jail for not less than 
one month nor more than twelve months. (R. S. 
§ 102; June 22. 1938, ch. 594. 52 Stat. 942.) 
Derivation 

Act Jan. 24, 1857. ch. 19, i 1, II Stat. 165. 
Subpoena Rights op Hodse CoMMriTEE on Un-Americam 
AcnvrriES 

The Chairman of the Committee on Un-American 
Activities of the House of Representatives Is empowered 
to sign subpoenas Issued by the committee to require 
attendance at any hearing by the provisions of section 
121 (q) of the I^eglslatlve Reorganization Act of 1946, act 
Aug. 2, 1946, ch. 753, title I. part 2. 5 121 (q) , 60 Stat. 828. 

Cross References 

Joint Committee on Immigration and Nationality 
Policy, applicability of section, see section 1106 (g) of 
Title 8, Aliens and Nationality. 

Minor offenses tried by United States magistrates as ex- 
cluding offenses punishable under this section, see section 
3401 of Title 18. Crimes and Criminal Procedure. 

Section Repehred to in Other Sections 
This section Is referred to In section 194 of this title; 
title 18 section 3401; title 25 section 640; title 42 section 
2254; title 43 section 1398. 

§ 193. Privilege of witnesses. 

No witness is privileged to refuse to testify to any 
fact, or to produce any paper, respecting which he 
shall be examined by either House of Congress, or by 
any joint committee established by a joint or concur- 
rent resolution of the two Houses of Congress, or by 
any committee of either House, upon the ground that 
his testimony to such fact or his production of such 
paper may tend to disgrace him or otherwise render 
him infamous. (R. S. § 103; June 22. 1938, ch. 594. 
52 Stat. 942.) 

EJerivation 

Act Jan 24. 1862. ch II, 12 Stat 333 

Section Referred to in Other Sections 

This section is referred to In title 25 section 640; title 
42 section 2254; title 43 section 1398. 

§194. Certification of failure to testify; grand jury 
action. 

Whenever a witness summoned as mentioned In 
section 192 of this title fails to appear to testify or 
fails to produce any books, papers, records, or docu- 
ments, as required, or whenever any witness so sum- 
moned refuses to answer any question pertinent to 
the subject under Inquiry before either House, or any 
joint committee established by a joint or concurrent 
resolution of the two Houses of Congress, or any 
committee or subcommittee of either House of Con- 
gress, and the fact of such failure or failures Is re- 



74 



Page 105 



TITLE 2— THE CONGRESS 



§226 



ported to either House while Congress is in session 
or when Congress is not in session, a statement of 
fact constituting such failure is reported to and filed 
with the President of the Senate or the Speaker of 
the House, it shall be the duty of the said President 
of the Senate or Speaker of the House, as the case 
may be, to certify, and he shall so certify, the state- 
ment of facts aforesaid under the seal of the Senate 
or House, as the case may be, to the appropriate 
United States attorney, whose duty it shall be to 
bring the matter before the grand jury for its 
action. (R. S. § 104; July 13, 1936, ch. 884. 49 Stat. 
2041; June 22. 1938, ch. 594, 52 Stat. 942.) 

Derivation 
Act Jan. 24. 1857. ch. 19. § 3. 11 Stat. 156. 

Cross Rbtekences 
Joint Committee on Immigration and Nationality 
Policy, applicability of section, see section 1106 (g) ol 
Title 8. Aliens and Nationality. 

Section Referred to in Other Sections 

This section Is referred to m title 25 section 640; title 
42 section 2254; title 43 section 1398. 

§ 195. Fees of witnesses in District of Columbia. 

Witnesses residing in the District of Columbia and 
not in the service of the government of said District 
or of the United States, who shall be summoned to 
give testimony before any committee of the House 
of Representatives, shall not be allowed exceeding $2 
for each day's attendance before said committee. 
(May 1. 1876, ch. 88, 19 Stat. 41.) 

House Rule on Pay of Witnesses 

Rule XXXV, Rules of the House of Representatives, pro- 
vides that: "The rule for paying witnesses subpenaed 
to appear before the House or either of Its committees 
shall be as follows: For each day a witness shall attend, 
the sum of nine dollars; for each mile he shall travel In 
coming to or going from the place of examination, the 
sum of seven cents each way; but nothing shall be paid 
for traveling when the witness has been summoned at 
the place of trial." 

§ 195a. Restriction on payment of witness fees or 
travel and subsistence e.xpenses to persons sub- 
penaed by Congressional committees. 

No part of any appropriation disbursed by the 
Secretary of the Senate shall be available on and 
after July 12, 1960, for the payment to any person, at 
the time of the service upon him of a subpena re- 
quiring his attendance at any inquiry or hearing 
conducted by any committee of the Congress or of 
the Senate or any subcommittee of any such com- 
mittee, of any witness fee or any sum of money as an 
advance payment of any travel or subsistence ex- 
pense which may be incurred by such person in 
responding to that subpena. (Pub. L. 86-628, § 101, 
July 12, 1960, 74 Stat. 449.) 

§ 196. Senate resulution.s for investigations; limit of 
cost. 

Senate resolutions providing for inquiries and In- 
vestigations shall contain a limit of cost of such 
investigation, which limit shall not be exceeded ex- 
cept by vote of the Senate authorizing additional 
amounts. (Mar. 3, 1926. ch. 44, § 1, 44 Stat. 162.) 

§ 197. Compensation of employees. 

The rate of compensation for any position under 
the appropriations now available for, or hereafter 
made for. expenses of inquiries and investigations of 



the Senate or expenses of special and select commit- 
tees of the House of Representatives shall not exceed 
the rates fixed under chapter 51 and subchapter m 
of chapter 53 of Title 5, for positions with comparable 
duties; and the salary limitations of $3,600 attached 
to appropriations heretofore made for expanses of 
inquiries and investigations of the Senate or for ex- 
penses of si>ecial and select committees of the House 
of Representatives are repealed. (Feb. 9, 1937, ch. 9. 
title I, § 1, 50 Stat. 9; (Dct. 28. 1949, ch. 782. tiUe XT, 
§ 1106(a), 63 SUt. 972.) 

Amendments 
1949— Act Oct. 28. 1949, substituted "Classlflcatlon Act 
of 1949" for "(Classification Act of 1923", which for pur- 
poses of codification has been translated as chapter 51 and 
subchapter III of chapter 53 of Title 5. 

§ 198. Adjournment. 

(a) Unless otherwise provided by the Congress, 
the two Houses shall — 

(1) adjourn sine die not later than July 31 of 
each year; or 

(2) in the case of an odd-numbered year, pro- 
vide, not later than July 31 of such year, by con- 
current resolution adopted in each House by roll- 
call vote, for the adjournment of the two Houses 
from that Friday in August which occurs at least 
thirty days before the first Monday in September 
(Labor Day) of such year to the second day after 
Labor Day. 

(b) This section shall not be applicable in any 
year if on July 31 of such year a state of war exists 
pursuant to a declaration of war by the Congress. 

(Aug. 2, 1946, ch. 753, title I, § 132, 60 Stat. 831; 
Oct. 26. 1970, Pub. L. 91-510. title IV, § 461(b), 84 
Stat. 1193.) 

Amendments 
1970 — Pub. L. 91-510, in revising the provisions, Incor- 
corporated existing subject matter in subscc. (a) (1). sub- 
stituted therein an adjournment date not later than July 
31 of each year for prior provision for a date not later 
than last day (Sundays excepted) In month of July In 
each year, added subsec. (a) (2) , added subsec. (b) , which 
Incorporated former exception to adjournment In time of 
war, and deleted another exception to adjournment dur- 
ing national emergency proclaimed by the President. 

Effective Date op 1970 Amendment 
Amendment by Pub. L. 91-510 effective immediately 
prior to noon on Jan. 3, 1971. see section 601(1) of Pub. 
L. 91-510, set out as a note under section 72a of this Utle. 

EFFTcnvi Date 
Section effective Jan, 2. 1947, see section 142 of act 
Aug. 2, 1946, set out as ft note under section 190 of this 
title. 

Chapter 7.— CONTESTED ELECTIONS 

§§ 201 to 226. Repealed. Pub. L. 91-138, § 18, Dec. 5, 1969, 
83 Stat. 290. 

The subject matter of former sections 201 to 226 of this 
title Is now covered generally by chapter 12 of this title. 

Section 201, R.S. I 105, provided that whenever any 
person Intended to contest an election of any member of 
the House of Representatives he had to give notice In 
writing to that member within thirty days of the result 
of such election. 

Section 202. R.S. § 106. provided that a member of the 
House of Representatives whose election was contested 
serve an answer within thirty days after service of notice 
upon him. 

Section 203. R.S. § 107; Mar. 2, 1875. c 119, § 2 18 Stat. 
338, provided the time and order for taking testimony. 



io 



6AM J. ERVIN. JR., N.C., CHAIRMAN 
HOWARD H. BAKER. JR.. TENN. VICE CHAIRMAN 
HERMAN E. TALMADGE. GA. EDWARD J. GURNEY. FLA. 

DANIEL K. tNOUYE. HAWAII LOWELL P. WEICKER. JR.. CONM. 

JOSEPH M. MOMTOYA, N. MEX. 

SAMUEL DASH 

CHIEF COUNSEL AND STAFF DIRECTOR 

FRED D. THOMPSON 

MINORITY COUNSEL 

RUFUS L. EOMISTEN 

DEPUTY COUNSEL 



^ZvixietS -Slafcjs Syenaie 

SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 

(PURSUAfn" TO S. RES. 60, 93D CONGRESS) 

Washington. O.C. 20510 



MEMORANDUM CF LAW 
THE CONGRESSIONAL CONTEMPT POWER 



I . INTRODUCTION 1 

II. NONSTATUTORY, COMMON LAW CONTEMPT -- 

SUBSTANTIVE LAW „ 3 

III. NONSTATUTORY, COMMON LAW CONTEMPT -- 

PROCEDURE 6 

IV . STATUTORY CONTEMPT 11 

1. Legislative Purpose 13 

2. Authority of the Committee 15 

3. Pertinency 18 

4. Willfulness ?l 

V . OTHER RIGHTS OF WITNESSES ? ? 

1. Rules of Procedure , .,...?? 

2. Fifth Amendment ?3 

3. Necessity of a Quorum ?4 

4. Presence of Communications Media...,. ?5 

5. Multiple Counts of Contempt _. 96 



76 

MEMORANDUM OF LAW 
THE CONGRESSIONAL CONTEMPT POWER 



This memorandum is in addition to the "Preliminary 

V 

Memorandum re: Contempt of Congress" previously submitted. 



I. INTRODUCTION 

The investigatory power of Congress, buttressed by 
the sanction of contempt, is a very broad one. Although no- 
where in the Constitution is there expressly granted to either 
House of Congress a general power to investigate in aid of 
legislation, the Supreme Court has recognized that such a power 
is to be implied as an essential concomitant of Congress' legis- 
lative authority. Access to outside sources of information is 
deemed essential to the legislative process, and the Courts 
have recognized that compulsory procedures are therefore 
required. See, e.g., McGrain v. Daugherty , 273 U.S. 135, 
Ibl, 17^-75 (1927)5 one case which gives explicit judicial 
recognition of the right of either House of Congress to commit 
for contempt a witness who ignores its summons or refuses to 

_^/The use of the court's process to aid in the enforcement of 
a lawfully issued congressional subpoena as an alternative to 
the use of contempt is presently the subject of litigation 
involving the Select Committee and President Nixon. Conse- 
quently, it is not the subject of this memorandum.. 



77 



- 2 - 

V 
answer its inquiries. The rule in McGrain has much earlier 

roots as that case recognized. The very first trial by the 

Congress for contempt (in this case the trial was by the House 

of Representatives) vjas in late 1795 and early 1796. One 

Randall was "convicted" of an attempt to corrupt two members 

of the House of Representatives. The aid of the Courts was 

not needed for the House to imprison Randall. He remained as 

a prisoner of the House until January 13, 1796. One Whitney 

was discharged on January 5, 1796 because the evidence against 

him was found to be insufficient. There was no appeal of the 

*/In McCTain the high court upheld a Senate investigation as 
to whether the Department of Justice was performing or neglecting 
its duties. Such an investigation was one on which legislation 
could be based and thus the Senate had the power to compel the 
attendance of witnesses to give information on the subject, 
although the Resolution did not expressly avow that the investi- 
gation was in aid of legislation. 273 U.S. at 177-78. See also 
Watkins v. United States, 35^ U.S. 178, 187 (1957); Woodrow 
Wilson, Congressional Government (Boston: 1885), at 303-04: 

"The informing function of Congress should be 
preferred even to its legislative function. The 
argument is not only that discussed and interro- 
gated administration is the only pure and efficient 
administration, but more than that, that the only 
really self-governing people is that people which 
discusses and interrogates its administration... 

(emphasis added) 

Congress also has a right to compulsory process when it exer- 
cises its function of judging an election, e.g., Barry v. United 
States ex rel. Cunningham, 279 U.S. 597 (1929) (investigation of 
5"enatoriai election), or determining if a member should be 
expelled. In re Chapman , I66 U.S. 661 (I897). Similarly if 
Congress were to exercise its quasijudicial function of impeach- 
ment it would have the right to compel the attendance of wit- 
nesses. 



78 



- 3 - 

imprisonment to the Courts by either Randall or Whitney. 
Morelandj Congressional Investigations and Private Persons, 
40 S, Cal. L. Rev. 189, 190, et seq. (I967). 

In the above case, the House used its common law power of 
contempt; there now exists also a statutory contempt procedure 
(2 U.S.C. §192). This memorandum will first consider the common 
law contempt remedy; then it will analyze the statutory procedure, 
which is in addition to -- and does not preempt -- Congress' 
common lav; contempt power. 

II. NONSTATUTORY, COMIVICN LAW CONTEMPT -- SUBSTANTIVE LAW 

The first judicial recognition of a common law power 
of either House of Congress to punish for contempt is Anderson v . 
Dunn , 19 U.S. (6 Wheat.) 204 (182I). The Court upheld in broad 
terms the right of either House to attach and punish a person 
other than a Member of Congress for contempt of its authority, 
without using the judicial process. The prisoner, of course, 
could test the validity of his imprisonment by applying for a 
Writ of Habeas Corpus or suing the Sergeant at Arms. Thus, in 
Anderson v. Dunn , supra , 19 U.S. (6 Wheat.) 204 (1821), plaintiff 
sued the Sergeant at Arms of the House of Representatives for an 
assault and battery and false imprisonment. See also Marshall 
V . Gordon , 2^3 U.S. 521 (1917)5 Congress has implied power of 
contempt but may not arrest a person who only published matter 
slanderous of the House of Representatives and which presented 



79 



- 4 - 

V 

no immediate obstruction to legislative processes. Appellant 
in this case applied for habeas corpus after his arrest by the 
Sergeant at Arms. 

Congress has the implied power of contempt because it 

has: 

"the right to prevent aces which in and of 
themselves inherently obstruct or prevent 
the discharge of legislative duty or the 
refusal to do that which there is inherent 
legislative power to compel in order that 
legislative functions may be performed." 
Marshall v. Gordon, 243 U.S. 521, 5^-2 (1917). 

Thus the Senate may hold in contempt a witness who had been 
commanded to produce papers and who instead destroyed them after 
service of the subpoena. The punishment for a past contempt is 
appropriate to vindicate the "established and essential privi- 
lege of requiring the production of evidence." Jurney v . 
MacCracken , 294 U.S. 125, 149-150 (1935). 

This inherent common law power of contempt has been 
reaffirmed in dicta in several more recent cases. See Groppi 
V. Leslie , 4o4 U.S. 496 (1972): "Legislatures are not con- 
stituted to conduct full-scale trials or quasi-judicial proceed- 
ings and we should not demand that they do so although they 

VEut Congress has the power to order the arrest of a witness to 
compel his attendance, without first serving a subpoena, if it 
has reason to believe that the witness will not appear if sum- 
moned. Barry v. United States ex. rel. Cunningham , 279 U.S. 597, 
616-19 ( 1929 ) . ~~~ 

The Groppi case involved a state legislative body; there is no 
reason to believe the case would have been decided differently 
had it involved either House of Congress or a Committee thereof. 



80 



- 5 - 

possess Inherent power to protect their own processes and 
existence by way of contempt proceedings." I^. at 500; 
Russel V. United States , 369 U.S. 7^9, 756 & n.8 (1962). 

Nonstatutory contempt has some advantages over statu - 
tory contempt, 2 U.S.C. s 192 , discussed infra . Although a 
United States Attorney has a nondiscretionary duty under the 
statute to refer a possible Section 192 violation to the Grand 
Jury, Ex parte Frankfeld , 32 F. Supp. 915 (B.D.C. 1940), see also 

o f 

2 U.S.C. s 19^j it is unclear what procedures are followed if 
the United States Attorney fails to perform his duty or engages 
in a less than energetic prosecution. In addition, while the 
President has pardoned statutory contempts of Congress -- pursu- 
ant to his constitutional right of pardon -- it is unclear as 
to his poTjer to pardon for nonstatutory contempts of Congress. 
Professor Corwin, in his The President: Office and Powers 
(3d rev. ed. 19^8), at p. 436 n.l34 states that the President 
may not pardon for nonstatutory contempts of Congress. See also 
Ex parte Grossman , 267 U.S. 87, 118-20 (1925); Corwin, supra , at 
457, n.l32. 



"^ Howaver, before the United States Attorney may act on an 
apparent section 19^ violation, there must be a certification to 
him by either the House involved or the President of the Senate 
or the Speaker of the House when Congress is not in session. There 
is no automatic certification to the United States Attorney, fo»- 
the Committee report of the apparent section 19? violation is then 
subject to further consideration on the merits. 'Ulson v. United 
States , 369 F.^d 198(D.C. Cir. 1966 ) (case construing section 194.) 



81 



- 6 - 

It appears that the power of eithe:'- House to maintain 
an individual in custody for nonstatory contempt is limited 
to the duration of the currant session of that House. Anderson 
V. Dunn , 19 U. 1, (6 ^■Jheat.) 204, 231 (1821). Though the '^enate 
is in theory a continuing body, McGrain v. Daugherty , 273 U.S. 
135, 181-1B2 (1927), it is nonetheless thought that a confinement 
by the Senate also only exists until the end of its session. 
Moreland, 'Congressional Investigations and Private Persons , 
40 S. Cal. L. Pev. 189, 199 n. 31 (1967). And in any trial 
before either House due process will require that the contemner 
be given notice and an opportunity to be heard prior to convic- 
tion and sentencing. Groppi v. Leslie , 404 U.S. 496 (1972). 

Til, NONSTAT'JTOFY, C0I4M0N LAW CONT-ilMPT PFOCSDUFE 

Citations for nonstatutory contempt are normally 
made as follows, A subpoena is issued by the committee which 
desires to question a witness; the subpoena is personally served 
on him. if he fails to appear, or appears and refuses to answer, 
the committee reports the matter to the full House or "enate 
which then adopts a resolution that the speaker of the House or 
President oro tempore of the Senate command the Sergeant at Arms 
or hi^ deputy to arrest the offending party and bring him before 
the bar of the House in question to answer pertinent questions 
and to be kept in custody to await further order, McGrain v , 
Daugherty , 273 U.S, 135, 152-54 (1927). The arrest warrant is 
valid anywhere within the territory of the United "tates. 



34-966 O - 74 - p». 1 - 7 



82 



- 7 - 

Anderson v. Dunn, 19 U., '^. (6 '^rhaat) 204, 934 (18''1). 

The witness is then brought before the bar of the House 
or "".enate, and again asked the question sought or confronted with 
the charges against him. He may be given time to prepare a 
defense or the right to counsel, and allowed to speak in his own 
behalf. If he refuses to comply with the demand of the House 
(or "cnate) he is cited for contempt by majority vote of the 
House (or Senate) , and remanded to the custody of the Sergeant 
at Arms to be held in the common jail of the District of Columbia 
or in the guardroom of the Capitol Police. He will be held 
until he has purged himself of the contem.pt, or until released 
at the end of the session or by vote of the House (or Senate) . 

The exercise of the inherent contempt power of Congress 
may be tested by a writ of habeas corpus. Hx parte Nugent , 18 
F. Cas. (No. 10375) 471, 481-83, (D.C. Cir. 1848). Cf. Jurney 
v. MacCracken , 294 U.S. 125 (1935). Congress can exercise its 
contempt power only within the scope of its constitutional 
power, and when Congress engages in a "proceeding in a matter 
beyond their legitimate cognizance ..." the judiciary will 
intervene. Kilbourn v. Thompson , 103 U. ^. 168, 197 (1881), The 
scope of review is, however, limited, for courts have been 
reluctant to interfere with the exercise by another branch of 
government of one of its inherent powers. The court will review 
only the character of the offense to the extent of determining 



83 



- 8 - 



that the House has jurisdiction over the prisoner. The issue 

of guilt of the charge is left to the judgement of Congress. 

■Jurney v. MacCracken , "94 U.T, 125 (1935) (3randeis, J.) 

"This contention /~of MacCrackcn? goes to the question 
of guilt, not to that of the jurisdiction of the 
'^enatci .... '-Tiether he is guilty, and whether he ha 3 
so far purged himself of contempt that he does not 
now deserve punishment, are the questions which the 
"enate proposes to try. The respondent to the petition 
did not, by demurring, transfer to the court the 
decision of those questions. The sole function of the 
writ of habeas corpus is to have the court decide 
whether the "enate has jurisdiction to make the deter- 
mination which it proposes." Id_. at 152. 

The scope of a federal court's review in a normal habeas pro- 
ceeding has expanded considerably since Jurney v. MacCracken , 
supra but the fact still remains that habeas review is consider- 
ably more narrow than the review a court would exercise on direct 
appeal, "^ee generally , P.^velopments in the Law-Federal Habeas 
Corpus , 03 Harv. h. Fev. 1038, 1113 et seq . (1970) . Thus the 
scope of a court's inquiry over a House of Congress' common law 
contempt action should be much narrower than the scope of a 
court's inquiry over a statutory contempt conviction. For 
example, in a comraon law contempt action, the nature of the 
punishment required as remedial action would be within the dis- 
cretion of the legislature and will not be judged by the courts 
unless there is "an absolute disregard of discretion and a mere 
exertion of arbitrary power...", Marshall v. Gordon , 243 U.S. 
521, 545 (1917). '.ee also Barry v. United "states ex. rel. 
Cunningham, 279 U.".. 597, 620 (1929). 



84 



- 9 - 



Since Congress has in recent ^ears relied exclusively 

on statutory contanpt, th^ro are only a few cases in which the 
courts have ruled on the exercise of rhe inherent contempt power. 
In two, Kilbourr. v. Thoiroson , supra , and :!ar3hall v. Gordon , 
supra , has the Court refused to uphold the Congressional action. 
"^t is therefore not entirely clear as to the limits of Congres- 
sional pcjwcr in this area. At the least, all investigations 
oust be made pursuant tc a valid legislative purpose, and 
lacking that purpose, a witness cannot be punished for refusing 
to cooperate. Kilbourn v. Thompson , 103 't_ =:. 168, 194-96 (1881). 
"^t also appears that no cr.a can be compelled to disclose infor- 
mation on matters which fall outside the authorized scope of 
inquiiry of a coomittae, for the investigative power is inherent 
in the House of Congress as a whole, and a conmittee is restricted 
tr the mission delegated to it by the Congress. vatkins v. 

"nitec 'tates , 354 U. 3. 178,7.06 (1957). Thus, a question must 

* > 

meet a pertinency standard in order for a contempt for failure 
to answer the ouestion to oass constitutional muster for "a 



the pertinency standard for statutory contempt is discussed 
in part III of this moiaorandxim, ""tatutory Contempt." 



85 



- 10 - 

witness rightfully may refuse to answer whera tha bounds cf 
the powar ars exceeded or ths questions are not pertinent to 
the matter under inquiry." McGrain v. Daugh^rty , 273 \J.1. 135, 
176 (1929). '-Jhere thi witness is called before the entire House 
and the questions asked again, it may well be that pertinency 
would be measured by the full scope of the investigatory power 
of Congress and not that of only the coonittee before which the 
testir.ony originally took place. 

"ince Congress has the power to judge guilt or inno- 
cence of the contempts it charges, a finding of willfulness would 
be a matter to be determined by the appropriate House of Congress, 
subject only to the limited review discussed, supra . zo what 
extent the requirements read into statutory cor.ter?,pr proceedings, 
discussed infra , may be found to actually be a part of due 
process, it is difficult to determine. '^o date, due process 
has been applied ro legislative contenpt proceedings onl\ to the 
extent of requiring notice and an opportunity to be heard. 
:ropoi V. ".eslie , 404 U. 3. 496 (1972). Tt ma_. well be the case 
that the due process requirements of Groppi will be extended and 
not limited to the facts of that c=s3. -he "roppi Court, however, 
did explain that due process does not require a quasi- judicial 
proceeding by a '^gislature in order to have a valid contempt. 
Id . at 500. 

3ecause of the unclear limitations on nonstatutory 
contenpt and because contempt trials are tine consiiming, m 155 7 



86 



- 11 - 

Congress enacted a statute providing for criminal process in 
the federal courts with prescribed penalties for contempt of 
Congress. The present da^. version of that statute is 2 U. "'..C. 
section 192. This statute is merely supplementary of the 
nonstatutory power of Congress, it docs not preempt the field. 
In re Chapman , 166 tj.s. 661, 671-72 (1897). However, since 
Congress, by the use of that statute, seeks the aid of the 
federal courts, the courts require that evory defendant prose- 
cuted for a statutory violation be accorded all of the guarantees 
and 'safeguards which the law gives to every defendant in a federal 
criminal case — even though the defendant would not have the 
right to all of those guarantees had Congress used its own 
common law power of contempt and not resorted to the courts. 
^.g., Watkins v. United states , 354 U, -;. 173, 206-08 (1957). 

Tt is to section 192 that we now turn. 
T.V, "TATTTTOPY CONT^^J'IPT 

2 U.",C. section 192 (1970) provides as follows: 



/ "lec alsos 

"i 193, Privilege of witnesses 

"No witness is privileged to refuse to testify to any 
fact, or to produce any paper, respecting which he shal] 
be examined h\ either House of Congress, or by any 
joint committee established bv a joint or concurrent 
resolution of the two Houses of Congress, or by any 
committee of either House, upon the ground that his 
testimony/ to such cact or his production of such paper 
may tend to disgrace him or otherwise render him 
infamous. " 

"§ 194. I" ertif ication of failure to testify- grand 
jury action failing to testify or produce records 
"^Jhenjver a v/itness summoned as mentioned in section 192 

footnote continued on following page. 



87 



- 12 - 

"i 192. Tafusal of witness to testify or produce 
papers 

"■jivery person who having been summoned as a witness 
by the authority of either House of '^ongress to give 
testimony or to produce papers upon any matter under 
inquiry before either House, or any joint committee 
established by a joint or concurrent resolution of the 
two Houses of Congress, 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, punishable by a fine 
of not more than SI, 000 nor less than ?;100 and 
imprisonment in a common jail for not less than one 
month nor more than twelve months." 

This section has been used extensively in recent years, especially 
since ■'Jorld '-^ar ri, and the provision has bean considered at 
length by the courts. Four major elements of the crime have 
bean identified; 

(1.) The investigation during which the contempt occur- 
red must be in aid of a valid legislative purpose. 



footnote continued from preceding page. 

fails to appear to testify or fails to produce any bookg 
papers, records, or documents, as required, or whenever 
any witness so summoned refuses to answer any question 
pertinent to the subject under inquiry before either 
House, or any joint committee established by a joint 
or concurrent resolution of the two Houses of Congress, 
or any committee or subcommittca of either House of 
Congress, and the fact of such failure or failures is 
reported to either House while Congress is in session, 
or when Congress is not in session, a statement of fact 
constituting such failure is reported to and filed with 
the President of the "Senate or the "peaker of the 
House, it shall be the duty of the said President of 
the ".enate or "peaker of the House, as the case may be, 
to certify, and he shall so certify, the statement of 
facts aforesaid under the seal of the '"'enata or House, 
as the case may be, to the appropriate United "tates 
attorney, whose duty it shall be to bring the matter 
before the grand jury for its action," 



88 



- 13 - 

(2.) TTia committea conducting the investigation must 
be authorized to conduct the particular inquirv in 
question. 

(3.) The question that was refused an answer or the 
papers the production of which was required must be 
pertinent to the authorized inquiry, 
(4.) Tho. default must be willful. 

1. Legislative Purpose . The nature of the investiga- 
tive power requires that each inquiry be based on a constitution- 
al grant of legislative authority. That pov;er is, hov/ever, very 
broad, ^'^atkins v. United -^.tates , 354 U.^>. 173 (1957)! 

" rt emcom.pas^es inquiries concerning the administration 
of existing laws as well as proposed or possibly 
needed statutes. It includes surveys of defects in 
our social, economic or political system for the 
purpose of enabling the Congress to remedy them. :"t 
comprehends probes into departments of the Federal 
Government to expose corruption, inefficiency or waste." 
Id . at 187. 

However, there is no power to expose the activities of individuals 

m.erely for the sake of exposure without justification in terms 

j^/ However, Congress and its Committees do hav3 the power "to 
inquire into and publicize corruption, maladministration or ineffi- 
ciency in agencies of the Covernment. I'ha t was the only kind of 
activity described by '•''oodrow Wilson in Congressional Covernment 
when he v^rote; 'The informing function of Congress should be 
preferred even to its legislative function.' Zd_. Ht 303. ^rom 
the earliest times in its history, the Congress has assiduously 
performed an 'informing function' of this nature. See Landis, 
Constitutional Limitations on the Congressional Power of Investi- 
gation, 40 Karv. L, <ev. 153, 168-94." '^atkins v. United "tates , 
354 U.T. 178, ?00 n. 33 (1957) (emphasis added). 



89 



- 14 - 

of functions of Congress; it is not the function of Congress 
to conduct legislative trials. Td^. at 187, 200, Private 
affairs may be inquired into, however, and their exposure 
compelled, in pursuit of an independent legislative purpose. 
Td . at 200, ?06, The existence of a valid legislative purpose is 
to be judged simply by whether the legislative body has juris- 
diction over the subject matter of the invt^stiga tion. United 
states V. rumely , 345 U.S. 41, 44 (1953) (an enabling resolution 
contains the grant and lim.itations of the committee's power). 
The fact that a committee has reported no legislation at all as 
the result of an extended series of hearings does not negate a 
conclusion that the committee has a legislative purpose. Town send 
V. United states , 95 F,2d 352, 355 (D.C. Cir. 1938). 

The Court declared in McGrain v. Daugherty , 273 U.S 
135 (1927), that a legislative purpose was to be presumed when 
the subject matter of the investigation was within the juris- 
diction of Congress, since the only legitimate purpose a house 
could have in investigating would be to aid it in legislating. 
Td . at 178. The presumption cannot be rebutted by impugning the 
motives of individual Congressmen, for motive is irrelevant as 
long as the assembly's legislative purpose is in fact being 
served, Watkins v. United States , 354 u,s. 178, 200 (1957). 
Record, Barrenblatt v. United States , 360 U.S. 109, 132-133 
(1959). See also Eisler v. United "tates , 170 F.2d 273, 278-79 
(D.C. Cir. 1948), cert, dismissed, 338 U.l 883 (1949), The 



90 



- 15 - 

court will simply re^usa to hear allegations that the ulterior 
motive of the investigators is not to aid legislation but to 
harass individuals for their political beliefs. Eisler v. United 
states , supra . Tenney v. ^randhove , 341 M.-. 367, 377-78 (1951) 
cf . United -tat^s v. O'Srien , 391 U.l. 367, 382-86 (1968). 

Once a legislative purpose is established, the permis- 
sible scope of the investigation is as far reaching as the 
potential legislative function to which it is related. Town send 
V. United "itates , 95 F.2d 352, 361 (D.C. Cir. 1938), It can 
emcompass all matters necessary to the fulfillment of the 
legislative purpose. 

?. Authority of the Committee . A witness can be 
punished for refusal to testify before a Congressional committee 
only if that committee and in turn its subcommittee v/ere author- 
ized by its parent House or committee to conduct the investiga- 
tion to which the testimony pertained. This requirement is an 
element of the requirement that the question be pertinent: it is 
therefore jurisdictional. United ^tates v. Orman , 201 F.?d 148, 
153 (3d Cir. 1953). "uch authority can be conferred b/ statute 
or by special resolution. It is an element of the offense, and 
must be pleaded and proved by the government. Cojack v. United 
"States , 384 U.3. 70?, 705 (1966). (Contempt citation reversed 
because no showing that parent committee had delegated to sub- 
committee before whom the witness had appeared the authority to 
make the inquiry- the full committee also had not specified the 



91 



- 16 - 

araa of inquiry). Tha authorization defines the subject of the 
inquiry and thus puts some limits on its scope- the due process 
rights of the accused require that the authority be clear and 
certain, and conferred in accordance with law. T6_.at 708, 714. 
The requirement of committee authorization is composed of two 
elements. First, the committee or subcommittee must be empowered 
to conduct the specific investigation undertaken. second, it 
must be shown that the inquiry with respect to which the con- 
tempt occurred was within the scope of the delegated authority, 
nnited "tates v. Lamont , 236 F.2d 312, 314 (2d Cir. 1956). 
In the case of the House Un-American Activities 
Committee, th-j 'Supreme Court was willing to read the committee's 
authorizing resolution very broadly. Although the Court had 
criticized the vagueness of the HUAC resolution and the ambiguity 
of its operative terms in watkins v. United "tates , 354 U.S. 173, 
202 c_t seq . (1957) , it read Watkins narrowly and the resolution 
broadly in Barenblatt v. United '^.tates , 360 U. ^ 109, 117-18 
(1959) f' "ust as legislation is often given meaning by the gloss 
of lagislative reports, administrative interpretation, and long 
useage, so the proper meaning of an authorization to a congression- 
al committee is not to be derived alone from its abstract terms 
unrelated to the definite content furnished them by the course 
of congressional actions." JTd. at 117. The committee's history 
forced the Court to conclude that its legislative authority to 
conduct the instant inquiry was "unassailable". Id. at 122. 



92 



- 17 - 

In other areas, however, the courts have read authori- 
zing resolutions narrowly, particularly where required to avoid 
the nece-sity of facing a constitutional question. The Court 
of Appeals for the District of Columbia Circuit has refused to 
find that the Senate Select Committee on Lobbying Activities 
was authorized to inquire into attempts to influence general 
public opinion through the publication and distribution of 
political books and pamphlets. The Court found that the subject 
was too remote from the authorized investigation to sustain 
abridgement of the freedoms of speech and of the press which 
might be involved. rumely v. TJnited ;tates , 197 F.''d 166, 17?- 
75 (n.c, Cir. 1952), See also United "tates v. Kamin , 136 F. lupp. 
791, 801-04 (D. Mass. 1956). And the District of Columbia Circuit 
took a similar position with respect to a congressional investi- 
gation of the New "ork Port Authority, A broad House subpoena 
duces tecum which called for internal memoranda and intra- 
authority documents was met with a claim of executive privilege. 
The court did not decide the claim of privilege, but held that 
the general authorizing resolution could not be construed to 
permit an investigation of such scope and depth, especially 
when, contrary to the situation in Barenblatt , such an investi- 
gation had not before been attempted. Tobin v. United ^.tates , 
306 v.9d 270, 274-75 (D.C. Cir. 1962). Before it would feel it 
necessars to reach squarely the constitutional question raised 
by an investigation of the magnitude claimed, the court would 



93 



- 18 - 

raquiro the authorization to be spelled out in specific terms. 
Id. at 275. 

Authorizations go only to the permissible subject 
matter of an investigation. They do not import authority over all 
activities of persons related to the subject matter, Ihe affairs 
of a witness may be investigated only in so far as they relate 
to that subject' there is no power to inquire beyond it. 
Fumely v. United -^.tates , 197 F.2d 166, 176 (D.C. Cir. 195?). 

3. Pe-^-tinoncy . Closely related to the problem of the 
authority of the committee is the recpairement that the questions 
asked be pertinent to the subject under inquiry. Pertinency 
is an explicit statutory requirement of 2 U." C. <5ection 19'', 
which refers to a refusal to answer "any question pertinent to 
the question under inquiry...." Because of the pertinency re- 
quirement, authorizations must be clear and specific. Pertinency 
is an element of the offense, and since in a criminal proceeding 
the presumption of regularity of Congressional activity is out- 
weighed by the presumption of innocence of the accused, it must 
be pleaded and proved by the government. Sinclair v. United 
States , 279 tj.s. 263, ;?96-97 (1929). Tt is the particular sub- 
ject under inquiry at any given time, and not the full investiga- 
tive authority of the committee, to which the question must be 
pertinent: thus the indictment must specify the question under 
congressional comitiittee inquiry at the time of the defendant's 
alleged default. Pussell v. Unit e d states , 369 U.S. 749, 771 
(1962). 



94 



- 19 - 

Portinency is a broader concept than that of relevance 
in the field of evidence, extending in its broadest reach to 
the entire field of inquiry permitted by the legislative purpose. 
United States v. Orman , :>07 F.?d 148, 153 (3d Cir. 1953). 
It i<3 a question of law to be decided by the court rather than by 
thj jury, and good faith mistake as to the law is not a defense 
for the defendant . "Sinclair v. United states , 279 U.'^. 263, 293- 
99 (1929)' Braden v. United qtateg , 365 U.S. 432, 436 (1961). 
Tt is the question and the possible answer which must be pertin- 
ent- the pertinence of the actual answer is immaterial. United 
-states v. Orman , 207 F.2d 148, 154 (3d Cir. 1953). Since per- 
tinency is an element of the offense, lower courts have held that 
the defense is not waived by a failure to object to a question on 
pertinency grounds . United states v. Orman , 207 F.2d 148, 154 
(3d Cir. 1953): Bowers v. United States , 20? F.'^d 447, 452 (D.C. 
Cir. 1953). The 'Supreme Court has suggested to the contrary in 
dictum. Barenblatt v. United States , 360 U.S. 109, 123-24 (1959X 
See also Deutch v. United States , 367 U,s. 456, 472-73, 475 (1961) 
(Frankfurter, Clark, Hsrlan ":: '«rhittaker dissenting). 

^'/hen a question is not clearly pertinent on its face, 
the government will be allowed to introduce extraneous evidence 
to establish pertinency. Powers v. United states , 202 F.2d 447, 
450, 453 (D.C. Cir. 1953). The-e are generally five methods by 
which pertinency can be shown? 

(1) From the definition of the inquiry found in the 



95 



- 20 - 

authorizing resolution or statute- 

(2) from the opening remarks of the coiranittee chairman 

(3) from the nature of the proceeding" 

(4) from the question itself- and 

(5) from the response of the committee to a pertinency 
objection. 

watkins v. United -^tates , 354 U.3, 173, 209-214 (1957). 

"■.inco statutory contempt is a criminal of cense subject 
to the same due process safeguards as any other offense, avoid- 
ance of the infirmity of vagueness requires that a witness be 
able to know when he is violating the law. The pertinency of 
the question must therefore be made clear to the witness before 
ha is compelled to answer, at least so long an he makes an ob- 
jection based on pertinency. 3ince the witness acts at his 
peril if he refuses to answer, he is entitled to know in advance 
the subject of the inquiry to which the committee deems the 
que'?tion pertinent, "-"atkins v. United 'tate<3 , 354 tj.--;. 178 (19571 
^*7a tk i n s explained that a witness is entitled to be informed of 
the relation of the question to the subject of the investigation 
with the same precision as the due process clause requires of 
statutes defining crimes. ld_. at 208-09. "ee also id . at 214-15. 

Judge Burger, now Chief Justice, while sitting on the 
District of Columbia Court of Appeals, interpreted wa tk i n s as 
creating a reasonable man standard: it requires not that the 
witness in fact subjectively appreciate the pertinency of the 



90 



- :?i - 

question, but only that it be demonstrated with sufficient 
clarity that a reasonable man would have understood it. -^acher 
V. United states , 252 F.2d 828, 835 (D.C. Cir. ) , rav'd on other 
grounds , 356 U.3. 576 (1958). 

4. Willfulnass . Willful default is the fourth re- 
quirement of the statute, and must be proved beyond a reasonable 
doubt. Ouinn v. United states , 349 U.T. 155, 165 (1955). ''^7ill- 
fulnoss does not, howeve;:, require action with an evil motive 
or purposer all that is required is an intentional and deliberate 
act, not the product of inadvertence or accident. Good faith 
on the part of the witness is not a defense. ""^inclair v. United 
states , 279 U.S. 263, 298-99 (1929). Fields v. United ^-tates , 
164 F.?d 97, 100 (D.C. Cir. 1947), cert, denied , 332 U.S. 851 
(1948); Townsend v. United Itatos , 95 F, 2d 352, 358 (D.C. Cir. 
1938). The statute encompasses all forms of intentional failure 
to testify, failing to appear, refusal to be sworn or to answer 
questions, and leaving the hearing before being excused. 
Townsend v. United ^Jtates , 95 F.2d 352, 355 (D.C. Cir. 1938). 
The v/itness is, however, entitled to a clear ruling by the commit- 
tee on his objections to their demands. United 'States v. Kamp , 
102 F. lupp. 757, 759 (D.D.C. 1952). He must not be made to 
guess as to his legal position- it must be made clear to him that 
the committee demands an answer notwithstanding his objection, 
and at what point the committee considers him to be in default, 
Ouinn v. United States, 349 U.S. 155, 165-66 (1955). gee also 



97 



- 22 - 

Flaxer v. United states , 358 U.S. 147 (1958) (Douglas, J.) 

Any withholding of subpoenaed documents is a violation 
of the statute if it in fact results in obstruction of the 
inquiry, regardless of the form in which it is manifested, 
although the default does not mature until the return date of the 
subpoena. If the witness is in fact unable to comply with the 
request, the burden is on him to come forward to explain that 
inability. United Slate? v. Bryan , 339 U.S. 323, 329-33 (1950). 
V. 0TH5P :"TGHTS OF WITNESSES 

1. rules of Procedure . 

Congress has the power to determine how its hearings 
are to be conducted, generally without review by the courts of 
its procedures. United States v. Hintz , 193 F. Supp. 325, 331 
(N.D. 111. 1961). For example, there is no right to cross- 
examine unless allowed by the committee. United States v. Fort , 
443 F.2d 670, 679 (D.C. Cir, 1970), cert, denied , 403 U.S. 932 
(1971) . The witness is compelled to abide by the procedures 
set out, and may not ordinarily impose conditions on his testi- 
mony, either by demanding the right to make a statement or to 
give his testimony in closed session. Id.; Bisler v. United 
States , 170 F.2d 273 (D.C. Cir. 1948), cert, dismissed , 338 U.S. 
883 (1949). A witness, however, can claim the benefit of the 
Committee's rules. The failure of the committee to abide by its 
own rules can be a defense to a refusal to testify at a hearing 
conducted not in accordance with them. Yellin v. United States, 



34-966 O -74 - pt. 1 - 8 



98 



- 23 - 

374 U.S. 109 (1963). An investigation by a subcommittGe not 
authorized in conformity with the rules of the committee is 
likewise void, and will not sustain a conviction for refusal to 
testify. Gojack v. United States , 384 U.S. 702, 712 (1966). A 
committee, in short, should exercise care in following its own 
rules. 

2. Fifth Amendment , 

The fifth amendment right to refuse to incriminate 
oneself is available to a witness testifying before a Congression- 
al committee. Quinn v. United States , 349 U.S. 155, 162 (1955). 
The privilege is a personal one, however, and cannot be claimed 
on behalf of a corporation or in relation to documents kept in a 
representative capacity. McPhaul v. United states , 364 U.S. 372, 
380 (1960): Hale v. Henkel , 201 U.S. 43 (1906).- No particular 
form of words is necessary to invoke the fifth amendment privi- 
leger all that is required is, that the committee be able to 
understand the claim; the burden is on it to inquire into ob- 
jections which are unclear. Quinn v. United states , 349 U.S. 
155, 162-64 (1955). The privilege, however, is waived unless it 
is invoked and the witness cannot select the place to stop in his 
testimony. Once answers to incriminating questions have been 
given, the privilege is waived as to other questions on the same 
subject, which can be refused only if they present a real danger 



Thus, it may not be able to be claimed by the Committee to Fe- 
elect the President (C.R.P.), an organization, not an individual. 



99 



- ?A - 

of further incrimination, PogGrs v. United States , 340 U.T. 
367, 370-74 (1951). The waiver may occur oven though thv:i witness 
was not aware until it was too late that the right had been 
waived. Pogers v. United States, supra . 

The witness is not the sole judge of his claim, 
Hoffman v. United States , 341 U.S, 479 (1951). Ihie privilege 
cannot be used by the witness as a subterfuge to avoid answering 
innocent questions. It can be claimed only when there is a 
reasonable apprehension on the part of the witness that his 
answer would furnish evidence or reveal sources of evidence which 
could lead to his conviction for a criminal offense. He may 
therefore be asked to explain his claim of such a reasonable 
apprehension, although he may not be forced actually to disclose 
the information. United states v. Jaffe . 98 F. Supp. 191, 193-94 
(D.D.C. 1951). He need not disclose the incriminating facts in 
order to sustain his claim- it need only be evident that an 
answer or explanation of refusal to ansv;er might result in in- 
jurious disclosures. Emspak v. United States , 349 U.S. 190, 
198-99 (1955). 

3 , Necessity of a Quorum . 

The necessity of a quorum as a prerequisite to a valid 
contempt is unclear. The presence of a quorum was required to 
sustain a conviction for perjury in Christoffel v. United States , 
338 U.S. 84 (1949), But one year later the "Supreme Court held 
that the lack of a quorum did not excuse a witness from honoring 



100 



- 25 - 

a valid subpoena issued by an authorized coiranitteG. United "tates 
V. Byran , 339 U.S. 323, 329-32 (1950). While a quorum is probably 
not necessary, keeping a quorum at the time a witness commits 
his contemptable act is certainly the more cautious course, 

4. Presence of Communications Media . 

A witness does not ordinarily have a right to object 

to the presence of the communications media at a hearing. United 

States V. Hintz , 193 F. Supp. 325 (N.D, 111. 1961). In one 

case, however, a lower court held that the presence of TV 

cameras and reporters made it impossible for the witness to 

testify in a calm, considered and truthful manner, and that that 

condition justified his refusal to testify. United states v. 

Kleinman , 107 F. Supp. 407, 408 (D.D.C. 1952). Kleinman has 

certainly not been extended by other courts. In United states v. 

Orman , 207 F.2d 148 {3d Cir. 1953), for example, the court held 

that the question of whether a witness before a congressional 

committee should have a right to demand that information given 

by him which cannot aid the committee in its legislative purpose 

be withheld from the public is for legislative, not for judicial 

control. 207 F.2d at 159. And in United •':tates v. Hintz , 193 

F. Supp. 325 (N.D. 111. 1961), the court stated: 

"This court has no power to impose upon Congress, 
a coordinate branch of our government, either a 
proscription against or a prescription for radio, 
television, movies or photographs. This court 
is of the opinion that the mere presence of such 
mechanisms at an investigative hearing does not 
infect the hearing with impropriety." 193 F. Supo. 
at 331-32. 



101 



- 26 - 
ThG T ^intz court specifically rejected any reading of Klei n man 
which would per se prevent a conviction of any witness who 
coinmits a contempt of Congress "while in the presence of 
spectators and the sensory apparatus which permits the nation 
to sea and to hear." Id^. at 329. However, at a trial the 
defendant may seek to prove that the conditions of testimony were 
not reasonably conducive to that clarity and accuracy to which 
defendant was normally capable. The question is for the fact- 
finder, ld_. at 332. '^ee also Rules of Procedure for the 'Select 
Committee, Pule 35. 

5 . Multiple Counts of Contempt . 

viitnesses are often indicted on multiple counts of 
contempt, one for each question asked and refused. It has been 
held, however, that where separate questions relate to a single 
subject of inquiry or seek to establish a single fact, only one 
penalty for contempt may be imposed. United '^tates v. Orman , 
207 F.2d 148, 160 (3d Cir. 1953). Where there are separate re- 
fusals to answer separate questions, it is proper for each 
refusal to be set out as a separate count. _Id^. One who has 
flatly refused to testify further can be prosecuted only for that 
one refusal; the committee cannot multiply contempts by continu- 
ing questioning. United States v. Costello , 198 F.2d 200. 204 (2d 
Cir.), cert, denied , 344 U.S. 874 (1952). A witness should still 
be asked several questions so that if a court subsequently finds 
that some questions were improper, there will be other questions 



102 



- 27 



upon which a valid conviction may be upheld. 




\,i_j35H«tfGl Dash 



/ 



/^/' 

^C^-^ 



chief Counsel 



V'' * ' 



Jl- <^ p 



David Dorsen 

Assistant Chief Counsel 



/\o-^i .J^y^ ^D- A^- /<-c^^ .-< 

Fonald D. rotunda 

Assistant Counsel 



November 16, 1973 



103 



SAM J. ERVIN, JR., N.C.. CHAIRMAN 
HOWARD H. BAKER, JR., TENN., VICE CHAIRMAN 
HERMAN E. TALMAOGE, GA. EDWARD J. GURNEY, PUk. 

DANIEL K. INOUrE. HAWAII LOWELL P. WEICKER. JR.. CONN. 

JOSEPH M. MONTOYA, N. MEX. 

SAMUEL DASH 

CHIEF COUNSEL AND STAFF DIRECTOR 

FRED D. THOMPSON 

MINORITY COUNSEL 

RUFUS L. ED Ml STEM 

DEPUTY COUNSEL 



^tntieb ^iccie& -Scnalc 

SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 

(pursuant to S. res. W. flSD CONGRESS) 

WASHINGTON. D.C. 20510 



PRELIMINARY MEMORANDUM RE PROCEDURES FOR CONFERRING 
IMMUNITY AND COMPELLING TESTIMONY AND PRODUCTION BEFORE 

SENATE SELECT COMMITTEE 



This memorandum outlines the procedures that this 
Committee must follow to obtain an order from a United 
States district court that confers immunity on a witness 
before the Committee and compels him to testify and 
produce pertinent records. A more detailed memorandum 
substantiating the conclusions here presented is in 
preparation. 

The relevant statutory provisions, which were 
part of the Omnibus Crime Control Act of 1970 and 
are now found at 18 U.S.C. §6001, 6002, 6005, are 
attached to this memorandum. At the outset, it should 
be noted that the immunity conferred upon a witness 
under §6002 is not total "transactional" immunity. 
Rather, it is immunity from the "use", for purposes 
of prosecution, of compelled testimony or records, or 
any information directly or indirectly derived from 
such testimony and records, except in a prosecution 
for perjury, giving false statements, or otherwise 
failing to comply with the order. The Supreme Court 



104 



- 2 - 

in Kastigar v. United States , 406 U.S. 441, 453 (1972) , 
held that a witness, under §6002, could be constitu- 
tionally compelled to testify and produce records 
over his Fifth Amendment objection even though §6002 
does not provide complete protection frcxn future 
prosecution. 

I. Basic Operation of Statutory Procedure 

Unlike previous immunity statutes that automatically 
conferred immunity upon a witness when he testified, the 
current provisions require that the witness expressly 
claim his privilege against self-incrimination, or, 
where the witness has not yet been called, that there 
be an indication that he may claim his privilege (see 
section II, below), before the immunity process can be 
set in motion. Thus §6002 provides that immunity may 
be granted "A^_7henever a witness refuses, on the basis 
of his privilege against self-incrimination, to testify 
or provide other information in a proceeding before or 
ancillary to . . . either House or Congress, . . . or a 
committee or a subcommittee of either House." The 
purpose of the change was to ensure that a witness 
receives immunity only when he asserts his privilege 
and to eliminate the previously existing situation 
where a witness, merely by testifying, would receive 
an "immunity bath" in regard to all offenses indicated 
by his testimony. 



105 



- 3 - 

Once the claim of privilege has been made or it 
appears that it may be made, certain specific procedures 
must be followed before a district court can issue the 
immunizing order and ccanpel testimony or production. 
These procedures, which are set forth in §6005, are: 

(1) The request for an immunizing order must be 
approved by an affirmative vote of two-thirds of the 
members of the full Committee and the application for 
the order must certify that the application was so 
approved . 

(2) At least ten days prior to the date on which 
the request for the order is made, the Committee must 
serve the Attorney General with notice of its intention 
to submit the request; moreover, certification that the 
Attorney General has been properly notified must 
accompany the application. 

The purpose of notice to the Attorney General is 
to allow him to isolate from the immunity grant any 
incriminating information already in his files, thereby 
establishing the "independent source" necessary for 
possible future prosecution. The government has an 
affirmative burden, in a later criminal prosecution, 
to demonstrate that evidence used in that prosecution 
was not derived from immunized testimony or records. 
See Kastigar v. United States, supra, at 460. 



106 



- 4 - 

The Attorney General does not have the power to 
veto a request for immunity. Moreover, the Court has 
no discretion to refuse the order pi;ovided the pro- 
cedural prerequisites described above, i.e., an 
affirmative two-thirds vote of the Committee and 
notification of the Attorney General, are fulfilled. 
However, the Attorney General may, under §6005 (c), 
require the District Court to defer the order's 
issuance for a period not more than twenty days from 
the date the order is requested. This provision was 
inserted to allow the Attorney General to obtain 
additional time, if necessary, to establish an 
independent basis for future prosecution. 

A witness may challenge the application for an 
immunizing order only on the ground that the prescribed 
procedural requirements have not been met. No attack 
on, e.g., the scope of the Committee's jurisdiction 
or the breadth of the production request, is allowable 
at this stage. 

II. Pre-Hearing issuance of Direction to Testify 

Section 6005 authorizes a grant of immunity and 
compulsion to testify and produce records regarding 
a witness who " may be called to testify or provide 
other information." (emphasis added) It is thus 
possible for the statutory procedures to be put into 



107 



- 5 - 



operation before the witness actually appears and 
asserts his privilege against self-incrimination. 
See, e.g., Kastigar v. United States , supra . The 
purpose behind this provision is obvious. In many 
cases a Committee will know in advance that a witness 
will refuse to answer without immunity protection. 
To require the witness to appear before the Committee 
and claim his privilege before the immunity procedure 
is initiated would be a useless ritual. 

An advance order is obtained by following the 
procedures, described above, necessary for the 
acquisition of a regular immunity order. It appears, 
however, that, as a technical matter, immunity is not 
actually conferred until the witness asserts his 
privilege and is directed to testify by the chairman 
of the Committee. 




aii»«l Dash 
Chief Counsel 




APPTL, 1973 



^ C\^ ^ 

James Hamilton 
Assistant Chief Counsel 



Ronald C. Rotunda 
Assistant Counsel 



108 



§5037 



TITLE 18— CRIMES AND CRIMINAL PROCEX>URE 



Page 4472 



Transfer of Functions 

All functions of all other oflicers of the Department 
of Justice and all functions of all agencies and employees 
of such Department were, with a few exceptions, trans- 
ferred to the Attorney General, with power vested In him 
to authorize their performance or the performance of 
any of his functions by any of such officers, agencies, and 
employees, by former sections 1 and 2 of 1950 Reorg, Plan 
No. 2. H 1. 2, efl. May 24. 1950, 15 P. R. 3173, 64 Stat. 1261. 

§5037. I'aiole. 

A juvenile delinquent who has been committed and 
who, by his conduct, has given sufficient evidence 
that he has reformed, may be released on parole at 
any time under such conditions and regulations as 
the Board of Parole deems proper if it shall appear 
to the satisfaction of such Board that there is rea- 
sonable probability that the juvenile will remain 
at liberty without violating the law. (June 25. 1948, 
ch. 645, 62 Stat. 858.) 

Legislative History 

Reviser's Note. — Based on title 18, U. S. C . 1940 ed., 
§ 927 (June 16. 1938. ch. 486. § 7. 52 Stat. 766). 

Reference to section establishing the Board of Parole 
was omitted as unnecessary. 

Minor changes were made in phraseology. 

Exception From Transfer of Functions 
Functions of the Board of Parole were not Included 
in the transfer of functions of offlcers. agencies and em- 
ployees of the Department of Justice to the Attorney 
General, made by former sections 1 and 2 of 1950 Reorg. 
Plan No. 2. § 1. eff. May 24. 1960. 15 F, R. 3173. 64 Stat 
1261. 

Cross References 
Board of Parole established, see section 4201 of this 
title 

Part v.— I.MMUNITY OF WITNESSES 

Sec. 

6001. Definitions. 

6002. Immunity generally. 

6003. Court and grand Jury proceedings. 

6004. Certain administrative proceedings. 

6005. Congressional proceedings. 

Amendments 
1970— Pub. L. 91-452. title 11. § 201(a). Oct. 15. 1970, 84 
Stat. 926. added part V and items 6001 to 6005. 

Part Referred to in Other Sections 
This part is referred to in title 7 section 2146. 

§6001. Definitions. 
As used in this part — 

(1) "agency of the United States" means any 
executive department as defined in section 101 
of title 5, United States Code, a military depart- 
ment as defined in section 102 of title 5, United 
States Code, the Atomic Energy Commission, the 
China Trade Act registrar appointed under 53 
Stat. 1432 (15 U.S.C. sec. 14»^ , the Civil Aero- 
nautics Board, the Federal Communications 
Commission, the Federal Deposit Insurance 
Corporation, the Federal Maritime Commission, 
the Federal Power Commission, the Federal 
Trade Commission, the Interstate Commerce 
Commission, the National Labor Relations 
Board, the National Transportation Safety 
Board, the Railroad Retirement Board, an arbi- 
tration board established under 48 Stat. 1193 (45 
U.S.C. sec. 157). the Securities and Exchange 
Commission, the Subversive Activities Control 



Board, or a board established under 49 Stat. 
31 (15 U.S.C. sec. 715d) ; 

(2) "other information" includes any book, 
paper, document, record, recording, or other 
material; 

(3) "proceeding before an agency of the United 
States" means any proceeding before such an 
agency with respect to which it is authorized to 
issue subpenas and to take testimony or receive 
other information from witnesses under oath; 
and 

(4) "court of the United States" means any of 
the following courts; the Supreme Court of the 
United States, a United States court of appeals, a 
United States district court established luider 
chapter 5, title 28, United States Code, the District 
of Columbia Court of Appeals, the Superior Court 
of the District of Columbia, the District Court of 
Guam, the District Court of the Virgin Islands, the 
United States Court of Claims, the United States 
Court of Customs and Patent Appeals, the Tax 
Court of the United States, the Customs Court, and 
the Court of Military Appeals. 

(Added Pub. L. 91-452. title II, § 201(a), Oct. 15, 
1970, 84 Stat. 926.) 

Effective Date; Savings Provision 
Section 260 of Pub. L. 91-452 provided that: "Tlie pro- 
visions of part V of title 18. trnlted States Code, added by 
title II of this Act [this part), and the amendments and 
repeals made by title II of this Act [sections 835. 895. 
1406. 1954. 2424. 2514 and 3486 of this title, sections 15, 
87f. 135c. 499m. and 2115 of Title 7. section 25 of Title 
11. section 1820 of Title 12. sections 32, 33, 49. 77v. 78u, 
79r. 80a-41. 80t>-9. 155. 717m. 1271, and 1714 of Title 15. 
section 825f of Title 16. section 1333 of Title 19. 
section 373 of Title 21, sections 4874 and 7493 of Title 26, 
section 161 of Title 29. section 506 of Title 33. sections 405 
and 2201 of Title 42. sections 157 and 362 of Title 45. sec- 
tions 827 and 1124 of Title 46, section 409 of Title 47, sec- 
tions 9, 43, 46-48, 916, 1017. and 1484 of Title 49, sec- 
tion 792 of Title 50, and sections 643a, 1152, 2026, and 2155 
of Title 50, Appendix] , shall take eflect on the sixtieth day 
following the date of the enactment of this Act (Oct. 15, 
1970 1 . No amendment to or repeal of any provision of law 
under title II of this Act shall affect any immunity to 
which any individual is entitled under such provision by 
reason of any testimony or other information given before 
such day." 

Amendment or Repeal of Inconsistent Provisions 
Section 259 of Pub. L. 91-452 provided that: "In addi- 
tion to the provisions of law specifically amended or 
specifically repealed by this title [see effective date note 
set out under this section), any other provision of law 
Inconsistent with the provisions of part V of title 18, 
United States Code (adding by title II of this Act) |thU 
part). Is to that extent amended or repealed." 

§6002. Immunity generally. 

Whenever a witness refuses, on the basis of his 
privilege against self-incrimination, to testify or 
provide other information in a proceeding before or 
ancillary to — 

( 1 ) a court or grand jury of the United States. 

(2) an agency of the United States, or 

(3) either House of Congress, a joint committee 
of the two Houses, or a committee or a subcommit- 
tee of either House, 

and the penson presiding over the proceeding com- 
municates to the witness an order Issued under this 
part, the witness may not refuse to comply with the 



109 



Page 4473 



TITLE 18— CRIMES AND CRIMINAL PROCEDURE 



§6005 



order on the basis of his privilege against self-in- 
crimination ; but no testimony or other information 
compelled under the order (or any information di- 
rectly or indirectly derived from such testimony or 
other information) may be used against the witness 
in any criminal case, except a prosecution for per- 
jury, giving a false statement, or otherwise failing to 
comply with the order. (Added Pub. L. 91-452, title II, 
§ 201(a). Oct. 15, 1970. 84 Stat. 927.) 

Effective Date 
Section effective on the sixtieth day following Oct 15. 
1970, see section 260 of Pub L. 91-452. set out as a note 
under section 6001 of this title. 

Section Referred to in Other Sections 
This section is referred to In sections 6003. 6004. 6005 
of this iltle. 

§ 600.3. Court and grand jury proceedings. 

(a) In the case of any individual who lias been or 
may be called to testify or provide other information 
at any proceeding before or ancillary to a court of 
the United Stales or a grand jury of the United 
States, the United States district court for the judi- 
cial district in which the proceeding is or may be 
held shall issue, in accordance with subsection (b) 
of this section, upon the request of the United States 
attorney for such district, an order requiring such 
individual to give testimony or provide other infor- 
mation which he refuses to give or provide on the 
basis of his privilege against self-incrimination, such 
order to become effective as provided in section 6002 
of this part. 

(bi A United States attorney may. with the ap- 
proval of the Attorney General, the Deputy Attorney 
General, or any designated Assistant Attorney Gen- 
eral, request an order under subsection (ai of this 
section when in his judgment — 

1 1 ) the testimony or other information from 
such individual may be necessary to the public 
interest; and 

(2) such individual has refused or is likely 
to refuse to testify or provide other informa- 
tion on the basis of his privilege against 
self-incrimination. 
(Added Pub. L. 91-452. title 11, § 201(a), Oct. 15, 
1970. 84 Stat. 927.) 

Effective Date 
Section effective on the sixtieth d.iy following Oct. 15. 
1970. see section 260 of Pub. L 91^52. set out as a note 
under section 6001 of this title 

§ 6004. Certain admhiistrative proceodinRs. 

ia» In the case of any individual who has been 
or who may be called to testify or provide other in- 
formation at any proceeding before an agency of 
the United States, the agency may. with the ap- 
proval of the Attorney General, issue, in accordance 
with subsection (bi of this section, an order requir- 
ing the individual to give testimony or provide other 
iivformation which he refuses to give or provide on 
the basis of his privilege again t self-incrimination, 
such order to become effective a^ provided in section 
6002 of this part. 



(b) An agency of the United States may issue an 
order under subsection (a) of this section only if in 
its judgment — 

(1) the testimony or other information from 
such individual may be necessary to the public 
interest; and 

(2) such individual has refused or is likely to 
refuse to testify or provide other information 
on the basis of his privilege against self- 
incrimination. 

(Added Pub. L. 91-452. title II, §201<ai, Oct. 15. 
1970. 84 Stat. 927.) 

Effective Date 
Section effective on the sixtieth day following Oct. 15. 
1970. see section 260 of Pub L. 91-152. set out as a note 
under section 6001 of this title 

§ 6005. Congressional proceedings. 

(a) In the case of any individual who has been 
or may be called to testify or provide other informa- 
tion at any proceeding before either House of Con- 
gress, or any committee, or any subcommittee of 
either House, or any joint committee of the two 
Houses, a United States district court shall issue, in 
accordance vrith subsection (b) of this section, upon 
the request of a duly authorized representative of the 
House of Congress or the committee concerned, an 
order requiring such individual to give testimony or 
provide other information which he refuses to give 
or provide on the basis of his privilege against self- 
incrimination, such order to become effective as pro- 
vided in section 6002 of this part. 

(bi Before issuing an order under subsection (a) 
of this section, a United States district court shall 
find that — 

( 1 ) in the case of a proceeding before either 
House of Congress, the request for such an order 
has been approved by an affirmative vote of a 
majority of the Membeis present of that House; 

(2) in the case of a proceeding before a commit- 
tee or a subcommittee of either House of Congress 
or a joint committee of both Houses, the request 
for such an order has been approved by an affirm- 
ative vote of two-thirds of the members of the 
full committee; and 

(31 ten days or more prior to the day on which 
the request for such an order was made, the At- 
torney General was served with notice of an in- 
tention to request the order. 

I c 1 Upon application of the Attorney General, the 
United States district court shall defer the issuance 
of any order under subsection (a) of this section for 
such period, not longer than twenty days from the 
date of the request for such order, as the Attorney 
General may specify. (Added Pub. L. 91-452. title II, 
§ 201(a) , Oct. 15, 1970. 84 Stat. 928.) 
Effective Date 
Section effective on the sixtieth d.iy following Oct. 15, 
1970. see section 260 of Pub. L. 91-452. set out as a note 
under section 6001 of this title. 



no 



SAM J. CftVIN. JR., N.C., CHAIRMAN 
HOWARD H. BAKER, JR.. TENN., VICE CHAIRMAN 
HERMAN E. TALMADOE. GA. EDWARD J. OURNEY. Wl-A. 

DANIEL K. INOUYE, HAWAII LOWELL P. WEICKER, JR., 

JOSEPH M. MOKTOYA, N. MSC. 

SAMUEL DASH 

CHIEF COUNSEL AND STAFF DIRE3CT0R 

FRED D. THOMPSON 

MINORITY COUNSEL 

RUFUS L. EDMISTDI 

DEPUTY COUNSCL 



'^CnHcb ^ialeii Syenctie 

SELECT COMMITTEE ON 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(pURSUAt^ TO S. RCS. 60. DD CONGRESS) 

WASHINGTON, D.C. 20510 



MEMORANDUM OP LAW 

Congressional Immunity for Witnesses * 

I , Introduction 

It has long been recognized that immunity Is a 

useful and necessary tool to uncover and prosecute 

crime. See , e.g. , Lord Chancellor Macclesfield's Trial, 

16 Howell's State Trials 767, 11^7 (1725); 8 Wigmore, 

Evidence sec, 228l, at 492 n.2 (McNaughton rev. ed. I961) . 

(Immunity statute enacted by Parliament to aid in its 

investigation of the Lord Chancellor Macclesfield.) 

Mr. Justice White, concurring in Murphy v. Waterfr ont 

Commission , 378 U.S, 52, 94-95 (1964), observed that 

immunity statutes: 

"have for more than a century been resorted 
to for the investigation of many offenses, 
chiefly those whose proof and punishment 
V7ere otherv/ise impracticable, such as 
political bribery, extortion, gambling, 
consumer frauds, liquor violations, conunerclal 
larceny, and various forms of racketeering." 



*This memorandum supplements an earlier memorandum submitted 
to this Committee respecting procedures for granting immunlt 



Ill 



Page 2 

Mr, Justice Frankfurter has said that immunity statutes 
have "become part of our constitutional fabric," Ullman 
V. United States , 350 U.S. 422, 438 (1956), and the Supreme 
Court, in the recent case of Kastigar v. United States , 
4o6 U.S. 44l, 446 (1972), recognized that immunity is 
often necessary because "many offenses are of such a 
character that the only persons capable of giving useful 
testimony are those implicated in the crime." 

II. Historical Backp:round 

The power of the Government to compel a person to 
testify bC'^oi-e governmental bodies has its origins in 
early c ;im.c-",.i law. For example, the power with respect 
to couits was established in England by statute over 
four hundred years ago. Statute of Elizabeth, 5 Eliz. I, 
c, 9» sec. 12 (1562). The pox;er to compel testimony, 
however, is limited in this country by the Fifth 
Amendment privilege against compulsory self-incrimination 
and a similar privilege also exists in British lav;. 
The Fifth Amendment privilege protects a witness against 
disclosures which could be used in a criminal prosecution 
against him or could lead to evidence which could be 
used in such a prosecution. This privilege may be 
asserted in any proceeding, civil or criminal, judicial 



112 

Page 3 

or otherwise. The scope of the Fifth Amendment privilege 

is limited, in turn, by the power of the Government 

to grant immimity from prosecution, (or "indemnity" as 

the English call the concept). See generally Leonard W. 

Levy, Origins of the Fifth Amendment at 328 , 495 

(Oxford U, Press I968) , In fact, immunity is about 

as old as the privilege against self-incrimination. Id. 

The first Congressional immunity statute was 
passed in I857, Act of Jan. 24, I857, 11 Stat, at 
Large 155. The specific purp'ose behind the enactment 
of this statute was to compel v/itnesses to testify before 
a Congressional investigation into alleged corruption 
within the IIc;use of Representatives. Under that Act, 
witnesc. 3 siould acquire immunity simply by testifying 
before a Congressional Committee. The immunity conferred 
by the Act was "transactional" immunity, which meant that 
by testifying a witness could completely immunize himself 
from prosecution for the transaction about v;hich he 
testified. This kind of immunity v;as tantamount to 
a pardon. The resulting "immunity baths" during the 
next five years prompted Congress to reform the immunity 
statute. A nevi immunity statute v;as passed v/hich 
provided only "use" immunity. Under the new statute 
the testimony actually given before Congress could not 
be used against the witness in a subsequent prosecution. 



113 

Page 4 

though the v/itness could sti ll be prosecuted . Act of 
January 24, l862, 12 Stat, at Large 333. However, as 
this reformed statute was drafted, evidence derived from, 
or the fruit of, a witness' compelled testimony could 
be used to prosecute him, even though the actual compelled 
testimony could not be used against him. 

A statute similar in all essentials to the Act of 
January 24, l862 V7as attacked in Counselman v. Hitchcock , 
l42 U.S. 54? (1892). The Supreme Court held that the 
limited immunity statute there involved was unconstitutional 
in that it did not bar the use of the fruits of the 
testimony as well as the testimony itself. There was 
dictum in the case, however, which said that an immunity 
statute i.rvit.t "afford absolute immunity against future 
prosecution for the offense to which the question relates." 
Id. at 586. Within three weeks after Counselman was 
decided. Congress becar. to amend its immunity statutes 
to confer transactional immunity in order to comply with 
the broad dictum in that case. However, Congress did not 
get around to amending the Act of Jan. 24, I862 -- which 
applied to Congressional investigations -- vintil the 
Immunity Act of 1954, which v;as codified in 18 U.S.C. 
sec. 3486. Under that statute (now repealed) Congress' 
immunity power was limited to national security 
investigations . 



34-966 O - 74 - pt. 1 - 9 



114 

Page 5 

In spite of the fact that many federal statutes 
after Counselman offered total transactional immunity, 
the Supreme Court, in Murphy v. Waterfront Commission , 
378 U.S. 52 (1964), suggested that the broad dictum of 
Counse lman was not the law-. In that case, which 
involved a state immunity statute, the Supreme Court held 
that a witness in a state proceeding may he constitutionally 
compelled to give testimony incriminating under federal 
law as long as the Federal Government is prohibited from 
making any use of the compelled testimony or its fruits. 
378 U.S. at 79. The Federal Government could still 
prosecute, but it could not use a witness' compelled 
testimony (or evidence derived from that compelled 
testirrcryj against him. 

Ill, Congressional Immunity - 1970 

After careful study, the National Commission on 
Reform of Federal Criminal Laws recommended that the 
federal immunity laws be reformed. The Commission 
concluded that a narro^^r, use immunity provision such 
as considered in the Murphy case would meet constitutional 
requirements. See Coimiscion .Working Papers at l446 (1970) . 

Congress agreed, and in 1970 enacted the immimity 
provisions of the Omnibus Crime Control Act of 1970, 
codified at 18 U.S.C. sec. 60OI through 6005, which 



115 



Page 6 

include the provisions relevant to the Select Committee's 

operations. These immunity provisions only provide 

that a v/itness' compelled testimony, or any information 

derived directly or indirectly from such compelled 

testimony, may not be used against him in a subsequent 

criminal prosecution. The witness may still be prosecuted , 

however, using independently derived evidence. 

The narrow use immunity provided for in l8 U.S.C, 

sec. 6001 et seq .was attacked as iinconstitutional in 

Kastigar v. United Stat es, 4o6 U.S. ^4l (1972). The 

petitioners argued, inte r alia , that, in order to compel 

a witness to testify, it was necessary to confer full, 

transactional immunity, narrov/ use immunity being 

insuffi.iLat. The Supreme Court disagreed and upheld 

the constitutionality of the statute: 

"We hold that such immunity from use and 
derivative use is coextensive with the scope 
of the privile:^e against self-incrimination, 
and therefore is sufficient to compel 
testimony over a claim of the privilege." 
4o6 U.S. at 453. 

"The statute, like the Fifth Amendment, grants 
neither pardon nor amnesty. Both the statute 
and the Fifth Amendment allow the government 
to prosecute using evidence from legitimate 
independent sources." 4o6 U.S. at 46l. 

Kastigar involved testimony before a Grand Jury, 

but there is nothing in the logic or language of the 



116 

Page 7 

case that would make constitutionality depend on v;hether 

a Grand Jury or a Congressional Committee is seeking 

testimony. 

The legislative history of the immunity provisions 

of section 600I et seq . is useful in explaining its 

operation and intent. H.R., Rep. No. 91-15^9, 9lGt 

Congress, 2nd Session (found in 2 U.S. Code Cong, and 

Admin. News 4017-l8 (1970)) states that: 

"Section 6002 contains the basic immunity . . . 
authorization ... . The vatness must 
claim his privilege to receive immunity. 
The proposed provision is not an immunity 
bath. See United States v. Monia , 63 S. Ct. 409, 
317 U.S. 42^ S7~L. Ed." 37^Cl9p). Ref usal 
^9,. 1^.3. t lfi/ follo wing; comm uni cation of the 
i'jimi ml t?'- order w arrants ^ contempt proceedings . 
Kb "o-^al testimony of other information secured 
C-.'or a witness can be used against him in a 
c.-i.-.ual proceeding. This statutory immunity is 
intended to be broad as, but no broader than, the 
privilege against self-incrimination. (See 
Senate hearings at p. 326.) It is designed to 
reflect the use-restriction immunity concept of 
M urphy v. Wate rfron t Corn-mission , . . • rather 
than the transac'sicJn immunity concept of 
Counselman v. Ki tchcock, .... The witness 
is also protected against the use of evidence 
derivatively obtained .... The exception for 
perjury, false statements or other failure to 
comply- with the order is probably unnecessary. 
See United States v. Monia , .... 

* * * * 

■ "Section 6005 sets out the procedure to be 
follov:ed in congressional proceedings. A 
court order must be obtained based on an 
affirmative vote of a majority of members 
present in a proceeding before either House 
or a two-thirds vote of the members of the 
full committee in a proceeding before a committee. 



117 



Page 8 

Ten days' notice must be given to the Attorney 
General prior to seeking the order. The 
court must defer issuance up to 20 days at 
the Attorney General's request. However, 
Th e Atto r ney G enera l is not giv en vet o pov: er. 
H o'r i s_ th e court giv en any pov /ef to withh old 
the orde r if the factual prerequisTtes are met. " 
X'tin^ihasis added) 

The reason the Attorney General is given a right 
to ten days notice before the request for an immunity 
order is filed (and the right to a 20 day deferral 
after the request is made before the order is entered) 
is to provide the Attorney General with the opportunity 
to isolate any incrim.inating data already in his files 
and thus establish the independent source necessary 
for later criminal prosecution. See National Commission 
for the Ile^t-rm of Federal Criminal Laws, Working Papers 
at 1406. 

As the above legislative history m^akes clear, 
under the statute neither the Attorney General nor 
the Court has discretion to veto a decision of 
Congress (or a committee thereof) to grant immunity. 
If the court determines that the procedural prerequisites 
have been met ( e.g. , at least two-thirds of a Committee 
have voted for immunity and the required notice has 
been given), it must enter the order. It would have 
been particularly inappropriate to give the Attorney 
General power to veto a Congressional decision of 
immunity "because in a Teapot Dome-type Congressional 



118 

Page ^ 

investigation, the Attorney General himself would be 
the focus of the inquiry." See Commission Working 
Papers at lil-40. It also follows from the above that, 
where procedural regularity is present, a prospective 
witness cannot prevent the grant of immunity. In re 
McElrath, 248 F.2d 6l2, 617 (D.C. Cir. 1957) .( en banc ) 
(concurring opinion). ' .; 



Samuel Dash 
Chief Counsel 



June, 1973 



James Hamilton 
Assistant Chief Counsel 



V^ .-V i 



Ronald Rotunda 
Assistant Counsel 



119 



•* ,. 8AM J. EVrVlN, JR.. N.C.. CHMRMAN 

HOWARD H. BAKER, JR., TCNN.. VICE CHAIRMAN 
HERMAN E. TALMADGE. GA. EDWARD J. GURNET, FUA. 

DANIEL K. INOUYE. HAWAII UOWEU- P. WEICKER, JR., 

JOSEPH M. MONTOYA. N. MEX. 

SAMuei. DASH 

CHIEF COUNSEU AND STAFF OIRECTCHX 

FRCD O. THOMPSON 

MINORITY COUNSEL 

RUFUS L. EDMISTEN 

DEPUTY COUNSEL 



'SUCwHcb ^iaie& Senate 

SEUECT COMMITTEE ON 

PRESIDENTIAL. CAMPAIGN ACTIVITIES 

(pursuant to S. res. 6e. «D CONGRESS) 

WASHINGTON. O.C. 20510 



MEMORANDUM OF LAW 

Attorney-Client Privilege 

I, The Basic Rule 

Professor Wigmore summarizes the basic rule governing 

the application of the attorney-client privilege as follows: 

" (1) where legal advice of any kind is sought 
(2) from a professional legal adviser in his 
capacity as such, (3) the communications re- 
lating to that purpose, (4) made in confidence 
(5) by the client, (6) are at his instance 
permanently protected (7) from disclosure by 
himself or by the legal adviser, (8) except the 
protection be waived." 8 Wigmore, Evidence, i 2292, at 554 

(McNaughton rev. 1961) (footnote 
omitted; emphasis in original omitted) 

The attorney-client privilege is governed by statute 

in many states, but for the most part the statutes are 

merely declaratory of the common law rule summarized above. 

8 Wigmore, supra , § 2292 at 556-57. Certain features of the 

privilege that are or may be relevant to this committee's 

activities are discussed below. 



II. The Policy Reasons Behind the Attorney-Client Privilege 

Certain evidentiary rules, e.g. , the hearsay rule, 
exist in order to exclude from the jury evidence which 
the law considers untrustworthy. The attorney-client 
privilege, on the other hand, excludes perfectly competent, 
valid evidence because of a policy decision that the exclu- 
sion promotes another valid objective of law: 



120 



-2- 



"in order to promote freedom of consultation 
of legal advisors by clients, the apprehension 
of compelled disclosure by the legal advisors 
must be removed; hence the law must prohibit 
such disclosure except on the client's consent." 
8 Wigmore, supra § 2291 at 545. 

Because the exercise of this privilege conflicts with the 

search for truth, the commentators and the courts have 

long held that the privilege "ought to be strictly confined 

within the narrowest possible limits consistent with the 

logic of its principle." 8 Wigmore, supra § 2291 at 554. 

Wigmore ' s principle has long been recognized by the case 

law. E.g ., Foster v. Hall , 29 Mass. (12 Pick.) 89, 97 (1831): 

"The rule of Privilege, having a tendency to prevent the 

full disclosure of the truth, ought to be construed strictly." 

See also , McCormick, Evidence i § 72,77,86 (1972). 

III. Some Guidelines Governing the Scope of the Attorney- 
Client Privilege 

(A) The first requirement of the attorney-client 

privilege is that legal advice must be sought. See 

s 
generally , 8 Wigmore, supra , s 2296 at 566. Thus, communi- 
cations with an attorney seeking, e.g. , his business advice 
is not within the privilege. United States v. Vehicular 
Parking, Ltd. , 52 F.Supp. 751, 753-54 (D. Del. 1943). 
However, where the client generally seeks legal advice, 
the existence of nonlegal, incidental communications between 
them does not result in loss of the privilege. United 
States V. United Shoe Machinery Corp., 89 F. Supp. 357, 359 



121 



-3- 



(D. Mass. 1950) (Wyzanski, J), Accord , McCormick , supra , 
i 88, at 179-80. 

(B) A client may not claim the privilege if the 
communications was in furtherance of a criminal or 
fraudulent transaction. Wigmore states that the privi- 
lege does not attach where the advice is sought for a 
knowingly unlawful end? it is, however, not necessary, 
in order to determine that the privilege is invalid, to 
conclude that the attorney actually became a participant 
in the client's intended wrong. E.g . , A.B. Dick Co. v. 
Marr, 95 F.Supp. 83, 102 (S.D.N.Y. 1950) (Medina , J. ) ; In 
re Sawyer's Petition , 229 F2d 805,808-09 (7th Cir. 1956) 
(a client's communication to his attorney in pursuit of a 
criminal or fraudulent act yet to be performed is not 
privileged in any judicial proceeding) . 8 Wigmore, supra , 
i 2298, at 573, 577, Wigmore also declares that the 
intended, unlawful end, may be either a crime or any 
"deliberate plan to defy the law and oust another person 
of his rights, whatever the precise nature of those rights 
may be." ^d^, at 577. The traditional common law view, how- 
ever, requires that the communication be in furtherance of 
a crime or fraud before the privilege is ruled nonexistant. 
McCormick, supra , I 96 at 201. Rule 26 (2) of the Uniform 
Rules of Evidence appears to agree with Wigmore and would 



122 



-4- 



deny the privilege if the conununications were in furtherance 

of any crime or tort , but proposed Federal Rule 503 (d) (1), 

of the Proposed Rules of Evidence for the United States 

Federal District Courts, uses the "crime or fraud" language.* 

In order to determine if the legal advice was tainted 

and is thus not within the privilege the test is as follows: 

"Where there is some evidence of crime or fraud 
apart from the communications with the attorney, 
and there have been transactions with him, let 
the burden be on the attorney to satisfy the court 
(apart from the jury) that the transaction has to 
his best belief not been wrongful, before the 
claim of privilege is allowed ." Wigmore, supra, 
§ 2299, at 578 (emphasis in original) . 

See also . Pollock v. United States , 202 F.2d 281, 286 (5th 

Cir. 1953), cert, denied , 345 U.S. 993 (1953): 

"/f~w7here the party is being tried for a crime in 
furtherance of which the communication to the 
attorney was made and evidence has been introduced 
giving color to the charge, it is well settled that 
the communication is no longer privileged. /"citations 
omitted/. " 

In short, it is not necessary that the court make a finding 

that the client's purpose was in fact criminal: if there is 



* Proposed Rules of Evidence for the United States Federal 
District Courts were promulgated on November 20, 1972 by 
the Supreme Court. They have not yet been enacted. A copy 
of proposed Rule 503 is attached to this Memorandum. The 
Advisory Committee's Note to Proposed Rule 503 may be found 
at 56 F.R.D. 235-40." 



123 



-5- 
some evidence giving color to the charge, the privilege must 
yield. In determining whether the client had an unlawful 
purpose in consulting with an attorney, it is the client's 
guilty intention which is controlling; the good faith or 
lack thereof of the attorney is irrelevant. McCormick, 
supra , I 95, at 200. Evidence of the client's wrongful 
intent may be circumstantial. Id^. at n. 51, citing 
Sawyer v. Stanley , 241 Ala. 39, 1 So. 2d 21 (1941). 

(C) If a client tells the attorney about the contents 
of a preexisting document, the attorney may not ordinarily 
be forced to testify about such conversations, even though 
the client may be compelled to testify as to the contents 
of documents as well as required to produce them. Wigmore, 
supra , § 2308. However, if the communications were part 
of an attempt by the client to avoid production of the document's 
contents, the privilege does not apply. Id^. at 596, It 
is also generally true that information regarding the exis- 
tence, execution or place of custody of a document is 
ordinarily not within the privilege. Wigmore, supra , i 2309. 

Communications about documents should be distinguished 
from the documents themselves. A document never acquires 
any privileged character by virtue of being passed from a 
client to his attorney, and thus client documents in the 
possession of an attorney are subject to subpoena. Falsone 



124 



-6- 



V. United states , 205 F.2d 734, 739 (5th Cir. 1953); 
Mccormick, supra , § 89, at 185. 

(D) The purpose of the attorney-client privilege is 
to protect confidential communications. Communications 
to a lawyer not intended to be confidential are not pro- 
tected. E.g . , United States v. Tellier , 255 F.2d 441 (2d 
Cir. 1958) r see generally , 8 Wigmore, supra , § 2311, at 
600. Thus, communications to an attorney in the presence 
of a third person who is not the agent of either the 
attorney or client are not privileged. 8 Wigmore, supra , 
at 601-02. If the client intends that the lawyer reveal 
the conversations to third persons there is no privilege. 
E.g ., united States v. Tellier , 255 F.2d 441 (2d Cir. 1958) 
(Attorney's advice to client not privileged where client 
expected attorney to prepare letter to third person setting 
forth client's position). Wilcox v. United States, 231 E2d 

384 (10th Cir. 1956) cert, denied , 351 U.S. 943 (1956) (client's 

private instructions to attorney that at preliminary hearing 

he should propound certain questions to witnesses not privileged) 

(E) If two (or more) clients retain the same attorney 
and then have an altercation, there is, in a subsequent 
controversy between the two clients, no attorney-client 
privilege regarding conversations by either to the joint 
attorney. 8 Wigmore, supra , § 2312 at 604. And, in any 
dispute between a lawyer and his former client ( e.g . , a 
suit for fees), the previous communications between the 



125 



-7- 

lawyer and client are not privileged, ^d^.at 607-08. An 

attorney must be able to protect himself against charges 

by his former client, who may not shield himself by use of 

the privilege. When the client and attorney become embroiled 

in a controversy, "the seal is removed from the attorney's 

lips." Mccormick, supra , § 91 at 191. See also A.B.A. 

Code of Professional Responsibility, D.R. Rule 4-101 (c). 

"A lawyer may reveal... (3) Confidences or secrets 
necessary... to defend himself .. .against an accusa- 
tion of wrongful conduct." 

(F) If the client, by mistake or otherwise, discloses 

the substance of his confidential conversations to outsiders, 

his privilege as to those conversations is lost for all 

time. E.g . , Connecticut Mutual Life Ins. Co. v. Shields , 

18 F.R.D. 448, 451 (S.D.N.Y. 1955). 

"Once there has been disclosure to an outsider, by 
the client or by the attorney with the client's 
authority, of the confidential communication it 
is no longer privileged." 

s 
See also , McCormick, supra , s 93, at 197. Even if the 

outsider learns of the conversations because there were 

insufficient precautions to preserve secrecy, the privilege 

is still lost. 8 Wigmore, § 2326 at 633. Moreover, under 

traditional principles, if the attorney loses written confidential 

communications or they are stolen from his office, the privilege 

is nonetheless extinguished as to their contents since the 

confidentiality has been lost, albeit involuntarily. See also , 

Mccormick, supra , I 75 n. 19. However, Proposed Federal Rule 

503 would prohibit loss or theft from destroying the privilege. 



126 



-8- 



See Advisory Committee's Note, 56 F.R.D. at 238. 

(G) The Attorney-Client privilege may not be used to 

keep secret the identity of a client: 

"The weight of authority denies the privilege 
for the fact of consultation or employment, 
including the component facts of the identity 
of the client, such identifying facts about 
him as hisaddress, and occupation, the identity of 
the lawyer, and the scope or object of the 
employment." Mccormick, supra , § 90, at 185-86 
(footnote omitted). 

(H) The client may voluntarily waive the attorney- 
client privilege. If he does so, the attorney must testify 
since the privilege belongs only to the client, not to the 
attorney. See 8 Wigmore, s 2327. A client may also be 
found to have waived the privilege if he makes a partial 
disclosure. Having revealed a portion of his communications, 
he may not withhold the remainder, 8 Wigmore, supra , § 2327, 
at 636; McCormick, supra , I 93. 

(I) Under traditional common law, the attorney-client 
privilege protects the relationship between a lawyer and his 
private client and does not extend to communications to an 
attorney representing the Government or Governmental officials 
regarding their official duties. McCormick, supra , § 88, at 181, 
There are several reasons for limiting the privilege to the 
private client and his private lawyer. In the Government there 
is not so much an attorney-client relationship as an employee- 
employer relationship, which serves to provide the necessary 



127 



-9- 



degree of confidentiality for the employer. More importantly, 
the employer is not the actual client of the Government lawyer. 
It is the people who not only pay the Government lawyer's 
salary but who are supposed to be the beneficiaries of his 
legal work and his true client. Thus, the Government lawyer 
unlike a private one, may take an oath to uphold the Constitution 
and laws thereunder. The Code of Professional Responsibility 
also applies differently to a Government lawyer, for his 
duty is to the public at large and not to a narrow client 
interest- See , e.g . , A.B.A, Code of Professional Responsibility, 
D.R, Rule 7-103. Finally, in the executive branch of Government, 
any necessary confidentiality is provided by Executive Privilege. 
When that privilege is waived, the only privilege of confid- 
entiality that the Executive has is waived. However, some 
recent cases have extended the privilege to cover lawyers 
for a government. E.g. , Connecticut Mutual Life Ins. Co. v. 
Shields , 18 F.R.D. 448, 450-51 (S.D.N.Y. 1955) (without stating 
its reasons, the court states that lawyers for the Bellevue 
Bridge Commission are covered by the privilege insofar as the 
Commissioners' communications were only with their lawyers). 
Proposed Federal Rule 503 (a) (1), if enacted would change the 
traditional law and apply the privilege to attorneys for 
governmental bodies. See 56 F.R.D. at 237. 

(J) The attorney-client privilege is generally considered 
to apply to corporations and unincorporated associations. 



128 



-10- 



E.g . , Radiant Burners, Inc. v. American Gas Association , 320 
F.2d 314 (7th Cir, 1963), cert , denied , 375 U.S. 921, 
However, not every employee of a corporation speaks for it 
for purposes of the privilege. It is the general rule that 
when the client is a corporation only members of the "control 
group" of the corporation are clients for purposes of the 
privilege. The "control groups" are those who are authorized 
to seek, and act upon, legal advice for the corporation. See 
City of Philadelphia v. Westinghouse Electric Corp. , 210 F. 
Supp. 483 (E.D. Pa. 1962). Lower-level employees are not 
"clients;" they fall in the category of witnesses, and 
information communicated by them to an attorney is not privi- 
leged. See generally , D.I. Chadbourne, Inc. v. Superior Court , 
36 Cal. Reptr. 468, 60 Cal. 2d 723, 388 P. 2d 700 (1969) 
(statement of corporate employee delivered to corporation's 
insurance carrier is not privileged). 

(K) In any dispute before the Select Committee as to the 
applicability of the Attorney-Client privilege, the Chair will 
have to make a ruling. If the Chair rules that the privilege 
does not apply, the attorney-witness must then answer, even 
if his client maintains his objections: 

"It seems clear that, unless in a case of flagrant 
disregard of the law by the judge, the lawyer's duty 
is merely to present his view that the testimony is 
privileged; and if the judge rules otherwise, to submit 
to his decision," McCormick, I 92, at 193-94 (footnote 
omitted) . 

See 8 Wigmore i 2321 at 630; see also A.B.A. Code of Profess- 
ional Responsibility, D.R. Rule 4-101 (c): 

"A lawyer may . reveal. . . (2) Confidences or secrets 



129 



■ 11- 



when... required by law or court order." 

It would be unfair to require the lawyer to risk contempt 
for his client. 




-^Samuel Dash 
Chief Counsel 






--^ ^'^ V' - - ^7-?v4-4t7tA:^ V- 



e<- 



James Hamilton 
Assistant Chief Counsel 



June, 1973 



Ronald D. Rotunda 
Assistant Counsel 



34-966 O - 74 - pt. 1 - 10 



130 



Huie 503. Lauycr-Cllcnt Privilcye 

(c) Definitions. — As used in tliis rule: 

(1) A "client" is a ])er5on. i)iiblic ofllcer. or corpora- 
tion, association, or other ortranizntion or entity, cither 
public or private, who is rendered professional legal serv- 
ices by a lawyer, or who consults a lawyer with a view to 
obtaining professional le.iral services from him. 

(2) A "lawyer" is a i)erson authorized, or reason- 
ably believed by the client to l^e authorized, to practice 
law in any state or nation. 

(3) A "representative of the; lawyer" is one cm- 
ployed to assist tlic lawyer in the rendition of professional 
legal services. 

(4) A connnunication is "confidential" if not in- 
tended to be disclosed to third i)ersons other tlian those 
to whom disclosure is in furtherance of the rendition of 
jM'ofessional Icizal services to the client or those rcason- 
nbly necessary for the transmission of the connnunication. 

(6) General rule of ])rivile(/c. — A client has a privilege 
to refuse to disclo.-e and to jirevent any other ])erson 
from disclo^inj: confidential commuiiications made for the 
purpose of facilitating tlie rendition of profession.al legal 
services to the client. (1) between himself or his repre- 
sentative and his lawyer or his lawyer's reiiresentative. 
or (2) between his lawyer and the lawyers rejucsentativc. 
or (3) !)y him or his lawyer to a lawyer representing 



131 



RULES OF i:vii)Exci: • 11 

anollKT in a nuitlcr of coininoii interest, or (i) between 
rei)resentatives of the client or between the client and a 
representative of the client, or (5) between lawyers rep- 
resenting tlie client. 

(c) )yiio may clniin the privilege. — The j)rivilege may 
be claimed by the client, his guardian or conservator, the 
l)ersonal repre>'entalive of a deceased client, or the siic- 
ccsssor, trustee, or similarrepresentative of a corporation, 
association, or other organization, whether or not in 
existence. The ])erson who was the lawyer at the time 
of, the conununication may claim the privilege but only 
on behalf of the client. His authority to do so is pre- 
sumed in the absence of evidence to the contrary. 
{d) Exceptions. — Thei-e is'no i)rivilegc muler this rule: 

(/) Furtherance of crime or jraud. — If the services 
of the lawyer were souglit or obtained to enable or aid 
anyone to commit or ]ilan to commit what the client 
knew or reasonably should have known to be a crime or 
fraud; or _ ^ 

{2) Claimants through same deceased client. — As ta 
a communication relevant to an issue between parties 
who claim through the same deceased client, regardless 
of Avhether the claims are by testate or intestate succes- 
sion or by inter vivos transaction; or 

(.5) Breach of duty by lawyer or client. — As to a 
communication relevant to an issue of breach of duty by 
the lawA'cr to liis client or bv the client to his la'i\'\'er; or 

(/f) Document attested by lawyer. — As to a com- 
munication relevant to an issue conccrnini!: an attested 
document to which the lawyer is an attesting witness; 
or 

(o) Joint clients. — As to a conununication relevant 
to a matter of common interest between two or more 
clients if the communication was marie bv anv of them 
to a lawyer rctaineil or consulted in conunou. when 
offered in an action between anj' of the clients. • 



132 



- ' -:^^mnWO H. aAKER, JK.. TENN., VICE CHAIRMAN 
MKMMM mi TAt_MAOOE. OA. EDWARD J. OUNNEY. FLA. 

OANIIOJK. INOUYC, HAWAII |jOWCl-L P. WUCK^R, JR., COtOi. 

jOmEfHj*^ MOMTOVA, N. MEX. 

c^o««.sr^''".':ro,«co^ UlCwicb ^{aic« ^cnaie 

■' FREZ> D. THOMPSON ^^^ 

MlHOR.TYCOur.SEl. _ . - '"^ SELECT COMMITTEE ON 

HUFUS L. EOMISTEN PRESIDENTIAL CAMPAIGN ACTIVITIES 

OEFUrY COUNSEL (pURSUAfn* TO S. RES. W. MO CONGRESS) 

,-'■? Washington, D.C. 20510 



PRELIMINARY 
MEMORANDUM TO SELECT COMMITTEE 

RE CONGRESSIONAL POWER TO SUBPOENA DOCUMENTS IN WHITE 

HOUSE CUSTODY 

President Nixon, in his letter of July 6, 1973 (attached) 
has refused to permit The Select Committee access to papers 
prepared or received by his personal staff, which papers he 
has termed "Presidential papers." Though he has declined to 
use the term, he is, in fact, asserting the doctrine of 
executive privilege as to all "the private papers of his 
office, prepared by his personal staff" in order, it is 

said, that his personal staff may "communicate among them- 

1 
selves in complete candor." 

There is substantial debate among legal scholars as to 

whether executive privilege has any legal existence. Professor 

Raoul Berger had contended quite forcefully that there is 

no such concept. See generally , Berger, Executive Privilege 



1. Perhaps because he has already waived executive privilege 
as to testimony of his staff, the President ostensibly 
bases his refusal to produce Presidential papers On the 
doctrine of separation of powers, but his arguments sound 
in executive privilege terms. 



133 



1 

V. Congressional Inquiry , 12 U.C.L.A.L.Rev. 1044 (1965). 
Other authorities, however, contend that some sort of ex- 
ecutive privilege should be recognized. See Kramer & Marcuse, 
Executive Privilege — A Study of the Period 1953-1960 , 29 
Geo. Washington L. Rev, 623, 827 (1961). No federal court has 

ever been directly presented with the proposition of law 

2 
advocated by Mr. Nixon, and consequently there is no legal 

precedent in his favor. However, it is not necessary to 

settle the debate as to whether executive privilege actually 

exists for it appears that in no event would it be applicable 

in the instant case. 

First, it is reasonable to conclude that the privilege 

has been waived: presidential aides and former aides have 

been allowed to testify in full regarding the Watergate 

affair without any assertion of the privilege; presidential 

documents in the possession of witnesses have been submitted 



1. See further, 93 Cong. Rec. 40-41 (1930) (Remarks of Senator, 
later Justice, Black) ; 3 Hinds' Precedents of the House of 
Representatives at 185, quoting House Report No. 271(1844): 

"Thus it appears that there exists no rule which would 
exclude any evidence from the House or a Committee of the 
House, which are as competent to guard the interests of the 
State, and have as high motives for doing so as the Execu- 
tive can have." 

2. It is worth noting, that a like ' issue has been decided 
by at least one state court. Opinion of the Justices , 328 Mass. 
655,660-61, 102 N.E. 2d 79, 85(1951): 

"The attempt of the Senate to secure such information as 
might be contained in the report was not an interference 
with the executive department of the government in viola- 
tion of art. 30 of the Declaration of Rights, relating to 
separation of powers . . . 

... It was a permissible exercise of an attribute pertaining 
to legislative power." (emphasis added.) 



134 



to the Select Coiranittee without any claim to privilege. Mr. 

Nixon has "opened the door" to evidence and it is now difficult 

for him to argue that presidential documents regarding Water- 

1 
gate may be withheld. 

In this regard, it is worth noting that the distinction 
between testimonial and documentary evidence which the letter 
of July 6, 1973, attempts to draw is unpersuasive. The letter 
(at p. 2) contends that testimonial evidence "can, at least, 
be limited to matter within the scope of the investigation." 
(However, the President recognizes that the oral testimony will 
be,- in fact, "unrestricted.") But the letter fails to recog- 
nize that documentary evidence can also be restricted. Any 



I. See Kramer & Marcuse, Executive Privilege — A Study of the 
Period 1953-1960 , 29 Geo. Washington L. Rev. 827, 901 (1961), 
noting that at the time of the Army-McCarthy hearings it was 
felt that certain information would have been privileged "had 
not the Administration opened the door by volunteering infor- 
mation about it." The waiver principle is well-recognized in 
the law. See Tigar, Foreward; Waiver of Constitutional Rights ; 
Disquiet in the Citadel , 84 Harv. L. Rev. 1 (1970): 

"Voluntary disclosure of any such fact (which may in 
any degree form a link in a chain of evidence against 
the witness) evinces, the argument runs, an intention 
not to rely upon the privilege, at least not in that 
forum, and not with respect to the entire subject 
matter to which the initial disclosure relates. The 
same general rule is followed with respect to all testi- 
monial privileges, constitutionally -based or not , in- 
cluding the lawyer-client, clergy man-penitent, and doctor- 
patient privileges." Id. at 9-10 (citing Preliminary 
Draft cf Proposed Rules of Evidence for the U.S. Dis- 
trict Courts) (emphasis added). 



135 



4 



Select Committee subpoena can be carefully drawn so that it 
is, in the letters terms, "limited to matters within the 
scope of the investigation." If a particular document covers 
matters both within and outside of the investigation, the 
irrelevant parts can be excised. There is, in short, no 
reason to draw a distinction between documentary and testi- 
monial evidence and waiver of rights as to the former 

1 
should also result in waiver as to the latter. 

The second reason that executive privilege is inapplicable 
in the present circumstances is that the doctrine may not be 
used as a device to conceal information relating to the- 
commission of a crime. Serious charges of criminal mis- 
conduct at the highest level of government have been made 
before the Select Committee. Certain files presently in the 
custody of the White House may support or rebut the charges. 
Such highly relevant information may not be shielded from the 
public on grounds of executive privilege. 

President Nixon's prior statements on the privilege 
appear to support this conclusion. In his Guidelines of 
May 3, 1973, he defined Presidential papers as "all documents 
produced or received by the President or any member of the 
White House staff in connection with his official duties." 



1. Moreover, as noted, some Presidential documents regardinc 
Watergate have been received without Presidential objection. 



136 



(emphasis added). But no document produced or received 

in furtherance of a crime may be justifiably considered 

one resulting from an exercise of an official duty. See 

also the Presidential Press Release of May 22, 1973, at 8: 

"Executive Privilege will not be invoked as to any 
testimony concerning possible criminal conduct or 
discussion of possible criminal conduct in the 
matters presently under investigation, including 
the Watergate affair and the alleged cover-up." 

The case law supports the use of a subpoena to 

the President to achieve relevant information regarding 

the commission of crimes. Chief Justice Marshall, in 

United States v. Burr , 25 Fed. Cas. at 187 (No. 14964) 

(C.C. Va. 1807), with respect to relevant evidentiary doc- 

uments in the custody of the President, stated: 

"That the President of the United States may be 
subpoenaed, and examined as a witness, and re- 
quired to produce any paper in his possession, 
in not controverted." 

Though the Burr case is an old one, it is still good 

law as evidenced by the Supreme Court's favorable citation 

in Branzburg v. Hayes , 408 U.S. 665, 689 n. 26 (1972). The 



The "precedents" cited by Mr. Nixon are not sufficiently 
delineated to allow comment on each, but we know of no 
Incident where a President, faced with ^^^"Pf ^^"^^^^^^^"0^ 
that crimes have been committed, has invoked f J /"^^^^^^^ 
to withhold documents that might bear on these or other 
criminal violations. See generally Berger Executive 
privilege v^ongressional inquiry , 12 U.C.L.A. L.Rev. 

(1965). . 



137 



Court also quoted with approval Jeremy Benthan's observation! 

"Were the Prince of Wales, The Archbishop of Canterbury, 
and the Lord High Chancellor, to be passing by in the 
same coach, while a chimney-sweeper and a barrow-woman 
were in dispute about a halfpenny worth of apples, and 
the chimney-sweeper or the barrow-woman were to think 
it proper to call upon them for their evidence, could 
they refuse it? No, most certainly." 4 08 U.S. at 689 
n. 26. 




"Samuel Dash 
Chief Counsel 





James Hamilton 
Assistant Chief Counsel 



July 10, 1973 



Ronald D. Rotunda 
Assistant Counsel 



138 



jS? 



THE WHITE HOUSE 
WASHINGTON 



hf"^-.'" * The Western White House 



V. ■"■■ • 



SeUi Clemente 

Jidy 6, 1973 



Dear Mr. Chairman: 



;1I am advised that meinbers of the Senate Select Committee 
i^lJiave raised the desirability of my testifying before the 
" ^, C6ipmittee. I am further advised that the Committee has > 
■ ■,'' re<lue sted access to Presidential papers prepared or , '■ 

'received by former nnennbers of my staff. - 

.,"*im this letter I shall state the reasons why I shall not testify]. 
^ Jjefore the- Committee or permit access to Presidential | 

•^>apers. ; ;;• • ' ■.,:||; 

'I yrant to strongly emphasize that my decision, in both cases, 
v;^ is based on my Constitutional obligation to preserve intact 
; the powers and prerogatives of the Presidency and not upon - 
y any desire to withhold information relevant to your inquiry^- ' 

^^M-v-^ , , , ■ ■•■■ g 

4;- My staff is under instructions to co-operate fully with yours: 
? : in furnishing information pertinent to your inquiry. On i'^^f^ 
'>22 May 1973, I directed that the right of executive privilege,;;! 
r '^ "as to any testimony concerning possible criminal conduct Vv 
4fOX disdussiotis of possible criminal conduct, in the matters^* 
C'f presently under investigation, " no longer be invoked for 
.jl present or former members of the White House staff. In - ^>' 
* • tlie case of my former Counsel, I waived in addition the "^iy 
•^ attorney-client privilege. M 

•vV;- i; . _ ; - . ■ ■';;> 

. .These acts of cooperation with the Committee have been ' J 

Mj- genuine, extensive and, in the history of such matters, ■% 

^v;^ extraordinary. . K 



139 



- 2 



The pending requests, however, would move us from proper i- 
Presidential cooperation with a Senate Committee to jeopardizing 
the {imdamental Constitutional role of the Presidency, 



This I must and shall resist. 






» * 



No President could function if the private papers of his office, '' 

prepared by his personal staff, were open to public scrutiny. 

Formulation of soimd public policy requires that the President 
] and his personal staff be able to commimicate among themselves 

in complete candor, and that their tentative judgnaents, their 
'^^exploration of alternatives, and their frank comments on issues 

and personalities at home and abroad remain confidential. I 

recognize that in your investigation as in others of previous 

, years, arguments can be and have been made for the identification 

t^;and perusal by the President or his Counsel of selected docximents 

vfor possible release to the Committees or their staffs. But -! 

■ such a cou'rse, I have concluded, wo vild inevitably result in ^^ 

the attrition,, and the eventual destruction, of the indispensable 
.principle of cnnfiHpriiH ^lil-^ r nf Pr psidential p apo^-o^ ^ ^ ^ 

J ■ ?*! ■ ..■''<: .-,4, ■"■L/- 

The question of testimony by members of the White House i,/>tf: <? 

staff presents a difficult but different problem. While notes r^:^ ' . 
' and papers often involve a wide-ranging variety and inter- 

zningling of confidential matters, testimony can, at least, be 

lizxiited to matters within the scope of the investigation. For *^ 
J this reason, and because of the special nature of this particular ;*?, 
'investigation, I have agreed to permit the lui restrict pi tf^^tlmnTty^' 

of present and former White House staff naembers before your 8 

Committee. •, 

The question of my own testimony, however, is cinother matter. 
I have concluded that if I were to testify before the Comnnittee 
irreparable dannage would be done to the Constitutional principle 
' of separation of powers. My position in this regard is supported 
by ample precedents with which you are familiar and which need 



~t :.^''m 






140 



- 3 - 



_^ not be recited here. It is appropriate, however, to refer 
. to one particular occasion on which this issue was raised. \ 

t In 1953 a Committee of the House of Representatives sought 
.^j' to ' subpoena former President Truman to inquire about 

■ matters of which he had personal knowledge while he had 
.served as President. As you may recall. President Truman 
V' declined to comply with the subpoena on the ground that the 
.'.' separation of powers forbade his appearance. This position 
y:^.waa not challenged by the Congress. 

^; It is difficult to improve upon President Truman's discussion 
f;; of this matter. Therefore, I request that his letter, which is 
"•V enclosed for the Committee's convenience, be nnade part of 
the Cominittee ' s record. 

^j'r The Constitutional doctrine of separation of powers is 

fundamental to our structure of government. In nay view, as 
in the view of previous Presidents, its preservation is vital. 
In this respect, the duty of every President to protect and 
defend the Constitutional rights and powers of his Office is 
-V an obligation that runs directly to the people of this country. 

>.Th[e W House staff will continue to cooperate fully with . 

iidhe Committee in furnishing information relevant to its ^ -| iV 

t ittvestigation except in those instances where I determine i^; 

;?■ that ineeting the Committee's demands would violate my 1r* 

^Constitutional responsibility to defend the office of the %^l^ 

■' Presidency against encroachment by other Branches. -" ^fii^ 

' . • • ' -■ -^ . \.:-:-iv 

if;i(-V' ..-■ . ^ . ' ., " ''''^'!'^- 

5 At 3nappropri2d;e time during your hearings, I intend to v \jy ,^-5. 
ij^address piiblicly the subjects you are considering. In ihe'''Q^:}-^-:^ 
lineantime, in the context of Senate Resolution 60, I consider i^-i.. 
^fit my Constitutional responsibility to decline to appear personally 
'under any circumstances before your Committee orto grant ^_^\/'i;{ 
I ascess to Preside ntial Jil&A.- -- v:^i:^>"-" <^ 

¥-^'^ ■'•• ■ , , , • - .;v:^^%.jif ^';?^ 

*^ I respect the responsibilities placed upon you and yonv -X.^ x:;^fr>^^ 

f colleagues by Senate Resolution 60. I believe you and ^ \^^^f:i;Vic; 
■■.•'Ti'<-*' ' • ■ ■ ■ ' •^' ''^<^^;^i 






,.*- 



141 



0^W- 4 ■ 

'■^. J •.'■■' ^ *"•<-■■ ■ 

'your Committee colleagues equally respect the responsibility 
-placed upon me to protect the rights and powers of the 
I' Presidency under the Constitution. 

'vl^^^, 'V-' Sincerely, 

,;-Av>. .■■■'", ■ ' ■ ' ■ -i 

- i **r 

^'V^Konorable Sam J. Ervin, Jr. 
5-; Chairman . 

^ Select Committee on Presidential 

i ).3 Campaign Acti vitie s 
|t United States Senate 
;|^ashington, D. C. 20510 

/■Enclosure- 

^5! ; :'■: :,:■."'■ 

;* per Honorable Howard H, Baker 



142 



■<-/ 



November 12, 1953 V^^;!|^%' 

,.:. S,- -I'Vfr-a/..- 

'■K'i^ TRUMAN LETTER . -"i-^^j^wll 

-■ ', . ' ■.■'.• 'jr* .:•'. 

. -Dear Sir: "'•'^M*:'!ib^'^r? 

- • -.l'- ' . . ■ •• •■ j;-.A"i'/ 

I have your subpoena dated November 9, 1953, directing my . ->..«', 4 
appearance before your committee on Friday, November 13, in "" )i 

Washington. The subpoena does not state the matters upon which yoU i. V 
seek my testimony, but I assume from the press stories that you seel^ \j • 
to examine me with respect to matters which occurred during my 
.*• tenure of the Presidency of the United States. ; 

i?'-r. ' ' '■ ■ - ■^:. •- ''' 

■y ■■" -* ■•■ ■' ■ ■' ^ : *^" 

■■- ■■ .tf- *■■ •■*. .'ly •-►•..'•,;*•• .,■ 

Vyl;--. >■ In spite of my personal willingness to cooperate with your f ''';V;':V,^;. 

conrirnittee, I feel constrained by my duty to the people of the Unite'^d '^'/' '■ 

States to decline to comply with the subpoena. . „, 

..r,» ^,, .. ^ ' ' _ ..r^r'-'.'.'^ 

-;^^'.*..^^ 'In doing so, I arri carrying out the provisions of the Constitu^bn; . , " 

■ of the United States; and am following a long line of precedents, corhzxiencing ' 

• with George Washington hinnself in 1796. Since his day. Presidents' Jefferson, 
■i; Monroe, Jackson, Tyler, Polk, Fillmore, Buchanan, Lincoln, Grant, Hayes,; 
' Cleveland, Theodore Roosevelt, Coolidge, Hoover and Franklin D. Roosevelt 

', have declined to respond to subpoenas or demands for information of various 

• kinds by Congress. '• - 7',' l^:'^' ' ^"^ 



1 I.- 



= *'(,{„ The underlying reason for this clearly established and univerBally , -' 

'■:w -^recognized constitutional doctrine has been succinctly set forth by •;% -^^Jj^it-^l^A^ 
" rCharles Warren, one of our leading constitutional authorities, ^^y\\:^Y:^::i^.^-^ 
^"""follows:-: -.^.^-^^f^M^ 

i^y5< "In this long series of contests by the Executive to maintain ;,'^^t;■' 

/vhiB constitutional integrity, one sees a legitimate conclusion from rf ;■ ' 

-i -our theory of government. **';-Under our Constitution, each branch :.r>. ;:..>■ 
'•of the. Government is designed to be a coordinate representative of ,; ) 5';^ '^iV' 

, the will of the people. **':=Defense by the Executive of his constir- »-),v |j>;^,^|l 
f'/'tutional powers becomes in very truth, therefore, defense of popular^ <^,'.:^_ ,- 

' rights--defense of power which the people granted to him. V</.Hl'^' .' 

• ,.'■■ • ■ -' ■•■^,v'^»:'f'-:^ 

'' ^ • "It was in that sense that President Cleveland spoke of his • ' J;:,H:v' 

\^duty to the people not to relinquish any of the powers of his great ;;.;:^5V^,v^M'^ 



143 



'^'""l&'^i 



iJ'TRUMAN LETTER -2- y^'0'^]^Q- 

r' ... •■.^i^?:^^.^:^^ 

ofdyCe. It was in that sense that President Buchanan stated the people '?:\ 
:■: have rights and prerogatives in the execution of his office by the ; .;; .^4j^. 
President which every President is under a duty to see 'shall nevei" '^*'? 
be violated in his person' but 'passed to his successors uninnpaired fcy/f* 
the adoption of a dangerous precedent. ' In maintaining his rights , '"^ I 
against a trespassing Congress, the President defends not himself, , > %'. 
•but popular government; he represents not himself but the people.'^ •''. 

)■■■•;, ' • '■■ ''*','♦ 5 

; President Jackson repelled an attempt by the Congress to , . ,; : 
,breakdpvtai the separation of powers in these words: ■• v '"* 

"For myself I shall repel all such attempts as an invasion of ;> ^' 
the principles of justice as well as the Constitution, and I shall '■*■ 

(esteem it my, sacred duty to the people of the United States to resist 
therd as I would the establishment of a Spanish Inquisition. " 



, . imight connmend to your reading the opinion of one of the 

^.'/Committees of the House of Representatives in 1879, House Report 
|':.^41March 3, 1879, Forty-fifth Congress, Third Session, in which ■ 
^:'.- the House'J-udiciary Committee said the following: 



■■■■ , i ■ 



\ J- '• "The Executive is an independent of either house of Congress .'■\, 

as eithei; house of Congress is independent of him, and they cannot . *. ;^. 

; r call for the records of his actions, or the action of his officers against • t^ 

V his c<Misent, any more than he can call for any of the journals or records v 

of the House or Senate* " . ^ ' • V 



/,...■ ■'.:■■"'■: ^:''''' 

^ - It niust be obvious to you that if the doctrine of separation of rj 

•powers and the independence of the Presidency is to have any validity 
at all, it must be equally applicable to a President after his term of 
office has expired when he is sought to be examined with respect to 

.any acts occjirring while he is President. • } 



,■"!:■ 
If. 



5.-,;^ 

>>-;j- 



The doctrine would be shattered, and the President, contrary' 
tb our fundamental theory of constitutional government, would become 
i^^ a naere arm of the Legislative Branch of the Governnnent if he would ' 
,^' feel during his term of office that his every act might be subject to 
' official inquiry and possible distortion for political purposes. 



144 



TRUMAN LETTER -3- V:> ■«: 



If your intention, however, is to inquire into any acts as A f '*•''■■ 
private individual either before or after my Presidency and unrelated to 
any acts as President, I shall be happy to appear. 

Yours Very Truly, ' 






HARRY S. TRUMAN 



Honorable Harold H. Velde 

Chairnnan 

Committee on Un-American Activities 

House of Representatives 

Washington, D. C. 



145 



SAM J. ERVIN, JR.. N.C.. CHAIRMAN 
HOWARD H. BAKER. JR.. TENN. VICE CHAIRMAN 
HERMAN E. TALMACGE. GA, EDWARD J. GURNEV, FLA, 

DANIEL K. INOOYE. HAWAII LOWELL P. WEICKER. JR., CONN. 

JOSEPH M. MONTOYA, N. MEX. 

SAMUEL DASH 

CHIEF COUNSEL AND STAFF DIRECTOR 

FHEO D. THOMPSON 

MINORITY COUNSEL 

RUFUS L. EDMI5TEN 

DEPUTY COUNSEL 



H}tnileb ^Ictleis ^enale 

SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 

(pursuant to S. res. 80. »3D CONGRESS) 

Washington. D.C. 20510 



Memorandum of Law 



The Hatch Act 



Table of Contents 



I. Legislative History 

II. Section 9(a) 

III. Sections 2,3, and 4 

IV. Constitutionality 



1 
9 

14 
16 



34-966 O - 74 - pt. 1 - 11 



146 



The Hatch Act governs a wide range of political behavior 
on the part of certain federal, state and local government employeea 
The purpose of this memorandum is to review certain provisions of 
the Act which are relevant to Presidential elections. The discus- 
sion is divided into four parts. Part I summarizes the legislative 
history of the Act and its amendments. 

Part II deals with section 9 (a) of the Act which prohibits 
certain federal employees from taking an active part in political 
management or in political campaigns. 

Part III covers section 2 of the Act dealing with interfer- 
ence with federal elections by administrative employees of federal, 
state, or territorial governments; section 3 dealing with the 
promise of employment or other benefits for political activity; and 
section 4 dealing with the deprivation of employment or other 
benefits for political activity. 

Part rv is a discussion of the constitutionality of the 
Hatch Act with particular emphasis on the recent Supreme Court 
decision in United States Civil Service Commission v. National 
Association of Letter Carriers, 

I. Legislative History 

Thomas Jefferson first imposed restrictions upon the political 
activity of federal officials in 1801, and although subsequent 
Presidents issued executive orders restricting political activity of 



147 



-2- 



various federal employees, it was not until 1907 that President 
Theodore Roosevelt extended such restrictions to employees in the 
competitive classified service. Roosevelt's executive order did 
not specifically enumerate the acts prohibited, but since it per- 
mitted an employee to express his political views only in private, 
it was more severe than the provisions now contained in the Hatch 
Act. The executive order later became Civil Service Rule I, a 
provision which was the subject of some 3,000 adjudications by the 
Civil Service Commission before enactment of the Hatch Act in 1939. 
The Civil Service rule dealt with the political activity of civil 
servants as follows; 

Rule I. No person in the executive civil service 
shall use his official authority or influence for 
the purpose of interfering with an election or 
affecting the results thereof. Persons who by the 
provisions of these rules are in the competition 
classified service, while retaining the right to 
vote as they please and express privately their 
opinions on political subjects shall take no 
active part in political management or in political 
campaigns. (emphasis added) 

The political activity of government employees again came under 
scrutiny in 1936 when Congress faced criticism that politics was 
influencing administration of the Emergency Relief Appropriation 
Act of 1936. The administrator of the Works Progress Administra- 
tion (WPA) responded to the criticism by issuing a directive to 
WPA state administrators that candidates for or holders of elective 
office should not be employed on administrative staffs of the WPA. 



148 



-3- 



To further implement the administrator's policy. Senator Bilbo 
introduced an amendment to H.R. 12624 which adopted the substance 
of the directive. The amendment passed and was incorporated into 
subsequent Emergency Relief Appropriation Acts. 

In 193 7, Senator Carl Hatch proposed an amendment to the 
Works Progress Administration (WPA) appropriations bill which would 
have prohibited federal employees in administrative positions from 
using their influence to interfere with conventions, primaries or 
other elections. The amendment also provided that "any such person 
shall retain the right to vote as he pleases and to express his 
opinions on all political subjects, but shall take no active part 
in political management or political campaigns." The amendment was 
an attempt to apply to holders of administrative positions in the 
WPA the same restrictions imposed on civil service employees under 
Civil Service Rule I. Although the wording used in the amendment 
later became section 9 of the Hatch Act, the amendment was defeated 
in the Senate on June 2, 1938. Approximately two weeks later on 
June 16, 1938, the Senate adopted S. Res. 290 which directed the 
Special Committee to Investigate Senatorial Campaign Expenditures 
and the Use of Government Funds, chaired by Senator Morris Sheppard, 
to conduct an investigation of the alleged use of relief and work- 
relief funds for political purposes. On January 2, 1939, the 
Sheppard Committee reported that funds appropriated for relief 
programs had been diverted to political activities. S. Rep. No. 1, 



149 



-4- 



76th Cong., 1st 3ess. 1 (1939). Although the Committee made 16 
recommendations (attached hereto as Appendix A) as a result of its 
investigation, it did not suggest prohibiting voluntary political 
activity. 

Immediately after the Sheppard committee reported, Senator 
Hatch introduced two bills (S. 212 and 213) which he later con- 
solidated into a single bill, 5. 1871. Although the bill stated 
that "/"nyo such officer or employee shall take any active part 
in political management or in political campaigns," it did not 
specify the activities prohibited. During debate on the Senate 
floor, the bill was attacked for its inherent lack of clarity. 
Objections to the bill centered around its adoption of all rulings 
by the Civil Service Commission under its Rule I prior to passage 
of the Act. The statute incorporated the findings contained in 
approximately 3,000 rulings as follows? 

/~T7he provisions of this Act which prohibit persons 
to whom such provisions apply from taking any active 
part in political management or in political campaigns 
shall be deemed to prohibit the same activities on the part 
of such persons as the United States Civil Service 
Commission has heretofore determined are at the time 
this section takes effect prohibiting on the part of 
employees in the classified civil service of the United 
States by the provisions of the civil-service rules 
prohibiting such employees from taking any active part 
in political management or in political campaigns. 

Senators objecting to this provision pointed out that no one on the 

floor of Lhe Senate, not even Senator Hatch, knew what rules and 



150 



-5- 

regulations were contained in the rulings. In spite of these 
objections, S. 1871 passed the Senate on April 13, 1939. As 
enacted by both Houses of Congress it was entitled "An Act to 
Prevent Pernicious Political Activity, " but it subsequently became 
known as the Hatch Act. President Roosevelt signed the Act on 
August 2, 1939 and sent it, along with his interpretation of the 
law, to Congress. The President contended that the new law was 
constitutional because the federal government may prescribe quali- 
fications for its employees, but noted that such qualifications 

**/ 

cannot interfere with free speech or the right to vote. 

The original version of the Hatch Act dealt with the political 
activity of government employees as follows: 

Sec. 1 makes it unlawful to, or to attempt to, intimidate, 

threaten, or coerce, any person to affect such person's 

vote in elections of Federal officers. 

V 5 St. Mary's L. Ro;v. 216, 217 (1973). Senator Minton remarked: 

It will not do much good to put into the RECORD the rules 
and regulations we are writing into the statute, if we do 
not know what they are. No one on the floors of the Senate, 
not even the "".enator from New Mexico (Senator Hatch), now 
knows what these rules and regulations are. 
86 Cong, r-jc . ^940 (1940). 

**/ Report entitled 'The Hatch Act" by Elizabeth Yadlosky, Legis- 
lative Attorney, American Law Division, Congressional Research Ser- 
vice 197, 207 (1966). It should be noted that President Roosevelt, 
before signing the Act, made an unsuccessful attempt to persuade 
Congress to place administrative employees of the WPA under civil 
service. 



151 



Sec. 2 makes it unlawful for any person employed in any 
administrative position by the United States to use his 
official authority for the purpose of interfering with, 
or affecting the election or nomination of any candidate 
for Federal elective office. 

Sec. 3 makes it unlawf\a to promise any employment or other 
benefit, provided for or made possible in whole or in part 
by any Act of Congress, as consideration for political 
activity in any election. 

Sec. 4 makes it unlawful to, or to attempt or threaten to, 
deprive any person of any employment or other benefit pro- 
vided by any Act of Congress appropriating funds for work 
relief purposes, on acco\int of race, creed, color, or any 
political activity, support of, or opposition to any can- 
didate or any political party in any election. 
Sec. 5 makes it unlawful to solicit funds for political 
purposes from any person known t« be receiving any benefit 
provided for or made possible by any Act of Congress appro- 
priating funds for work relief or relief purposes. 
Sec. 6 makes it unlawful to furnish or disclose or receive 
a list of names of such persons receiving work relief bene- 
fits for political purposes. 

Sec. 7 makes it unlawful to use money appropriated under 
any Act of Congress for work relief for the purpose of inter- 



152 



-7- 



fering with, restraining, or coercing any individual in 
the exercise of his right to vote at any election. 
Sec. 8 provides that any person who violates any of the 
foregoing provisions of this Act upon conviction thereof 
shall be fined not more than $1,000 or imprisoned for not 
more them *ne year, or both. 

Sec. 9 makes it unlawful for any person in the executive 
breinch of the Federal Government to use his official author- 
ity or Influence for the purpose of interfering with an 
election or affecting the result thereof; provides that no 
officer or employee of the executive branch shall take any 
active part in political management or in political campaign^ 
provides that any person violating this section shall be 
Immediately removed from the position or office held l»y him. 
Sec. 9 (a) makes it unlawful for any person employed in any 
capacity by any agency of the Federal government to have 
membership in any political party or crgaiiizatlon which 
advocates the overthrow of our constitutional form of 
government in the United States; provides that any person 

virjlating this section shall l»e Immediately removed from the 

1/ 
position or office held by him. (53 Stat. Il47) . 



* / Yadlosky. The Hatch Act Proscription Against Participation by 
State and Federal Employees in Political Management and Political 
Campaigns: A LeglBlative Hlat*ry 2 (1Q73). 



153 



-8- 



In 1940 Senator Hatch offered an amendment to the Act to 

extend its coverage to state and local officers and employees of 

federally financed projects. The bill passed the Houso of 

Representatives on July 10, 1940 and was signed by the President 

on July 19, 1940. The Act exempted from its political activity 

prohibitions local elections in Maryland and Virginia. in addition, 

it imposed a $5,000 ceiling on contributions to candidates by any- 

*/ 
one other than state and local political committees. The Act 

also placed a prohibition on contributions to any political party 
or candidate by persons or firms having contracts with the federal 
government. 

in 194? the Hatch Act was amended to exempt from the political 
activity prohibitions officers and employees of educational and 
religious organizations supported in whole or in part by the 
federal government. In 1948, the 80th Congress enacted into law 
Title 18 of the United 5tates Code, recodifying and clarifying the 
sections of the Hatch Act which appeared in that Title. In 1950, 
the portion of section 9 of the Hatch Act requiring mandatory re- 
moval for violations was amended to vest in the Civil Service 
Commissicn the discretion to determine whether a violation of the 
Act justifies removal from office. 



V This provision was repealed by the Federal Election Campaign 
Act of 1971. 



154 



-9- 



II. Section 9(a) 



Section 9(a) of the Hatch Act was designed by Congress to 

prohibit "pernicious political activities" on the part of certain 

*/ 
federal employees. This provision, now contained in 5 U.S.C. 

**/ 

i 7324(a), is probably the most crucial section of the act. 
It provides that an employee in an executive agency or an indivi- 
dual employed by the government of the District of Columbia may 
not (1) use his official authority or influence for the purpose 
of interfering with or affecting the result of an election; or 



t/ Hatch Act 1 9(a), ch. 410, 53 Stat. 1148 (1939), as amended 
5 U.S.C. g 7324(a) (1970). 

^/ 5 U.S.C. § 7324(a) (1970) provides: 

(a) An employee in an Executive agency or an individual 
employed by the government of the District of Columbia may 
not — 

(1) use his official authority or influence for the 
purpose of interfering with or affecting the result of 
an election; or 

(2) take an active part in political management or in 
political campaigns. 

For the purpose of this subsection, the phrase "an active 
part in political management or in political campaigns" m^eans 
thost acts of political management or political campaigning 
which were prohibited on the part of employees in the compet- 
itive service before Tuly 19, 1940, by determinations of the 
Civil Service Commission under the rules prescribed b^ the 
President. 



155 



-10- 

(?) take an active part in political managemcint or in political 
campaigns. The section decines "active part in political manage- 
ment or in political campaigns" as those acts forbidden by the 
Civil Service 'Commission prior to 1940 undor rules prescribed by the 
President. ihis part of the statute incorporates the 3,000 
rulings made by the rivil =:ervice Commission under rule I before 
'uly 19, 1940. Although section (a) appears to impose severe 
restrictions upon the personal freedom of fed.oral employees to 
participate in the political process, section (b) mitigates the 
restraints to a certain degree. Tt provides that an individual 
to whom section (a) applies retains the right to vote as he chooses 
and to express his opinion on political subjects and candidates. 
It should be noted that the Hatch Act provision, contrary to Civil 
"ervicc T^ule T, permits federal employees to express political 
opinions publicly as well as privately. Unfortunately, the 
extent of this privilege is somewhat uncleai- since expressions 
of opinion may not rise to the level of campaigning. Nonetheless, 
it is clear that section 73'?4(a)(^) does not prohibit nonpartisan 
political activity on the part of employees covered by the section. 
Political activity i'^ permitted if it arises in connection with: 



'^ 5 TT, -, c. ? 73?4(b) (1970) provides? 

(b) An employee or individual to whom subsection (a) of 
this section applies retains the right to vote as ha chooses 
and to express his opinion on political subjects and candi- 
dates. 



156 



-11- 

(1) an election and the prace<?ing camoaign if none 
of tho candidates is to be nominatvsd or elected at 
that olfaction as representing a party any of whose 
candidates for presidential elector received votes 
in the last preceding election at which presidential 
electors were selected: or 

(?) a question which is not specifically identified 
with a National or State political party or political 
party of a territory or possession of the United States.^/ 

The tenuous distinction between a permissible expression 
of opinion and a prohibited act amounting to "an active part in 
political management or in political campaigns" was considered in 
Wilson V, United States Civil Service Commission , 136 F. Supp. 
104 (D.D.C. 1955). Plaintiff in the case was an employee of the 
railway Mail Service of the United States Post Office Department. 
He had mailed to the Houston Post an unsolicited letter which 
recommended the defeat of a certain partisan candidate for 
governor of the state of Texas. 

The Civil Service Commission instituted removal proceedings 
against the plaintiff under Section 9(a) of the Hatch Act, alleging 
that writing the letter with the intent to have it published const- 
ituted participation in a political campaign. The Commission found 



37 5 U.S.C. 3 7326 (1) & (2). The importance and number of 
political issues thus excepted, e.g. Sunday movies, local school 
bond issues, location of local parks, election of local officials 
in whom no political party is interested, are obviously very 
small. United States Civil Service Commission v. National Associa- 
tion of Letter Carriers, 413 U.S. (1973). 



157 



-12- 



plaintiff in violation of the Act and directed that he be suspend- 
ed from employment for a period of ninety days. In plaintiff's 
subsequent action for injunction and declaratory judgment, the 
District Court for the District of Columbia rejected the Commission^ 
interpretation of section 9 (a). The court held that an isolated, 
unsolicited, unpaid for expression of opinion which might never have 
been published does not indicate a premeditated effort to engage 
in or actively participate in a political campaign. The finding 
of the court was based on the constitutional protection of free 
speech as well as the wording of the statute which permits either 
private or public expression of political opinion by federal 
employees. Although the conclusion of the court is a sound one, 
it is doubtful whether the finding can properly be extended beyond 
the factual situation presented. 

In 1939 the coverage of Civil Service Rule I was somewhat 
limited because only 67.7 percent of civil servants were in the 
classified civil service. The extension of political activity pro- 
hibitions to virtually all employees of the executive branch, im- 
posed by section 9(a), was, therefore, a major extension of 
President Roosevelt's prior executive order. There are, however, 
major exceptions to the coverage of section 9(a) as enacted in 
section 7324(a) of Title 5 of the United States Code. Section 7324 
(a) does not apply to any "individual employed by an educational 
or research institution, establishment, agency or system which is 



158 



-13- 



supported in whole or in part by the District of Columbia or by a 
recognized religious, philanthropic, or cultural organization. 
Section (d) , which exempts a number of specific individuals from 
the restrictions of section (a), provides: 

(d) Subsection (a) (2) of this section does not apply to — 
(1) an employee paid from the appropriation for the 

office of the President; 

(?) the head or the assistant head of an Executive 

department or military departments 

(3) an employee appointed by the President, by and with 

the advice and consent of the Senate, who determines policies 

to be pursued by the United States in its relations with 

foreign powers or in the nationwide administration of Federal 

laws; 

(4) the Commissioners of the District of Columbia- or 

(5) the Recorder of Deeds of the District of Columbia. 
Pub.L. 89-554, Sept, 6, 1966, 80 Stat. 525, _^/ (emphasis 
added) 

Section (d)(1) has been construed to exempt from section 7324(a) 
of the Hatch Act all employees of the White House Office only^ jt 
does not exempt from coverage competitive service employees working 
in the ^rhite House but not paid from appropriations to the V'/hite 
House Office. Section (d) (3) exempts, among others, ambassadors 
and ministers appointed by the President with Senate approval, U.3, 
Representatives and Deputy U,S, Representatives to the United 
Nations and Bureau Chief positions filled by Presidential appoint- 
ment subject to Senate confirmation. Included in the latter cate- 
gory are the Treasurer of the United States, Director of the Mint, 

V 5 U,S,C. S 7324(c) (1970). 

** / A more complete list of positions which qualify for the 
statutory exemption is attached hereto as Appendix B, 



159 



-14- 



Chief of tho Women's Bureau, Director of the Children's Bureau 
and the Commissioner of Education. Under certain conditions, heads 
and members of commissions or task forces created by statute or ex- 
ecutive order are also exempted. It is noteworthy, however, that 
Schedule C Special Assistants to exempted Presidential appointees 
are not entitled to the general exception. 

Persons employed on an intermittent or irregular basis, such 
as experts or consultants on a per diem basis, are subject to the 
political activity restrictions of the Hatch Act while in an active 
duty status only and for the entire 24 hours of any da^ of actual 
employment. The employing agency has the duty of enforcement in the 
cases of those employees in the excepted service. Temporary, part- 
time and emergency employees are subject to the Hatch Act. 
Ill, Sections 2,3, and 4. 

Section 2 of the Hatch Act, codified in 18 U.S.C. I 595, 
prohibits certain federal and state employees in administrative 
positions from using official authority for the purpose of inter- 
fering with or affecting the nomination or election of candidates 

*/ 
for certain federal offices. The prohibition applies only to 

those employed in connection with any activity which is financed 
in whole or in part by loans or grants made by the United States or 
any department or agency thereof- The penalty for violation of the 



V The offices included are President, Vice President, Presidential 
elector. Member of the Senate, Member of the House of Pepresenta- 
tives. Delegate from the District of Columbia, and Resident Com- 
missioner. 



160 



-15- 



section is a $1,000 fine or imprisonment for one year, or both. 
Exempted from the section are acts by of Cices or employees of any 
educational or research institution or establishment "supported in 
whole or in part by any state or political subdivision thereof, or 
by the District of Columbia,., or by any recognized religious, 
philanthropic or cultural organization." There arc no cases re- 
ported under this section. 

Unfortunately, the legislative history of section 595 does 
not clearly indicate the specific activities prohibited by the 
provision. Originally, the bill was passed without debate in the 
"enatc, and the views of the House members who debated the bill 
ara so varied that few conclusions can be drawn from them. The 
Senate debated and concurred in the House amendments after Senator 
Hatch made assurances that the bill still had the teeth that were 
in the original Senate version. 

section 3 of the Act, codified in 18 U.S.C. 1 600, makes it 
a misdemeanor to promise employment or other benefit in consider- 
ation for political activity or for the support of or opposition 
to any candidate or any political party in connection with any 
primary, general or special election. The provision also applies 
to any political convention or caucus held to select candidates 
for any political office. The penalty for violation of the pro- 
vision is a SI, 000 fine or imprisonment for not more than one year, 
or both. 



161 



-16- 



3ection 4 of the Act, now 18 U.S.C. § 601, makes it a 
misdemeanor to deprive another of any employment, position, work 
or other federal relief benefit on account of race, creed, color, 
or any political activity, or opposition to any candidate or any 
political party in any election. The penalty for violation of the 
section is the same as that imposed by section 600, 

TV. Con ititutionality 

Eight years after passage of the Hatch Act, the Supreme Court 
decided United Public Workers v. Mitchell , 330 U,S, 75 (1946), 
the first major case challenging the constitutionality of the Act, 
Mr, Poole, plaintiff in the case, was an employee of the United 
States Mint in Philadelphia who had served as a Ward Executive 
Committeeman for the Democratic Party. While holding this position 
he had served as a worker at the polls and had assisted in paying 
the party workers for their services on election day. The Civil 
Service Commission found that he had taken an "active part in 
political management or in political campaigns" in violation of 
section 9(a) of the Hatch Act and issued an order for his removal 
from federal employment. Plaintiff alleged that enforcement of 
section 9(a) was violative of his rights under the first, ninth 
and tenth amendments. The Court acknowledged that the nature of 
political rights reserved to the people by the ninth and tenth 

^/The only reported case under sections 3 and 4 held that primary 
elections were not covered. This limitation was later removed by 
the Federal Election Campaign Act of 1971. 



.?4-qfifi O _ 7d 



162 



-17- 
amendments was in issue. The Court also stated th^t the Hatch Act 
imposed a "measure of interference" on what otherwise would be the 
freedom of the civil servant under the first, ninth and tenth 
amendments. Having recognized the possible infringement of these 
basic constitutional rights, the Court pointed out the "accepted 
constitutional doctrine that these fundamental human rights are not 
absolutes." Balancing the constitutional guarantees of freedom 
against a congressional enactment designed to free the civil service 
of the evil of partisan politics, the Court upheld section 9(a) 
as a permissible mode of regulating the political conduct of its 
employees. 

The Court noted that by accepting the privilege of federal 
employment an individual sacrifices some of the rights he enjoys 
as a private citizen. This logic bears out the theme of Mr, Justice 
Holmes' assertion that "the petitioner may have constitutional 
right to talk politics, but he has no constitutional right to be 
a policeman." 

In Mitchell , the majority of the Court rejected Pooles' 
contention that section 9(a) violates the fifth amendment because 
it is so vague and indefinite as to prohibit lawful activities as 
well as activities which are properly made unlawful by other pro- 
visions of law. Justice Black dissented, however, stating that the 

**/ 

case should be controlled by earlier first amendment decisions; 

■^/ McAuliffe V. New Bedford, 155 Mass. 216, 29 N.E. 517 (1892) 
(dictum) . 

**/ Thornhill v. Alabama, 310 U.S. 38 (1940); Marsh v. Alabama, 326 
U.S. 501 (1946); Bridges v. California, 314 U.S. 252, 260, 263 (lS41i 



163 



-18- 



Certainly laws which restrict the liberties guaranteed 
by the First Amendment should be narrowly drawn to meet 
the evil aimed at and to effect only the minimum number 
of people imperatively necessary to prevent a grave and 
imminent danger to the public.^/ 

In brief, the majority of the Court in Mitchell concluded 
that a federal employee, as a recipient of the privilege of public 
employment, had not been deprived of any rights by the act since 
he might retain his political freedom merely by rejecting the 
benefit conferred. 

A number of state court cases construing "little Hatch Acts" 
arose following the decision in Mitchell , but the Supreme Court did 
not decide another case dealing with the constitutionality of the 
Hatch Act until the 1973 decision in United "tates Civil Service 
Commission v. National Association of Letter Carriers , 413 U.S. 

(1973). The plaintiffs. National Association of Letter Carriers 

AFL-CIO, and six federal employees alleged that the Hatch Act ban 
on federal employee political activity violated the freedom 
of speech guarantee of the first amendment. Specifically, the 
plaintiffs asserted that the statute was overbroad in its sweep, 
thus imposing a chilling effect on expression protected by the 
first amendment, A divided three judge district court held that 
section 7324 (a) (2) was overbroad and that the government must 
devise less drastic means of protecting its legitimate interest 

V united Public Workers v, Mitchell, 330 U.S. 75, 111 (1946) 
(dissenting opinion) . 

**/ 5 U.S.C. § 7324 (a) (1970). 



164 



-19- 



V 
in assuring a non-partisan civil service. The decision was 

appealed directly to the Supreme Court where it was reversed in a 

four to three decision. The Court set the tone for its opinion by 

reiterating its conclusion in Pickering v. Board of Education ; 

the government has an interest in regulating the conduct 
and 'the speech of its employees that differ /"V^ 
significantly from those it possesses in connection with 
regulation of the speech of the citizenry in general. 
The problem in any case is to arrive at a balance 
between the interest of the /"employee/^, as a citizen, 
in commenting upon_matters of public concern and the 
interests of the _/ government7» as an employer, in promoting 
the efficiency of the public services it performs through 
its employees. 391 U.S. 563, 568 (1968). 

The Court stated that employees of the Executive Branch, or of its 
agencies, should administer the law in accordance with the will of 
Congress, not in accordance with their own will or the will of a 
political party, and it noted that a major theme of the Hatch Act 
is impartial execution of the laws. Upholding the Mitchell case, 
the Court found that plainly identifiable acts of political manage- 
ment and political campaigning could constitutionally be prohibited 
on the part of federal employees. 

A majority of the Court also rejected appellee's contention 
that the statute was both unconstitutionally vague and fatally 
overbroad. 

The Court noted that section 15 of the Hatch Act defines "an 
active part in political management and political campaigns" as 

V Nat'l. Ass'n. of Letter Carriers v. Civil Serv. Coram' n, 346 F. 
Supp. 578. 585 (D.D.C. 1972). 



165 



-20- 



those activities which had been prohibited prior to 1940 by the 
Civil Service Commission under Pule I. The District Court had 
held that section 7374(a) and the definitional addendum of section 
15 were insufficient to guide employee behavior because many of 
the 3,000 adjudications were "undiscoverable, inconsistent, or 
incapable of yielding any meaningful rules." The Supreme Court 
took a different view of the statute, holding that the Civil 
Service Commission's regulations were a current and accurate 
statement of the Statute. Furthermore, the Court addressed itself 
to these regulations and the statute itself for purposes of deter- 
mining whether section 7324(a) was unconstitutionally vague or 
overbroad. 

In conclusion, the Court declared that section 7324(a) is a 
constitutionally permissible method of regulating the political 
conduct of federal employees. Although Justice Douglas, in his 
dissenting opinion, held that the "chilling effect of these vague 
and generalized prohibitions is so obvious as not to need elabora- 
tion," the majority reaffirmed the constitutionality of the pjzt 
as established in Mitchell. 



^/ The pertinent regulations, contained in 5 CFR i 733, are attached 
hereto as Appendix C. 



166 



-2fi"- 



"amuel Dash 
Chief Counsel 

David M. Dorsen 
Assistant Chief Counsel 

''7. Dennis Summers 
Assistant Counsel 

Bruce Ouan 
December, 1973 Research Assistant 



167 



APPENDIX A 
Report of the Special Committee on Senatorial Campaign Expenditures 
and Use of Government Funds. S. Rept. No. 1, 76th Cong. 

I. The committee in the course of its work has been compelled 
to give much of its attention to charges of undue political activity 
in connection with the administration and conduct of the Works 
Progress Administration in certain States. While many of these 
charges, after investigation, were not sustained, the committee 
nevertheless finds that there has been in several States, and in 
many forms, unjustifiable political activity in connection with the 
work of the Works Progress Administration in such States. The 
cwnmittee believes that funds appropriated by the Congress for the 
relief of those in need and distress have been in many instances 
diverted from these high purposes to political ends. The committee 
condemns this conduct and recommends to the Senate that legislation 
be prepared to make impossible, so far as legislation can do so, 
further offenses of this character. 

II. The committee recommends legislation prohibiting contri- 
butions for any political purpose whatsoever by any person who is 
the beneficiary of Federal relief funds or who is engaged in the 
administration of relief laws of the Federal Government. The com- 
mittee also recommends legislation prohibiting any person engaged 

in the administration of Federal relief laws from using his official 
authority or influence to coerce the political action of any person 
or body. 



168 



-2- 



III. The committee recommends that section 19, title 1, of 
the present Work Relief Act, making it a misdemeanor for any per- 
son knowingly, by means of fraud, force, threat, intimidation, 
boycott, or discrimination on account of race, religion, political 
affiliations, or membership in a labor organization, to deprive 
any person of any of the benefits to which he may be entitled 
under the Work Relief Act, be so amended as to make such violation 
a felony instead of a misdemeanor. 

IV. The committee recommends that all Federal relief acts 
should be so amended as to provide that any person who knowingly 
makes, furnishes, or discloses any list of persons receiving bene- 
fits under such acts or of persons engaged in the administration 
thereof, for delivery to a political candidate, committee, campaign 
manager, or employee thereof shall be deemed guilty of a misdemeanor. 

V. The committee recommends that section 208, Title 18, of 
the United States Code be so amended as to prohibit not only the 
soliciting and receiving of political contributions by officials, 
employees, and persons now named in that section, but also by any- 
one acting in their behalf, 

VI. The committee recommends that section 211, Title 18, of 
the United states Code be so amended as to prohibit political con- 
tributions not only by Federal employees to any Senator or Member 
of or Delegate or Resident Commissioner to Congress, but also to 
any candidate for such offices, or to any person or committee acting 



169 



-3- 



with the knowledge and consent and especially in behalf of such 
Senator or Member of or Delegate to Congress or Resident Commission- 
er therein, or of any candidate for such office. 

VII. The committee recommends that there should be a limita- 
tion upon contributions which individuals may make in behalf of a 
candidate seeking election to Federal office. 

VIII. The committee recommends that section 209, Title 18, 
nf the United "tates Code, relating to solicitation for political 
contributions in any room or building occupied in the performance 
of official duties by any person in the employ of the Federal 
Government be so amended as to include solicitation by letter and 
telephone, as well as in person. 

IX. The committee recommends the adoption by the Senate of a 
rule requiring all candidates for the Senate to file with the 
Secretary of the Senate, in response to appropriate questionnaires, 
a full and complete statement of receipts and expenditures incurred 
by or in behalf of such candidates in their campaigns for nomination 
as well as for election. 

X. The committee recommends that section 313 of the Federal 
Corrupt Practices Act be so amended as to prohibit any contribution 
by any national bank, any corporation organized by authority of 
any law of Congress, or by any corporation engaged in interstate 

or foreign commerce of the United States, in connection with any 
primary or general election. 



170 



XI. The committee recommends that subsection (c) , section 
309, of the Federal Corrupt Practices Act be so amended as to re- 
quire candidates to report all their campaign expenditures, includ- 
ing those exempted in determining the amount they are allowed to 
spend under the law. 

XII. The committee recommends that section 310 of the Federal 
Corrupt Practices Act be so amended as to prohibit candidates from 
promising work, employment, money, or other benefits in connection 
with public relief. 

XIII. The committee recommends the enactment of a law 
regulating more strictly the use of the franking privilege. 

XIV. The committee recommends that the Senate take under 
consideration the question whether or not a contribution for politi- 
cal purposes made either voluntarily or involuntarily by persons in 
the employ of the Federal Government should be permitted. 

XV. The committee recommends that the Senate take under 
consideration the question of legislation in connection with 
coalition and group tickets. 

XVI. The committee recommends that the Senate adopt a rule 
authorizing the Vice President to appoint, at the beginning of each 
Congress, for the duration of said Congress, a Senate committee 

on investigation of senatorial campaign expenditures, campaign 
activities, and use of governmental funds for the purpose of influ- 
encing primaries and general elections. 



171 



APPENDIX B 
Memo by Office of General Counsel U.S. Civil Service Convmission. 

PARTIAL LIST OF FEDERAL POSITIONS EXCEPTED FROM 
RESTRICTIONS ON POLITICAL MANAGEMENT AND CAMPAIGNING 
The listing below reviews some of the position which qualify for 
the statutory exception. 

I. An employee paid from the appropriation for the Office of 
the President. 

This category includes employees of the White House Office 

only. 

This category does not include; 

(a) competitive service employees who are detailed to the 
White House but not paid from funds specifically 
appropriated for the White House Office. 

(b) employees of the Bureau of the Budget, Office of 
Economic Opportunity, Office of Emergency Planning, 
and other agencies within the Executive Office of the 
President which do not come within the appropriation 
for the White House Office. However, presidential 
appointees in the Executive Office agencies who are 
confirmed by the Senate may be otherwise excepted. 

II. An employee appointed by the President, by and with the 
advice and consent of the Senate, who determines policies 
to be pursued by the United States in its relations with 
foreign powers. 



172 



-2~ 



Positions in this category include: 

(a) ambassadors and ministers appointed by the President 
with Senate approval. 

(b) (1) U.S. Representative to the United Nations 

(2) Deputy U.S. Representatives to the United Nations 

— to the Security Council 

— to the Economic and Social Council 

(3) U.S. Representative on the Trusteeship Council 
Not excepted; Chairman, U.S. Section of United States-Mexican 
Border Development Commission (Senate confirmation not re- 
quired. ) 

III. An employee appointed by the President by and with the 

advice and consent of the Senate who determines policies 
to be pursued by the United States in the nationwide 
administration of Federal laws. 

(a) "Bureau Chief" positions filled by Presidential appoint- 
ment subject to Senate confirmation, such as: 

(1) Treasurer of the United States 

(2) Director of the Mint 

(3) Chief of the Women's Bureau 

(4) Director of the Childrens' Bureau 

(5) Commissioner of Education 

(b) Heads and members of commissions or task forces 
created by statute or Executive order. Positions are 
excepted if the following conditions exist: 



173 



-3- 



(a) appointment by the President, 

(b) subject to confirmation by the Senate, and 

(c) responsibility for determining policies to be 
pursued by the United States in the nationwide 
administration of Federal laws. 

- Members of Commissions and Task Forces created by 
statute would be excepted under the three conditions 
stated above, e.g.. Commission on Civil Rights. 

- Members of Presidential Commissions or Task Forces 
created by Executive order would not , in most instances, 
be excepted because the second condition, i.e.. Senate 
approval, would not usually exist. 

-Members of ad hoc part-time Commissions or Task 
Forces created by Presidential memorandum would not 
be excepted because their appointments would not be 
subject to Senate approval. 

- Members of statutory Boards or Commissions with 
full-time appointments are excepted if the three 
conditions exist. Members of the SACB, Foreign Claims 
Settlement Commission, and Indian Claims Commission 
qualify for the exception. 

NOTE: Any part-time member of a Commission, Board, or Task 
Force who does not qualify for any of the exceptions 
discussed herein is bound by the full restriction of 



174 



-«?■'- 



the statute on days of active service only, 
(c) Solicitors and General Counsels who are appointed by 
the President subject to Senate approval are excepted, 
for example. Solicitor of Labor, General Counsel of 
the Department of Defense, and others. 

IV. Schedule C Special Assistants to exempted Presidential 
appointees are not entitled to the general exception. It 
may be noted, however, that the Special Assistant to the 
Secretary of Health, Education, and Welfare comes within 
exception III above in view of the fact that he is 
appointed by the President subject to Senate confirmation 
and has policy making responsibilities in health and 
medical affairs. 

V. The Head or Assistant Head of an Executive department or 
military department. 

This category includes: 

Heads of departments 

Undersecretaries 

Deputy Heads including Deputy Postmaster General 
and Deputy Attorney General 

Assistant Secretaries 
Not excepted are: 

Deputy Undersecretaries 

Deputy Assistant Secretaries 

Assistant Attorney General for Administration 



175 



APPENDIX C 

Permissible Activities 
§ 733.111 Permissible activities. 

(a) All employees are free to engage in political activity to 
the widest extent consistent with the restrictions imposed by law 
and this subject. Each employee retains ths right to- 

(1) Register and vote in any election; 

(2) Express his opinion as an individual privately and public- 
ly on political subjects and candidates; 

(3) Display a political picture, sticker, badge, or button; 

(4) Participate in the nonpartisan activities of a civic, 
community, social, labor, or professional organization, or of a 
similar organization; 

(5) Be a member of a political party or other political organ- 
ization and participate in its activities to the extent consistent 
with law; 

(6) Attend a political convention, rally, fund-raising func- 
tion; or other political gathering; 

(7) Sign a political petition as an individual; 

(8) Make a financial contribution to a political party or 
organization; 

(9) Take an active part, as an independent candidate, or in 
support of an independent candidate, in a partisan election covered 
by i 733.124; 

(10) Take an active part, as a candidate or in support of a 
candidate, in a nonpartisan election; c^. 



176 



-2- 



(11) Be politically active in connection with a question 
which is not specifically identified with a political party, such 
as a constitutional amendment, referendum, approval of a municipal 
ordinance or any other question or issue of a similar character; 

(12) Serve as an election judge or clerk, or in a similar 
position to perform nonpartisan duties as prescribed by State or 
local law; and 

(13) Otherwise participate fully in public affairs, except as 
prohibited by law, in a manner which does not materially compromise 
his efficiency or integrity as an employee or the neutrality, 
efficiency, or integrity of his agency. 

(b) Paragraph (a) of this section does not authorize an 
employee to engage in political activity in violation of law, while 
on duty, or while in a uniform that identifies him as an employee. 
The head of an agency may prohibit or limit the participation of an 
employee or class of employees of his agency in an activity permit- 
ted by paragraph (a) of this section, if participation in the 
activity would interfere with the efficient performance of official 
duties, or create a conflict or apparent conflict of interests. 

Prohibited Activities 
§ 733.121 Use of official authority; prohibition. 

An employee may not use his official authority or influence 
for the purpose of interfering with or affecting the result of an 
election. 

I 733.122 Political management and political campaigning prohibi- 
tions. 



177 



-3- 



(a) An employee may not take an active part in political 
management or in a political campaign, except as permitted by this 
subpart. 

(b) Activities prohibited by paragraph (a) of this section 
include but are not limited to - 

(1) Serving as an officer of a political party, a member of a 
National, State, or local committee of a political party, an officer 
or member of a committee of a partisan political club, or being a 
candidate for any of these positions; 

(2) Organizing or reorganizing a political party organization 
or political club; 

(3) Directly or indirectly soliciting, receiving, collecting, 
handling, disbursing, or accounting for assessments, contributions, 
or other funds for a partisan political purpose; 

(4) Organizing, selling tickets to, promoting, or actively 
participating in a fund-raising activity of a partisan candidate, 
political party, or political club; 

(5) Taking an active part in managing the political campaign 
of a partisan candidate for public office or political party office; 

(6) Becoming a partisan candidate for, or campaigning for, an 
elective public office; 

(7) Soliciting votes in support of or in opposition to a ~\ J 
partisan candidate for public office or political party office; ij 



34-966 O - 74 - nt. 1 - 13 



178 



-4- 



(8) Acting as recorder, watcher, challenger, or similar 
officer at the polls on behalf of a political party or partisan 
candidate; 

(9) Driving voters to the polls on behalf of a political 
party or partisan candidate; 

(10) Endorsing or opposing a partisan candidate for public 
office or political party office in a political advertisement, a 
broadcast, campaign literature, or similar material; 

(11) Serving as a delegate, alternate, or proxy to a political 
party convention; 

(12) Addressing a convention, caucus, rally, or similar / 

gathering of a political party in support of or in opposition to a V 

partisan candidate for public office or political party office; 

i 
and 

(13) Initiating or circulating a partisan nominating petition. 



179 



HERMAN E. TALMAPGE, GA, EDWARD J, CURNEY. FI_A. 

DANIEL K. INOUYE, HAWAII LOWELL P. WCICKER, JR.. CONN. 

JOSEPH M. MONTOYA, N. MEX. 



QICtTticb S>i<xie!S. ^enale 

SELECT COMMITTEE ON 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(pursuant to s. res, 60. no congress) 

Washington, d.c. 20510 



MEMOPANDUM OF LAW 
LEGISLATION CONCERNING CAMPAIGN CONTRIBUTIONS 
AND FINANCING OF FEDEPAL ELECTIONS 



Table of Contents 



I. Contributions: Restrictions and Disclosure Requirements 1. 

A. Corporation and Union Contributions 1. 

B. Disclosure Requirements 9. 

C. The Extension of Unsecured Credit 13. 

II. Statutory Limitations on Campaign Spending 15, 

III. Tax Consequences of Gifts to Political Committees 19. 

A. Appreciated Property and the Tax Status of 19. 
Political Committees 

B. The Gift Tax Exclusion 24. 



180 



-1- 



This is the first of a series of memoranda prepared by the 
staff of the Select Committee in preparation for the Committee's 
investigation of campaign financing practices. In this memoran- 
dum, we broadly review the existing federal statutes governing 
political contributions and spending limitations in connection with 
elections for federal office. Our discussion is divided into 
three parts. The first part covers the various restrictions on the 
making of political contributions and the requirements, where such 
contributions may validly be made, that they be disclosed. Here, 
we discuss also the restrictions on credit furnished by regulated 
industries. The second part is concerned with limitations on the 
amounts that may be expended by the candidates themselves. In the 
final section, we deal with certain tax aspects of campaign finan- 
cing, particularly the special income and gift tax consequences of 
gifts to political committees. 

I. Festrictions and Disclosure Requirements 

A. Corporation and Union Contributions 

The first congressional action in the area of campaign finan- 
cing was the Act of January ?6, 1907, which prohibited direct 
contributions by corporations in elections for the Presidency, 
Senate, and House, This legislation, in slightly revised form, 
became the Federal Corrupt Practices Act of 1910, 36 Stat. 8?2 
(1910). In 1921, the =;upreme Court in the case of Newberry v. 
United States , 256 U.S. 232 (1921), held that the Act was unconsti- 
tutional as applied to senatorial primaries held prior to the 



_^/ Other memoranda will cover such areas as contributions by foreign 
sources and the relevance of the Hatch Act to federal campaign 
financing. 



181 



-2- 



enactment of the constitutional amendment (Seventeenth Amendment) 
which provided for the direct election of Senators, This caused 
the Congress to pass the Corrupt Practices Act of 19?5 which defined 
the term "election" to exclude primaries and political conventions. 
In addition, the law defined "contribution" in the broad sense as 
including gifts of money or anything of value and subjected the 
recipients as well as donors of such gifts to penalties. 

During World War II, Congress extended the prohibition against 
corporate contributions to labor unions. Such a provision was in- 
cluded in Section 204 of the Labor Management Relations Act of 1947 
(the Taft-Hartley Act) and the Corrupt Practices Act was concomitant- 
ly revised to include labor unions as well as corporations, to in- 
clude "expenditures" as well as contributions and primary elections 
as well as general elections. 18 U.S.C. § 610 (1947). 

As it read in 1971, the relevant section of the Corrupt Prac- 
tices Act thus provided that: 

It is unlawful for any national bank, or any corporation 
organized by authority of any law of Congress, to make 
a contribution or expenditure in connection with any election 
to any political office, or in connection with any primary 
election or political convention or caucus held to select 
candidates for any political office, or for any corporation 
whatever, or any labor organization to make a contribution 



V It seems clear that Congress constitutionally may regulate 
presidential or congressional primaries as well as nominating 
conventions for national office. See Chambers & Potunda, Peform of 
Presidential Nominating Convention , 56 Va. L. Rev. 179 (1970). 



182 



-3- 



or expenditure in connection with any election at which 
Presidential and Vice Presidential electors or a Senator 
or Representative in, or a Delegate or Resident Commissioner 
to Congress are to be voted for, or in connection with any 
primary election or political convention or caucus held to 
select candidates for any of the foregoing offices, or for 
any candidate, political committee, or other person to accept 
or receive any contribution prohibited by this section." 

Every corporation or labor organization which makes 
any contribution or expenditure in violation of this section 
shall be fined not more than $5,000r and every officer or 
director of any corporation, or officer of any labor organ- 
ization, who consents to any contribution or expenditure 
by the corporation or labor organization, as the case may 
be, and any person who accepts or receives any contribution, 
in violation of this section, shall be fined not more than 
$1,000 or imprisoned not more than one year, or both: and 
if the violation was willful, shall be fined not more than 
$10,000 or imprisoned not more than two years, or both. 

Until 1971, the term "contribution" was defined as: 

a gift, subscription, loan, advance, or deposit, of money, 
or anything of value, and ... a contract, promise or agree- 
ment to make a contribution, whether or not legally enforce- 
able. 18 U.S.C. i 591. 

In 1971, Congress passed the Federal Election Campaign Act, 

13 U.S.C. § 591, which amended the Corrupt Practices Act set out 

above. The Act by its terms did not take effect until April 7, 1972. 

IVhat it did essentially was to clarify the definition of an illegal 

"contribution." First, Congress codified the principle recognized 

by a federal court decision that a national or state bank could 

make a loan "in accordance with the applicable banking laws and 

regulations and in the ordinary course of business," a principle 

that had been recognized by the federal courts. More significant, 

V U.S. V. First National Bank of Cincinnati, 329 F. Supp. 1251, 
(S.D. Ohio 1971) . 



183 



-4- 



however, was the additional language specifying permissible and 
illegal "contributions or expenditures" by corporations and labor 
unions, language which is set out in full below. 

The 1971 Act makes it clear that certain political activities 
are expressly permissible. The law exempts communications between 
a corporation and its stockholders and their families (but not 
between a corporation and its employees) , Similarly excluded from 



37 The provision reads in full: 

As used in this section, the phrase 'contribution or 
expenditure' shall include any direct or indirect payment, 
distribution, loan, advance, deposit, or gift of money, 
or any services, or anything of value (except a loan of 
money by a national or State bank made in accordance with 
the applicable banking laws and regulations and in the 
ordinary course of business) to any candidate, campaign 
committee, or political party or organization, in connection 
with any election to any of the offices referred to in this 
section: but shall not include communications by a corporation 
to its stockholders and their families or by a labor organi- 
zation to its members and their families on any subject r 
nonpartisan registration and get-out-the-vote campaigns by a 
corporation aimed at its stockholders and their families, 
or by a labor organization aimed at its members and their 
families; the establishment, administration, and solicitation 
of contributions to a separate segregated fund to be utilized 
for political purposes by a corporation or labor organization: 
Provided , That it shall be unlawful for such a fund to make 
a contribution or expenditure by utilizing money or anything 
of value secured by physical force, job discrimination, 
financial reprisals, or the threat of force, job discriminatioa 
or financial reprisal: or by dues, fees or other monies re- 
quired as a condition of membership in a labor organization 
or as a condition of employment, or by monies obtained in any 
commercial transaction. 



184 



the law are conununications by unions to members and their families 

"on any subject." In both instances. Congress has gone on to 

*/ 
allow nonpartisan registration and "get-out-the-vote campaigns." 

Finally, the 1971 Act permits a corporation or labor union to 

provide for "the establishment, administration, and solicitation 

of contributions to a separate segregated fund to be utilized for 

political purposes." The corporation or union need insure only that 

the money was not obtained through force or the threat of employ- 

ment reprisals, or "in any commercial transaction." The 

provision in the new act for a separate fund basically codifies the 

decision of the Supreme Court in Pipefitters Local 5S2 v. 

United States , 407 U.S. 385 (1972). There, the Court sanctioned 

the common practice of separate funds for political purposes set 

up by labor unions governed by the older Corrupt Practices Act, 

so long as the persons contributing to the fund were fully aware 



j^/ Although the statutory language talks only of nonpartisan activ- 
ities aimed at stockholders and union members and their families, 
the Justice Department has interpreted the law to exempt nonpartisan 
activities aimed at the general public. Letter and staff Memoran- 
dum from Henry E. Petersen, Assistant Attorney General to Rep. 
James Harvey, Aug. 23, 1972, reprinted in H.R. Rep. No. 93-1, 93rd 
Cong., 1st Seas. 273-74 (1973). The Justice Department position is 
consistent with case law prior to the passage of the Federal Elec- 
tion Campaign Act. United States v, Lewis Food Co., 366 F.2d 710 
(9th Cir. 1966) . 

**/The penalty for violation of the provisions governing corporation 
and union contributions, is a maximum fine of $5,000 for the 
corporation or labor organization involved. An officer or director 
of a corporation or union who consents to an illegal contribution 
and any person who receives one are equally subject to a fine of 
$1,000 or a one-year prison sentence or both. If the violation is 
wilful, the maximum penalty is a fine of $10,000 and a two year 
sentence. 



185 



-6- 

that their contributions were voluntary. 

It is in this area of voluntary funding that the new Campaign 
Act may be most unclear and possibly subject to abuse. The Act 
specifies that the use or threat of physical force, job discrimina- 
tion or financial reprisals will render a contribution involuntary, 
and the Supreme Court has said, as we have noted, that under the 
previous legislation contributors had to be aware that their dona- 
tions were strictly voluntary. However, the thrust of the Act is 
to allow the corporation or labor union to solicit contributions 
from their employees to fulfill whatever purposes may be served by 
a political fund. Here the line between what is permissible soli- 
citation and what is coercion becomes clouded. An executive might 
be asked to supervise solicitation of a certain group of stockhold- 
ers, employees, or union members, for example. Arguably, it would 
be permissible for this person to administer such a program on his 
own time, but since executives are not called upon to punch time 
clocks, it is very difficult to say what portion of his efforts 
relate to his employer's time, and thus possibly to non-voluntary 
action, and what he has done on his own time. In addition, the 
executive might be asked to invest more than time- he might be asked 



*/ Dicta in the Pipefitters case suggests that prior to 1972, labor 
unions could not have used general union funds to administer a 
political fundr the Court added, however, that the new law "plainly 
permits it." 407 U.S. at 427. 



186 



-7- 



to 3ign a letter inviting contributions from various sources. This 
would be a contribution of the employees' name to a political 
campaign and may well be viewed by his employer as voluntary activ- 
ity. But in reality it may be assumed that any high officer, when 
asked by his superior to undertake such a project, would naturally 
feel some pressure, real or imagined, to comply with his employer's 
request. Each case will then have to be viewed by the courts on a 
case-by-case basis, and absent any guidelines yet drawn by the 
courts, it is unclear just how this provision will be viewed and 
applied. 

An additional source of abuse may be in the area of partisan 
solicitation among corporation employees (apparently this took 
place on a widespread basis during the 1972 presidential campaign). 
The law provides that a corporation may communicate anything to 
its stockholders, including partisan appeals for campaign contri- 
butions. It may also establish a segregated fund to which the 
general public presumably can contribute. If the corporation estab- 
lishes a partisan fund, however, and solicits donations for it from 
persons other than its stockholders, it is, under a strict inter- 
pretation of the law, arguably making an illegal contribution, in 
the form of solicitation and administration costs, to a particular 
candidate or party. Following this interpretation, in order to 
solicit from its employees or the general public, a corporation 
must establish a nonpartisan campaign fund -- one which clearly is 
within the control of the corporation officers. There would be no 
indication that the funds are intended for a particular candidate 



187 



-8- 



or party, although contributors might draw their own conclusions 
about what kind or even what specific candidates a particular cor- 
poration is likely to support. The problem here is that the statute 
is not clear enough on its face, and no judicial decisions have yet 
addressed themselves to this set of circumstances. 

Before turning to the disclosure aspects of federal campaign 
law, we should briefly discuss one other restriction on political 
contributions — 18 U.s.C. 1 611 which prohibits contributions by 
federal contractors. Prior to 1972, there was confusion as to how 
this prohibition applied to corporate contractors. The 1940 amend- 
ments to the Hatch Act, of which the original section 611 was a part, 
were designed, as shown by the legislative history, to prohibit 
contributions by "persons, corporations or firms" engaged in govern- 
ment contracting. During the floor debates, however, the word "cor- 
porations" was deleted, on the theory that any corporate contribu- 
tions were already prohibited by the Corrupt Practices Act. Although 
the word "whoever" (defined in another section of the Act to in- 
clude corporations) was substituted for the term "persons or firms" 
in 1948, the original wording remained in the section title, and in 

1961 the Justice Department was still interpreting the section as 

V 
inapplicable to otherwise permissible corporate contributions. 

The 1971 law, however, specifically covers donations by corporate 

contractors, and thus arguably prohibits donations from segregated 



^/ Letter from Burke Marshall, Assistant Attorney General, to 
Senator Williams, April 20, 1961, in Cong. Fee. daily ed., Jan. 10, 
1964. 



188 

-9- 

*/ 
political funds otherwise permitted under § 610. 

B. Disclosure Requirements 

Both the Corrupt Practices Act and the Federal Elections Cam- 
paign Act have required public disclosure of campaign donations. A 
gaping loophole in the law prior to April 7, 197?, however, was the 
provision that a political committee which operated in only one 

state and was not a branch of a national party was not required to 

A*/ 

report contributions. The new law requires that all committees 
handling more than $1,000 per year report contributions in excess of 
$100. It also replaces the requirement under the old Act that 
individuals making expenditures in excess of $50 in more than one 
state must report such contributions, with a stronger provision 
applying to all individuals making large contributions or expendi- 
tures other than through contributions to a candidate or committee. 
Another problem was the vagueness of the Corrupt Practices Act 
with regard to when, in a given campaign, the disclosure require- 
ments took effect. The law specifically exempted disclosure of 
primary election financing and the requirements were frequently 
interpreted to become operative only upon the nomination of a 
candidate by a political party. The new law clearly requires 



*/ The maximum penalties for violation of section 611 are five years 
Tmprisonment or a $5,000 fine, or both. 

j^/ 2 U.S.C. § 241 (c) 

*** / This interpretation has been challenged, however, on the 
grounds that much "pre-convention financing", particularly in 
campaigns involving incumbents, is aimed at the general election. 
Common Cause v. Finance Committee to Pe-elect the President (D.C. 
D.C.), Civ. Action No. 1780-72. 



189 



-10- 



disclosure as soon as a candidate or committee handles its first 
financial transaction. 

In general. Title III of the Act requires disclosure by candi- 
dates and political committees of all contributions, transfers, 
and expenditures in excess of $100, Persons making contributions 
or expenditures in excess of this sum other than by contribution to 
a "committee" or "candidate" as defined by the Act are required to 
personally report such contributions. The new law in contrast to 
the old Corrupt Practices Act, also prohibits contributions in the 
name of another or the knowing acceptance of such contributions. 

"Candidate" is defined by the Act as anyone who has (1) filed 
for federal office or (2) accepted a contribution, made an expendi- 
ture or authorized same with a view to bringing about his nomination 
or election to federal office. A "political committee" in turn is 
any group handling more than $1,000 in contributions or expenditures 
in a calendar year. Thus a contributor who gives more than $100 
to a "minor" committee is required to make an independent report of 
his contribution. The definition of political committee does not 
include individuals, as every committee must have a chairman and 
a treasurer who must be separate persons, and no contributions or 
expenditures can be handled by a committee when there is a vacancy 
in either office. Finally, "contributions" includes gifts or loans 
of anything of value, including the services of an employee, but 
excludes the services of a bona fide volunteer. 

^/ The entire text of the 1971 Act is appended as Appendix A to this 
memorandum. Title III is set out at pages 5-9 of Appendix A. 



190 



-11- 



Under the provisions of the 1971 Act, reports are made to the 
appropriate supervisory officer: the Comptroller General in the 
case of executive candidates, or the Secretary of the Senate or 
Clerk of the House of Representatives. Each of these officers has 
since drawn up appropriate regulations for the process. Political 
committees must register with the appropriate officer as soon as 
they anticipate handling contributions or expenditures of $1,000 
in a year. Reports are made by the candidate or committee on the 
tenth day of March, June, and September. In addition to reporting 
contributions and expenditures in excess of ?100, a committee 
treasurer is required to keep records of contributions in excess of 
$10 and all expenditures. 

The new law, in another departure from the Corrupt Practices 
Act, is clear concerning solicitations or expenditures by an un- 
authorized committee on behalf of a candidate; All of the commit- 
tee's advertisements must include on their face a notice that the 
committee is not authorized by the candidate and he is not respon- 
sible for its activities. There is no such disclaimer requirement, 
however, applicable to the unauthorized activities of an individual 
acting on behalf of a candidate or committee. But such persons 
cannot escape the basic disclosure requirement. For if they accept 
any contribution in excess of SIO in the name of a committee, the 
Act mandates that they report this fact to the committee treasurer 
within five days and the report becomes a part of the committee's 
required records and reports which are submitted to the supervisory 



191 



-12- 



officer. Moreover, if the individual makes expenditures on behalf 
of either a committee or candidate he must himself file a report 
with the supervisory officer. If he accepts contributions and then 
forwards them to a candidate he cannot do so in his own name under 
the new law since to do so would be considered a conspiracy to 
make contributions in the name of another. 

A special problem is presented by the section of the Federal 
Election Campaign Act governing corporate and union contributions 
(18 U.S.C. i 610) read in conjunction with the disclosure require- 
ments of the Federal Election Campaign Act; Does a corporation or 
union in setting up a segregated fund as permitted under § 610 
constitute a political committee subject to disclosure requirements? 
It has been argued that if a corporation, for example, solicits 
and forwards checks from its stockholders made out to a candidate 
or committee, it acts only as a conduit for contributions, and 
should not itself be subject to reporting requirements. rjnder this 
rationale, the eventual recipient of the fund would record and 
report the individual donations channeled through the corporate 
mechanism. There would be no report, however, that these contri- 
butions were actually the result of a stockholder solicitation drive, 
possibly massive, financed with corporation funds. This may, in 
fact, be legal. It is certainly not consistent, however, with the 
spirit of the disclosure law. 

If the corporation or labor union does not act merely as a 
conduit for funds designated by individual contributors for specific 



192 



-13- 



candidates or committees, but assumes control over the funds it 

solicits, then it clearly becomes a political committee (or the 

officers or employees who control the funds become a committee) , 

and it is subject to reporting requirements. 

Commentators disagree as to what, if any, loopholes remain in 

the new reporting provisions. "^ome argue that disclosure can be 

avoided by earmarking contributions made to a multicandidate 

committee (such as the Democratic and Fepublican Congressional 

Campaign Committees) to be used for a particular candidate. It has 

been reported that the National Committee for a Democratic Congress, 

V 
for example, handled over $415,000 in earmarked funds in 1972. 

Strictly construed, however, the law requires full disclosure, since 

earmarking funds would seem to constitute the equivalent of making 

a contribution in the name of another. And again, it is difficult 

to predict, absent judicial or regulatory guidelines, the precise 

manner in which the relatively new legislation will be construed 

by the federal courts. 

C. The Extension of Unsecured Credit 

A special form of campaign "contribution" is the furnishing of 
unsecured credit for the candidate's transportation, communications, 
and the like. The problem of such credit first became a public 
issue during the presidential campaign of 1968, when published 
reports indicated that the Democratic candidate. Senator Humphrey, 
had ended his campaign with rather sizable debts to certain airlines 



^7 Washington Post, December 1, 1972 at A 17, col. 2. 



193 



-14- 



and communications media. This issue was then considered by 
Congress in the debates on the Federal Election Campaign Act of 
1971. 

Section 401 of the Federal Election Campaign Act required 
three regulatory agencies, the Civil Aeronautics Board, the Federal 
Communications Commission and the Interstate Commerce Commission, 
to promulgate regulations with respect to unsecured credit given 
by any person regulated by the agency to a candidate for federal 
office. Each agency has now promulgated its regulations, and they 
differ somewhat. We have attached copies of the Regulations as 
Appendix B, and briefly review them here. 

The Federal Communications Commission has placed no flat 
prohibition on the extension of unsecured credit. Instead, it has 
required only that if a carrier extends such credit to one candi- 
date or his representative, it must be extended to all candidates 
"on substantially equal terms and conditions to all candidates... 
for the same office, with due regard for differences in the esti- 
mated quantity oc service." In addition, the FCC requires that the 
carrier give notice of intent to discontinue service within 7 days 
if bills are not paid within 15 days and that carriers with annual 
operating revenues in excess of $1,000,000 make semi-annual reports 
listing any amounts due and unpaid. 47 C.F.P. I 64.801: 

The Interstate Commerce Commission has expressly forbidden 
the granting of unsecured credit. The ICC regulations simply state 
that all agreements extending credit to federal candidates by 
persons subject to the Commission's regulations must be in writing 



34-966 O - 74 - Dt. 1 - 14 



194 



-15- 



and contain a detailed description of "the deposit, bond, collateral 
or other means of security, used to secure payment of the debt." 
49 C.F.P. ii 1325,1 and 1325.2, 

The Civil Aeronautics Board has adopted regulations which 
allow carriers to authorize unsecured credit but restricts the use 
of such credit in certain circumstances and calls for reports by 
both the carrier and the candidates. 14 C.F.F., g 374 a. 
At least once a month the carrier must send to the candidate a 
statement of current unsecured credit. The carrier also may not 
extend further credit for transportation or other purposes so long 
as there remains any "overdue indebtedness", as defined below. No 
credit may be advanced for transportation to a candidate in an 
election campaign subsequent to the effective date of the regulation 
without a written statement from the candidate seeking such credit. 
Finally, similar to the FCC regulation, the CAB requires that the 
carrier give notice of past indebtedness within 7 days after the 
debt becomes overdue, and if the debt is not paid with 14 days 
after the notice, no further unsecured credit may be extended by 
a regulated air carrier. 

II. Statutory Limitations on Campaign Spending 

The present limitations on the amounts that may be expended 
by candidates seeking federal office are set forth in the Federal 
Election Campaign Act, which we have already discussed in Part I. 
To review what we have said above, the Act applies not only to 
ganeral and special elections but also to all primaries, nominating 



195 



-16- 

conventions, and caucuses. All federal offices are included 
within its coverage and the Act defines a "political committee" as 
any individual or entity which accepts contributions or makes 
expenditures during a calendar year in an aggregate amount exceeding 
$1,000, 

Section 104 of the 1971 Act lists certain limitations with 
respect to political broadcasting. Prior to the Act, the only 
limitation in this area was the so-called "equal time" provision of 
the Communications Act of 1934, which basically required a broad- 
caster offering free time to a candidate for federal office to 
offer each of that candidate's opponents an equal amount of free 
time. The Act, by contrast, sets specific limitations on spending. 

The Act provides that any legally qualified candidate for 
federal office may not spend or have spent on their behalf 
for "communications media" in his election campaign a sum in dollars 
equal to 10 percent of the resident voting age population in the 



^/ The Act also explicitly covers the election of delegates to a 
constitutional convention. This extension of the Act would appear 
to be free of constitutional defect. See note V at page 2, supra . 

*V The Act defines "legally qualified candidate" as "any person 
who (A) meets the qualifications prescribed by tine applicable laws 
to hold the Federal elective office .,., and (B) is eligible under 
applicable state law to be voted for by the electorate directly or 
by means of delegates or electors." 1 102 (4). 

***_/ The provision which, in effect, limits the right of citizens to 
use the media in support of candidates of their choice is arguably 
violative of the citizens' First Amendment rights and may be 
challenged on this basis in the courts. 



196 



-17- 



state or district in which he or she seeks office, or the sum of 

$50,000, whichever is greater. "Communications media" under the 

Act includes all forms of broadcasting (i.e., radio and television) 

and newspapers, magazines, outdoor advertising facilities and 

telephones used by a candidate. The Act further requires that no 

more than 60 percent of the applicable sum be used for the use of 

broadcast stations. With regard to all nonpresidential primaries, 

including runoffs, the candidates are subject to the same statutory 

limitations as are in force with respect to federal elections. 

Candidates for the presidential nomination are in turn restricted 

to spending in each primary the total sums allowable to a candidate 

for Senator from the state in which the primary is being held. For 

purposes of the Act, a person is considered to be a presidential 

candidate during the period: 

(i) beginning on the date on which he (or such 
other person) first makes such an expenditure 
(or, if later, January 1 of the year in which 
the election for the office of President is held), 
and 

(ii) ending on the date on which such political 
party nominates a candidate for the office of 
President. 

Finally, the Act establishes a maximum rate for broadcasting charges 

for a period of 45 days preceding a primary and 60 days preceding 

a general or special election, and precludes the candidates from 

being charged more than a comparable use charge for nonbroadcasting 

communications and for broadcasting time prior to the commencement 

of the 45 or 60-day periods. 

^/ Section 104 of the Act also contains an escalation clause pegged 
to the consumer price index for increasing the spending limitations. 



197 



-18- 



Prior to the effective date of the 1971 Act, federal legisla- 
tion prevented individuals (but not political committees) from 
making contributions for any candidate for federal office in an 
aggregate amount each year in excess of $5,000. 18 U.S. C. i 608. 
In addition, political committees could not receive total annual 
contributions in excess of $3,000,000 or make expenditures in ex- 
cess of that sum for any one year. 18 U.S.C. i 609. And an 
individual candidate was allowed to personally spend no more than 
$25,000 for a senatorial campaign or $5,000 for a campaign for the 
House, plus personal, traveling, printing, postage, and other re- 
lated expenses. 2 U.S.C. § 248. 

The 1971 Act removed the $5,000 and $3,000,000 limitations, 
replacing them with the disclosure requirements discussed earlier 
in this memorandum. Furthermore, the Act placed a $50,000 limita- 
tion on expenditures from personal funds for the office of Presi- 
dent and Vice-President, increased the limitations on personal 
spending with respect to senatorial and congressional campaigns to 
$35,000 and $25,000, respectively, and applied this limitation to 
cover the candidate's immediate family as well as funds from his 
own person. The new Act also deletes the exception for those items 
such as travel and stationery that were specifically excluded from 
the maximum allowable sum under the pre-1971 legislation. 



^/ The definition of "political committee" here, too, was restricted 
to a committee operating in two or more states or as a branch of a 
national committee. 



198 



-19- 



III , Tax Consequences of Gifts to Political Comitiittees 
A. Gifts of Appreciated Property and the Status of 

Political Committees 
During the 1972 campaign the appropriate tax treatment of 
capital gains from the sale of appreciated property by political 
parties and committees emerged as a controversial issue and indir- 
ectly brought into the open the overall question of the tax status 
of political committees. The capital gains issue arose because 
both political parties were receiving contributions in the form 

of property, usually securities, with a relatively low tax basis 

*/ 
but high current market value. The campaign organization ordin- 
arily would sell these securities at the current market value and 
use the proceeds to finance the campaign. This arrangement per- 
mitted the contributor to obtain "political credit" for the full 
market value of the stock even though the original cost was rela- 
tively small. Alternatively, the donor would transfer the securi- 
ties from a personal brokerage account to the brokerage account 
of the political organization. The organization would then sell 
the stock, and return to the donor the amount of his original in- 
vestment. In this situation the contributor was able to avoid 
capital gains tax on the profit, for the Internal Revenue Service 
would allow both the donor and the political organization to avoid 
the capital gains tax when contributed stock was sold. The donor 

V Recent estimates suggest that the Finance Committee to Re-elect 
the President received approximately $8,850,000 and the McGovern 
organization received approximately $1,440,800 in securities. 



199 



-20- 



was not taxed on the appreciation because his donation was consid- 
ered a "gift" for income tax purposes. since there were no regu- 
lations or rulings specifically covering this situation, it is 
unclear why such gains were not taxed to the committee. 

This anomolous tax treatment of contributed property was 
presented to the American public in a September 27, 1972, article 
appearing in the Wall Street Journal, Shortly thereafter, on 
October 3, 1972, IRS issued a News Pelease (IR-1257) which announced 
that "/~i.^n view of the recent and common practice of transactions 
involving appreciated property for political purposes, the Internal 
Revenue Service must now consider what tax results arise where such 
property is sold." The Service then solicited briefs and comments 
on the subject and announced that public hearings would be held in 
connection with the issues involved. On August 1, 1973, after 
receiving twenty-eight submissions in response to the invitation 
and holding public hearings, IRS issued a Policy Statement in 
which it proposed a new course of action. The statement constitu- 
ting the current IRS position made basically four points: 

1) It had been the long-standing practice of the Service not 

to require political parties or committees to file tax returns, 
but that, the Revenue Service would now, since there was no 
Code provision on the subject, require such entities to file 
returns; 

2) That unincorporated political parties or committees may be 
treated for tax purposes as associations taxable as corpora- 
tions or as trusts (or possibly partnerships) depending upon 



200 



-21- 



standards to be developed; 

3) That the gross income of political parties or committees 
shall include interest and dividends from investments: income 
from any ancillary activities and gains from sales of appre- 
ciated property by the committees or parties: and 

4) that gains on the sale of appreciated property, net of any 
losses, should be included in income of political parties or 
committees to the extent provided in the Internal Revenue Code. 
The 'Statement went on to note that the Internal Revenue 3ervice 

would not seek to enforce the legal conclusions announced in the 
Policy Statement "until it appears that Congress has had an oppor- 
tunity to consider the problem specifically," In any event, the 
V rules and requirements were not to apply to sales of appreciated 

property prior to the date of the IRS statement of concern with the 
problem on October 3, 1972. And, finally, the Service announced 
that it would not require political parties and committees to file 
tax returns for years prior to 1972. 

Turning to the legal considerations, the Service, as we noted 
above, has for a number of years taken the position that transfers 
to political organizations are gifts for gift tax purposes. The 
Internal Revenue Code provides that the gift tax will apply to the 
extent that the transfer is not made " for an adequate and full 
consideration in money or money's worth." For income tax purposes, 
however, a transfer will be treated as a gift if it is given with 
"detached and disinterested generosity" and is motivated by "affec- 
tion, respect, admiration, charity or like impulses." Since gift 



201 



-22- 



tax law and income tax law are not jji pari materia , it might be 
argued that a political contribution is subject to gift tax as well 
as income tax. Assuming here that the current IR3 position that a 
political contribution is a gift for income tax purposes is correct, 
it follows that the donee political committee takes the donor's 
basis in the contributed property and would thus ordinarily realize 
gross income upon the sale of the appreciated property. 

The threshold question with respect to taxability of the in- 
come is whether a political party or committee is a taxable entity. 
Political parties are not specifically exempted from taxation under 
the Internal Revenue Code. Dviring the course of a 1965 case, the 
Government alleged that "all political parties... are taxable 
associations" under the Code. Furthermore, Rev. Proc. 68-19 states 
that "_^_i7f an unexpended balance of political funds is set aside 
in a separate bank account, the political candidate, committee, or 
organization holding such funds may report any income credited to 
the account on a U.S. Fiduciary Income Tax Peturn... and pay any 
tax shown by such return to be payable." From this language a 
strong implication may be drawn that a political party or committee 
is a taxable entity. Unfortunately, the Service cast doubt on this 
proposition in the August 1 statement. It noted that historically 
IRS has never required political parties to file tax returns. It 
also emphasized that Rev. Proc, 68-19 was directed principally at 
funds maintained for individual candidates and did not provide 



^/ Communist Party of the U.S.A. v. Commissioner, 373 F.2d 682, 684 
(D.C, Cir. 1967). 



202 



-23- 



definitive guidelines for political parties or committees. And 
it further set forth the proposition that there are no definitive 
guidelines which show whether, and to what extent, deductions are 
allov;able against income reported by a political party or committee. 
Apparently, the current IRS position is that the administrative 
"history" of not requiring political parties to file returns is a 
stumbling block to taxation of capital gains from the sale of 
appreciated property. 

In conclusion, there is some controversy as to the past and 
present approach of the Internal Revenue Service toward taxation of 
gain resulting from the sale of appreciated property given to 
political committees. The view that the donor should be taxed on 
the gain is supported by the fact that ordinary money contribu- 
tions are made in after-tax dollars. Another view is that the poli- 
tical committee itself should pay tax on the gain. Here, there are 
diverse opinions as to the best legal theory to support taxation of 
political committees. It is not clear, for example, whether a poli- 
tical committee should be taxed as a corporation, a trust or an 



37 This view is suggested by Rev. Rul. 60-370, 1960-2 Cum. Bull, 
203 and the district court ruling in Rollins v. United States , 302 
F.Supp. 812 (W.D. Tex. 1969). Contra , Jacobs v. United States , 280 
F.Supp. 327 (S.D. Ohio 1966): Sheppard v. United States . 361 F.2d 
972 (Ct. of Claims 1966). 

One problem is that it is inconsistent with the general prin- 
ciple that gain on gifts is taxed to the donee rather than the donor 
Perhaps, however, this problem could be resolved by providing that 
campaign contributions could only be made in the form of money, and 
thus necessarily would represent a taxable gain (or loss) to the con- 
tributor who had sold his property in order to contribute the pro- 
ceeds. 



203 



-24- 



association. What is clear is that none of the existing legal 
theories of taxation can readily be applied to political committees 
without modification. Furthermore, absent statutory clarification, 
it is possible that an attempt to tax political committees via 
exemptions to or modifications of existing legal theories could 
create a spill-over in which the exemptions engulf the rule. In 
this area, then, there would appear to be four possible issues for 
congressional resolution. These are; 1) T^Thether a political con- 
tribution is a gift for gift tax purposes, ?) ''Thether tax on capi- 
tal gains from the sale of appreciated property should be paid by 
the recipient political organization or by the donor, 3) Whether 
a political party or committee is a taxable entity and, if so, 
whether it should be taxed as a corporation, a trust, an associa- 
tion or another organizational entity, and 4) ViTiether, and to what 
extent, expenditures by a political organization are deductible 
from income. 

B. "The Gift Tax Exclusion 

The gift tax was enacted to prevent evasion of the estate tax 
by means of inter vivos transfers. Although the tax originated as 
a backdrop for the estate tax, it has long been the IR" position 
that transfers to political organizations are gifts subject to the 
gift tax. 

Generally, the Internal Revenue Code provides for a gift tax 
exclusion in the amount of $3,000 per donee. In addition, each 
taxpayer is entitled to a $30,000 lifetime exclusion over and above 



204 



-25- 



the $3,000 annual exclusion. The Supreme Court in Helvering v. 
Hutchinqs , 312 U.S. 393 (1940), held that the taxpayer was entitled 
to one exclusion for each beneficiary of a trust to which he had 
made a gift. The Court observed that a literal approach to the 
exclusion would lead to use of multiple trusts as conduits estab- 
lished to avoid the gift tax. To avert this possibility, the 
Internal Revenue Code subsequently was amended to disallow such an 
exemption in the case of "every gift in trust." Therefore, multiple 
trusts cannot be used to avoid the gift tax on gifts to private 
individuals. In Heringer v. Commissioner , 235 F.2d 149 (9th Cir. 
1956), cert, denied . 352 U.S. 927 (1956), the Hutchinqs rule was 
extended to apply to corporations as well as trusts. 

Armed with the Hutchings and Heringer cases as precedent, the 
Service in 1972 was faced with the question whether each political 
committee supporting a candidate for office should be entitled to a 
separate $3,000 exclusion. This approach, if adopted, might appear 
inconsistent with the rule that it is the beneficiary of a gift 
that is significant. Historically, IRS had allowed a political 
contributor to avoid the gift tax by dividing a large gift into 
$3,000 fragments to be disbursed to any number of "dummy" committees, 
each one entitled to the $3,000 annual exclusion. However, with the 
proliferation of such committees just prior to the 1972 elections, 
IRS issued Rev. Rul. 72-355 on July 17, 1972. 

Revenue Ruling 72-355 basically did not establish effective 
guidelines to prevent the use of multiple committees to avoid the 



205 



-26- 



gift tax. Rather, the Puling simply provided for the aggregation 
of dummy committees for purposes of the exclusion in the following 
manner; 

In general, political organizations will 
be recognized as separate donees for purposes of 
the annual gift tax exclusion. T«^ere, however, 
political organizations have essentially the 
same officers and supported candidates and no 
substantial independent purpose, the organizations 
will be treated as one and gifts to them by an 
individual will be aggregated for purposes of 
section ?503 (b) of the Code, For purposes of this 
paragraph, the officers or supported candidates 
will not be deemed to be essentially the same if 
at least one third of the officers or candidates 
are different in each of the committees. 

Political organizations can easily avoid this Fuling by estab- 
lishing committees which have at least one-third of their officers 
or candidates distinct from the makeup of all other committees. In 
fairness to the Service's position, the problem of formulating 
standards for distinguishing between a dummy committee and a valid 
one is evident. For example, should a committee be considered 
valid simply because it has full-time employees, rented office space, 
or a certain number of contributors? But while there may be diffi- 
culty in employing any rigid standards in this area, the problem 
merits further consideration aimed at eliminating the present tax 
avoidance devices. 

Perhaps the question of multiple exclusions could be resolved 
by a re-evaluation of the gift tax itself. In the absence of a 
Code provision supporting the current IRS position, the better view 
may be that the gift tax should not apply to political contributions 
at all. This approach is supported by the rationale in Stern v. 



206 



■27- 



United states . 436 P. 2d 13?7 (5th Cir. 1971), a lower court ruling 
affirmed by the U.S. Court of Appeals for the Fifth Circuit. Edith 
Gtern was a taxpayer who was affiliated with a group of individuals 
who sought to promote a slate of candidates dedicated to protecting 
the interests of the group. The group collected contributions from 
its members and made campaign expenditures for handbills, posters, 
sample ballots, and newspaper and television advertising. The 
expenditures of the group were held to be full and adequate consid- 
eration for the contributions. Although not made in the ordinary 
course of business by the group, the contributions were not taxable 
gifts to the extent they were "bona fide, at arm's length, and free 
from donative intent." IRS did not appeal the case beyond the 
Court of Appeals, but the Service has limited application of the 
rule to the Fifth Circuit. The significance of the Stern case lies 
in the realization that most political contributors, like Mrs. Stern, 
are making bona fide, arm's length contributions free of the dona- 
tive intent which accompanies gifts made outside the political area. 

Finally, it seems fair to conclude that in addition to elim- 
inating the need for multiple committees to avoid the gift tax. 
Congressional action in removing the gift tax from political con- 
tributions would have the salutory effect of simplifying adminis- 
tration of the reporting and disclosure laws. In this context, it 



207 



-28- 



should be kept in mind that the gift tax is a relatively insignifi- 
cant source of revenue for the federal government. 



Samuel Dash 
Chief Counsel 

David M. Dorsen 
Assistant Chief Counsel 

Donald S. Surris 
Assistant Counsel 

W. Dennis Summers 
Assistant Counsel 

Martha Talley 
Bruce Quan 
Decetrtoer, 1973 Research Assistants 



209 



III. Presidential Subpoenas 



34-966 O - 74 - pt. I - 15 



211 



UNITED STATES OF AMERICA 
CONGRESS OF THE UNITED STATES 
SUBPOENA DUCES TECUM 

To: President Richard M, Nixon, The White House, Washington, D. C. 

Purs uant to lawful authority, YOU ARE HEREBY COMMANDED 
to make available to the SENATE SELECT COMMITTEE ON 
PRESIDENTIAL, CAMPAIGN ACTIVITIES of the Senate of the United 
States, on Thursday, July 26, 1973, at 10:00 o'clock a, na. , at their 
committee room, 318, Old Senate Office Building, the following: 

Any and all records, or copies of records including but not 
limited to, documents, logs, records, memoranda, correspondence, 
news summaries, datebooks, notebooks, photograph;s, recordings or 
other materials relating directly or indirectly to the attached list of 
individuals and to their activities, participation, responsibilities or 
involvement in any alleged criminal acts related to the Presidential 
election of 1972 which the Conamittee is authorized to investigate pursuant 
to Senate Resolution 60 including but not limited to, the break-ins of the 
Democratic National Committee offices on or about May 27, 1972 and on 
or about June 17, 1972, the surveillance, electronic or otherwise of said 
offices, and efforts made to conceal information or to grant executive 
clemency, pardons or imnnunity and payments made to the defendants 
and/or their attorneys relating to the above stated naatters. 



212 



Hereof fail not, aa you will answer your default under the 
pains and penalties in such cases made and provided, 

TO 'tCuTtt 6 I . ltd l-n / S fe ^0 I L ,^/< H h I l ^u yjU ^ 

to serve and return. 

Given under my hand, by order of the 
committee, this 23rd day of July, in 
the year of our Lord one thousand nine 
hundred and seventy-three 



Chairman, Senate Select Corrfmittee on 
Presidential Cannpaign Activites, 



213 

MitcheU, John 
Moore, Richard A, 
Shumway, DeVan 
Strachan, Gordon 
Timmons, William 
Young, David 
Ziegler, Ron 



214 

Buchanan, Patrick J« 

Butterfield, Alexander P^ 

Campbell, Jolin 

CaxilfLeld, Jack 

Chapin, DwLght 

Colson, Charles 

Dean, John 

Ehrlichman, John 

Fielding, Fred 
Haldeman, H. Robert 
Higby, Larry- 
Howard, Richard 
Htmt, E.-i Howard 
Kehrli, Bruce 
Krogh, Egil 
LaRue, Frederick 
Liddy, G, Gordon 
Magruder, Jeb Stuart 



215 









u/vfi'Jcp Aj^icv/^ ■ ... •, . ^ 



-5ifx- /'^^.r^-^ 







^^^ 



^..H^^^ ^6 -/^ /%^^^i^sr 



216 

UNITED STATES OF AMERICA 
CONGRESS OF THE UNITED STATES 
SUBPOENA DUCES TECUM 

To: President Richard M, Nixon, The "White House, Washington, D. C, 

Pursuant to lawful authority, YOU ARE HEREBY COMMANDED 
to make available to the SENATE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES of the Senate of the United 
States, on Thursday, July 26, 1973, at 10:00 o'clock a. m, , at their 
committee room, 318, Old Senate Office Building, the following: 

Any and all original electronic tapes and recorded telephone 
messages of the below listed conversations or oral communications, 
telephonic or personal, between President Nixon and John Wesley 
Dean ,111, discussing alleged criminal acts occuring in connection with 
the Presidential election of 1972 which the Coinmittee is authorized to 
investigate pursuant to Senate Resolution 60 including but not limited to 
the break-ins at the Democratic National Committee offices on or about 
May 27, 1972, and on or about June 17, 1972, and any efforts made to 
conceal information or to grant executive clemency, pardons or immiunity 
and payments made to the defendants and/or their attorneys relating to the 
above incidents at the dates and tim,.es of the attached list of conversations: 



217 



September 15, 1972 (personal) 5:27 p. jn. .to 6:17 p. iti, 

February 28, 1973 (personal) 9:12 a.m. to 10:23 a,m, 

Marchl3, 1973 (personal) 12:42 p. m. to 2:00 p. m. 

March 21, 1973 (personal) 10:12 a.m. to 11:55 a.m. 

and 5:20 p. m. to 6:01 p.m. 

Hereof fail not, as you wLll answer your default under the 
pains and penalties in such cases made and provided, 

to serve and return. 

Given under my hand, by order of the 
committee, this 23rd day of July, in the 
year of our Lord one thousand nine hvindred 
and seventy -three. 



Chairman, Senate Select Committee on 
Presidential Campaign Activites 



218 






^, i. . . 



'-7 







219 



UNITED STATES OF AMERICA 
CONGRESS OF THE UNITED STATES 
SUBPENA DUCES TECUM 
To: President Richard M. Nixon, individually and as President of 
the United States, The White House, Washington, D. C. 

Pursuant to lawful authority, YOU ARE HEREBY COMMANDED 
to make available to the SENATE SELECT COMMITTEE ON PRESI- 
DENTIAL CAMPACGN ACTIVITIES of the Senate of the United States 

on the day of January, at 10 a. m. at Room 1418, 

Dirksen Senate Office Building, all of the materials in your custody 
or possession, or the possession or custody of the Executive Office 
of the President, or The White House, actual or constructive, 
listed in Attachment A, hereto. 

Hereof fail not, as you will answer your default under the pains 
and penalties in such cases made and provided. 

To: to serve and 

return. Given under my hand, by 
order of the Committee, this / / '^ 
Served on: day of December in the year of our 

By: Lord one thousand nine hundred and 

Time: seventy-three. 



Date: 
Place: 



Chairman, Senate Select CommiUee 
on Presidential Campaign Activities- 



220 



ATTACHMENT A 

Any and all dociunents, materials, records and 
copies thereof including, but not limited to books, 
files, ledgers, books of accounts, correspondence, 
receipts, appointment books, diaries, memoranda, checks, 
check stubs, deposit slips, bank statements, petty cash 
records, photographs and negatives, recordings, notes, 
telephone records, credit card vouchers and records, airline 
and railfoad records, relating directly or indirectly, 
in whole or in part to: 

(1) The break-ins on or about May 27, 1972, and 
on or about June 17, 1972, suid electronic surveillance 
at the Democratic National Committee Headquarters; 

(2) The planning or execution of any break- in 
ajid/or electronic surveillance at the office, home, or 
other premise of Herman Greenspun; 

(3) Any communications relating to concealment 

and suppression of information and evidence of the break- 
ins and electronic surveillance of the Democratic National 
Committee offices on or about May 27, 1972, and on or 
about June 17, 1972^ 

(4) Any offers of or authorizations to offer 
executive clemency to Messrs. James McCord, G, Gordon 



221 



Liddy, E. Howard Hunt, Bernard L. Barker, Eugenio R, 
Martinez, Frajik A. Sturgis, Virgillo R, Gonzales, 
or any members or former members of President Nixon's 
White House staff or the Committee to Re-elect the 
President; 

(5) The payment or authorizations of payment of 
money to Messrs. Llddy, McCord, Hvmt, Barker, Martinez, 
Sturgis, or Gonzales; . 

(6) Any Instructions given or Involving any 
official of the Department of Justice, Including 
officials of the FBI, relating. In whole or In part, 
directly or Indirectly, to any limitation on the 
Investigation of the events Involving the break- In 
and electronic surveillance at the Democratic National 
Committee Headquarters at the Watergate ajid related 
events prior and subsequent thereto, or any limitation 
on the prosecution of those responsible for such events; 

(7) Any discussion or Instructions given or 
Involving the Central Intelligence Agency (CIA) (or 
any official thereof) relating. In whole or In part, 
directly or Indirectly, to any possible Involvement by 
the CIA (or any official thereof) or use of any CIA funds 
In any financing of or payment of money to Messrs. Llddy, 
McCord, Hunt, Barker, Martinez, Sturgis, and Gonzales 



222 



after June 1, 1973* any contacts, commvinlcatlons, 
meetings, or telephone calls between the CIA (or any 
official thereof) and the Federal Bureau of Investigation 
(or any official thereof) or the Department of Justice 
(or any official thereof) related, in whble or in part, 
directly or indirectly, to any Government investigation 
of the events involving the break- in and electronic 
sunreillance at the Democratic National Committee 
Headquarters at the Watergate, including but not 
limited to any Government investigation of possible 
Republican campaign contribution which allegedly 
passed through Mexicd; 

(8) Any discussion or instructions given or 
involving perjury or possible perjury of anyone 
connected with the investigation of the events 
involving the break-in and electronic svirveillance at 
the Democratic Committee Headquarters at the Watergate 

and related events prior and subsequent thereto, including^ 
but not limited to_,the break- in at the office of the 
psychiatrist of Daniel Ellsberg; 

(9) Any discussion or instructions given or 
Involving the "Responsiveness Program" or similar 
program or prograuns however designated from the period 
of January 1, 1971, to November 7, 1972 j 



223 



(10) The drafting of any public statements on the 
break-in and electronic surveillance at the Democratic 
National Committee Headquarters at the Watergate and 
related events prior and subsequent thereto, including, 
but not limited to, first and subsequent drafts of the 
President's statements ajid speeches made on August 29, 
1972; April 17, 1973; April 30, 1973; May 9, 1973; 

May 22, 1973; and August 15, 1973; 

(11) ' The investigation conducted by John D. 
Ehrlichmsin of the "Watergate Incident" at the request 
of the President and reports thereof to the President 
and/oT to any other individual Including but not 
limited to that made to the President on April l4, 1973; 

(12) The taping of any conversation between the 
President and John W, Dean on April 15, 1973, or the 
taping of any recollection thereof as referred to by 

the President in his conversation with Assistant Attorney 
General Henry Petersen on or about April 15, 1973, 
including but not limited to any tape, dictab^l t, 
transcripts, or notes relating to this conversation; 

(13) The report from Assistant Attorney General 
Henry Petersen to the President concerning the Watergate 
investigation including but not limited to the 
memorandum submitted to the President on or about 



224 



April 15, 1973; 

(14) All "Political. Matters Memoremda" and sai 
"tabs," "attachments," or "appendices" thereto from 
Gordon Strachan to H. R. Haldeman from January 1, 1971> 
to December 31, 1972; 

(15) As identified in exhibit #106 in the hearing 
"in Re: Subpenas Duces Tecum Issued to President 
Richard M. Nixon for Production of Tapes" before Judge 
Sirica, the following contents of H. R, Haldeman files 
labeled: 

"Jan-Mar 1973 Noted of Haldeman? ]( 

"April 1973 Notes of Haldeman"; 

"Haldeman Notes Apr-May- June »72"; 

"Peb/Mar 73"; 

"April 73"; 

"Strachan Chron HRH Book #111 Dec 1971"; 

"Chron file Strachan Memo to HRH June 1971"; 

"Chron file Strachan HRH only Book #1 March & April"; 

"HRH Talking Papers March/April 1972; 

"Chron file Strachan, Mar 72 A-L (1). Mar 72 M-Z 
(2), Apr 72 A-L (1), Apr 72 M-Z (2)"; 



"13-Camp, 12-17/- 31-71"; 
"Pile #21, Strung (sic) file"; 



225 



"HRH & AG Meeting 6/30/71"; 

"File #13, Straugh (sic) file"; 

"Part IV March 3-28, 72 l8-campalgn"; 

"HRH Talking Papers 1971"; 

"Talking Papers 1972"; 

"Talking Papers-Feb/Mar 1972"; 

"H to AG 1-31-72"; 

"Campaign 72 #l4 Jan 1"; 

"Campaign 72 #15"; 

"HRH Political File (Personal-Confidential) April 1971"; 

"Jack Gleason Report #l6 through Nov. 6, 1970 (3 pgs)"; 

"Jack Gleason Report #15 throvigh Oct. 31, 1970 (3 pgs)"; 

"Jack Gleason Report #l4 thro\igh Oct. 23, 1970 (2 pgs)"; 

"Jack Gleason Reports #1 through #13"; 

"Memoranda for H. R. Haldeman from Charles Colson, subject ITT 

(16) A memorand\im dated Jiine 30, 1971, from Mar. 20/72;' 

Herbert KLein to H. R. Haldeman. Haldeman on the 
subject of ITT's $400,000 support for the Republican 
Convention; 

(17) A memorandu of April, I969, from Deputy- 
Attorney General R. KLeindienst and Assistant Attorney- 
General McLaren to J. D, Ehrlichman regarding ITT; 

(18) A memorandum of April, 1970, from T. Mullen 
to Assistant Attorney General R. McLaren regarding ITT; 

(19) A memorandum of September, 1970, from J. D, 
Ehrlichman to Attorney General J. Mitchell regarding ITT; 



"^d-Qfifi O _ 74 _ «t 1 _ ic 



226 



(20) A memorandum dated May 5, 1971> from J. D. 
Ehrlichmaji to Attorney General Mitchell regarding ITT; 

(21) A memorandum on or about May 5* 1971* from 
J, D. Ehrlichman to the President regarding ITTj 

(22) Duties and/or services of John Caulfield on 
behalf of Richard M. Nixon including but not limited 
to those for which he was compensated and thanked on 
or about December 25, 1970; 

(23) '"Project Sandwedge" or any and all private 
security or investigative organizations or plans relating 
thereto involving John Caulfield, Vernon Acree, Myles 
Ambrose, Roger Barth, eind/or Joseph Woodsy 

(24) Lawrence O'Brien and any corporation, 
partnership, or business entity owned in whole or in 
part by Lawrence O'Brien, including, but not limited 
to, the memorandum from H, R. Haldeman to John Dean, 
subject Larry O'Brien, dated on or about January 8, 
1971, and the files on Larry O'Brien maintained by 
H, R. Haldeman, Rose Mary Woods, John Dean, John 
Ehrlichman, and John Caulfield; 

(25) Any or all records and documentation of access 
to the original find copies of t&pe recordings of 
Presidential conversations, from the installation of 
the taping system to December 19, 1973, including, but 
not limited to, the documentation of access referred to 
in Mr. Buzhardt's letter to Mr. Cox of Jvay 25, 1973; 



227 



(26) Any and all records and dociimentation of 
access to the files of H, R. Haldeman, J. d» Ehrlichman, 
John W. Dean, smd Charles W, Colson from the date of the 
termination of their employment with the Executive Office 
of the President to the present; 

(27) Copies of all Executive Protective Service 
Clearance Form #21 forms from the San Clemente Presidential 
Compound for July 3, ^, and 5, 1970; 

(28) 'Executive Protective Clearance Form #21 forms 
for the White House, the Executive Office Building, Camp 
David, £uid the San Clement^ and the Key Biscayne 
Presidential Compounds for Richard Danner, Robert 
Maheu, Charles G. Rebozo, Robert Abplanalp, I. G. 
"Jack" Davis, Jajnes Crosby, Seymour Alter, Franklin 

S. DeBoer, from January 1, I969, to the present; 

(29) Any and £ill records of contributions to 

the Presidential Campaign of 1972 and/or of any compensa- 
tion to Richard M, Nixon maintained by Rose Mary Woods; 

(30) "President Richard Nixon's Daily Diary" for 
January 1, 1970, to December 19, 1973; 

(31) Telephone records from January, 1971* to 
December 15, 1973, for all phones in the fpllowing 
locations : 

The Oval Office 

The President's Executive Office Building Office 



228 



The Lincoln Sitting Room 

The Second Floor Residence in the White House 

500 Bay Lane and 516 Bay Lane in the Key Biscayne 

Compound 
Casa Pacifica 
Aspen Cabin, Camp David 
Dogwood" Cabin, Camp David 
Mr. Haldeman's office andl^home extension 
Mr, EJiirlichman's office and home extension 
Mr, Bull's office and home extension 
Miss Woods office and home extension 
Mr, Halg's office and home extension 
Mr, Richard Moore's office and home extension 
Mr, Colsorfsoffice and home extension 
Mr, Hvint's office and home extension 
Mr. Hlgby's office and home extension 
Mr, Strachan's office and home extension 

(32) Any relationship between F. Donald Nixon 
and any of the following individuals or organizations; 
Charles Adams, Emllo Aguado, Arthur Blech, E, L, 
"Jack" Cleveland, Gene Bowen, Howard Cerny, R. W. 
Chambers, James Crosby, Mr, Dahl, I, G, "Jack" Davis, 
John Desin, Henry Eddy, John Ehrllchman, Robert Finch, 
Virgil Gladleux, Louis Gonzalez, Rolando Gonzalez, 
Herman Greenspun, Mr, Grotsis, William Haddad, Anthony 
Hatsls, Dennis Hill, Patrick Hillings, Barry Hallqmare, 
William Hallomare, Howard Hughes, Herbert Kalmbach, 



229 



Herbert Klein, Dr. Isaac Newton Kraushaar, Frederick 
LaRue, Norman Locatis, Robert Maiheu, John Meier, Cliff 
Miller, Meyer Minchen, John Mitchell, Ray Murphy, 
Rita Murray, Thomas Murray, Charles G, Rebozo, Mr, Thatcher, 
Leonard Traynor, John Suckling, Robert Vesco, ABC 
Gladieux Corporation, Air West Airlines, Atlas Corporation, 
Basic Industries, Inc., Georgetovm Resources, Hallamore 
Homes, Hughes Air Corporation, Hxoghes Tool Company, 
International. Dye Foundation, J-TEC Associates, 
Robert A. Maheu Associates, Meier-Murray Productions, 
National Biff -Burger Systems, Inc., National Bulk 
Carriers, Nevada Environmental Fovindation, Richard 
Nixon Foundation, Oceanographic Fund, Inc., Ogden Foods, 
Resorts International, San/Bar Electronics, Separation 
Recovery Systems, Inc., Summa Corporation, Toledo 
Mining Compsmy; 

(33) Any memorajida or reports on Donald A; 
Nixon, F, Donald Nixon, or Edward Nixon or their 
activities, including, but not limited to any memoranda or 
reports prepared by John Ehrlichman, Johr. Iic.dJi, John 
Mitchell, Fred LaRue, Stanley McKiernan, or Cliff Miller; 

(34) All logs, summaries, transcripts, tapes, 

and reports associated with any electronic and/or physical 
surveillances of F. Donald Nixon; 

(35) The solicitation, negotiation, delivery 
and/or storage of a $100,000 contribution to the 
Presidential Campaign of 1972 from Howard Hughes or 



230 



the Hughes Tool Company to Charles G. Rebozo and/or 
the return of said contribution to Howard Hughes, the 
Hughes Tool Company, Summa Corporation, Chester Davis, 
or any agent, representative, or designee of the Davis 
and Cox law firm; 

(36 ) Any memoranda to or from Richard M, Nixon, 
Charles G, Rebozo, John Mitchell, John D, Ehrlichman, 
H, R, Haldeman, Charles W, Colson, Herbert Kalmbach, 
Herbert Klein, John Dean, John Caulfield, Rose Mary Woods, - 

Richard KLeindiesnt, Richard McLaren relating to the 
acquisition of Air West by the Hughes Tool Company 
(hereafter known asHTCo), the acquisition of the 
Dvmes Hotel in Las Vegas, Nevada by HTCo, the resolution 
of litigation between Trans World Airlines and HTCo, 
and the cessation of nuclear testing in Nevada; 

(37) The actual copy of each daily news svunmary 
from January 1, 1972, to December 19, 1973, that was 
transmitted to the President and upon which he made hand- 
written notations or instructions, whenever, such hemd- 
written notitions or Instructions relate, directly or 
indirectly, in >tole 6r in part, to the events, individuals, 
and organizations referenced in items 1 throxigh 36- above. 



231 



UNITED STATES OF AMERICA 
CONGRESS OF THE UNITED STATES 
SUBPENA DUCES TECUM 



To: President Richard M, Nixon, The White House, Washington, D. C, 

Pursuant to lawful authority, YOU ARE HEREBY COMMANDED 
to make available to the SENATE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES of the Senate of the 
United States, on '2fi.cember--:2 r,hl973j^- at 10 a.m., at 
Room l4l8 Dirksen Senate Office Building, all materials 
listed on Attachment A, hereto. 

Hereof fail not, as you will answer your default 
under the pains and penalties in such cases made and 
provided. 



TO 



to serve and return. 



Given under my hand, by order 
of the Committee, this >3»«= day 
of December in the year of our 
Lord one thoussind nine hundred 
and seventy- three. 



Served on: 
By: 

Time: 
Date: 
Place: 



Chairman, Senate Select Committee 
on Presidential Campaign Activities 



232 



ATTACHMENT A 

All records in your personal custody or in the custody 
or control of the Executive Office of the President or the 
White House, including any tape recording, summary or any o 
other record, whether written or otherwise, for the period 
January 1, 1970, to and including December 17, 1973, re- 
lating to: (A) price support levels for milk and dairy " 
products; (B) import quotas for dairy products; (C) meetings 
between the President and representatives of dairy farmer 
groups in September, 1970, on March 23, 1971, and in September, • 
1971; (D) a meeting on March 23, 1971, between the President 
and certain Presidential advisors concerning milk price 
supports; (E) political contributions by the dairy industry, 
dairy farmers or dairy political groups or trusts to the 
Presidential Campaign of 1972; (F) the case of Nader v. Butz , 
civil action number 148-72, currently pending before the United 
States District Court for the District of Columbia; (G) an 
investigation by the Department of Justice of Associated Milk 
Producers, Inc., and a subsequent civil antitrust suit filed by 
the Department on or about February 1, 1972, and currently 
pending against Associated Milk Producers, Inc.; (H) an audit 
or investigation conducted by the internal Revenue Service of 
the income tax return of Milk Producers, Inc.; and (I) con- 
versations, meetings or other 



233 



communications between the President and Presidential 
advisors, including cabinet members, relating to matters 
(A) through (H) ; including but not limited to the following: 

1. A memorandum dated January 18, 1971, concerning the 
1971 - 1972 dairy price support program. Attached to this 
memorandum are various charts and economic information, and 
a Department of Agriculture memorandum regarding dairy price 
supports dated January 7, 1971. Also attached is a memorandum 
of the Office of Management and Budget (0MB) dated March 3,. 1971, 
setting forth various recommendations and considerations with 
respect to the 1971 - 1972 price, support program. 

2. A memorandum, dated February 2, 1971, between officials 
within the White House Office concerning a proposed meeting by 
the President with leaders of, the dairy industry. 

3. A memorandum, dated February 2, 1971, between officials 
within the V/hite House Office concerning a proposed meeting by 
the President with leaders of the dairy industry. 

4. A memorandum, dated February 4, 1971, between officials 
within the White House Office concerning a proposed meeting by 
the President with leaders of the dairy industry. 

5. A memorandum, dated February 16, 1971, between officials 
within the White Hous e Office concerning a proposed meeting by 
the President with leaders of the dairy industry. 



234 



6. An undated document containing notes prepared by a 
White House Office official concerning a proposed meeting by 

the President with leaders of the dairy industry. i 

.1 

7. A memorandum, dated February 24, 1971, between 
officials within the White House Office concerning a proposed 
meeting by the President with leaders of the dairy industry. 

8. A memorandum, dated March 3, 1971, between officials 
within the White House Office to which is attached another 
memorandum, dated February 24, 1971, between officials in 
the White House Office concerning a proposed meeting by the 
President with leaders of the dairy industry. 

9. A memorandum dated March 3, 1971, between personnel 
in the Office of the Council of Economic Advisors. 

10. A memorandum, dated March 4, 1971, from the Assistant 
Director, 0MB, to the Director, 0MB, and a Presidential assistant 
and regarding the dairy price support program. 

11. A memorandum, dated March 5, 1971, from the Assistant 
Director, 0MB, to the Director, 0MB, copies of which were trans- 
mitted to Presidential assistants, concerning the dairy price 
support program. 

12. A memorandum, dated March 5, 1971, from officials 
within the White House Office. 

13. A memorandum, dated March 4, 1971, from the Director, 
OMB, to a Presidential assistant regarding the dairy price 
support program. 



235 



14. An undated memorandum between personnel within the 
White House Office to which is attached a copy of the March 4, 
1971, memorandum from the Assistant Director, 0MB, to the 
Director, 0MB, and a Presidential assistant, previously referred 
to in paragraph 10 above. 

15. A memorandum from a Presidential assistant, dated 
March 5, 1971, to another Presidential assistant and Director, 
0MB, regarding the dairy price support program. • 

16. A memorandum 'from a Presidential assistant to another 
Presidential' assistant and the Director, 0MB, dated March 5, 
1971, regarding dairy price supports. 

17. A memorandum from a Presidential assistant to another 
Presidential assistant, dated March 5, 1971, regarding the dairy 
price support program, to which is attached a typed restatement 
of the same memorandum. 

18. A memorandum from a Presidential assistant to another 
Presidential assistant and the Director, 0MB, dated March 5, 
1971, to which is attached the March 4, 19 71, memorandum 
previously referred to in paragraph 10. 

19. A memorandum from a Presidential assistant to the 
Director, 0MB, dated March 9, 1971, regarding the dairy price 
support program. 

20. A memorandum for the President, dated March 9, 1971 
from the Director, 0MB. 



236 



21. Memorandum dated September 16, 1970, from one White 
House assistant to another with attached handwritten page. 

22. A memorandum from a Presidential assistant to another 
Presidential assistant, dated March 12, 1971 regarding the 
dairy price support program. 

23. A memorandum from a Presidential assistant to another 
Presidential assistant, dated March 18, 1971, to which is attached 
a memorandum, dated March 16, 1971, from a Presidential assistant 
to another Presidential assistant regarding the dairy price 
support program. 

24. A memorandum, dated March 19, 1971, from a Presidential 
assistant to another Presidential assistant regarding the dairy 
price support program. 

25. A memorandum for the President from a Presidential 
assistant, dated March 22, 1971. Attached to this memorandum 
are a list of prospective attendees at a Presidential meeting 
with dairy industry leaders, a proposed statement to be made 
by the President at such meeting , and a fact memorandum 
prepared by the Department of Agriculture concerning the dairy 
industy. 

26. A memorandum, dated March 23, 1971, from a Presidential 
assistant to another Presidential assistant regarding the meeting 
with dairy industry leaders. 

27. A memorandum, ca ted March 23, 1971, from a Presidential 
assistant to the President's file concerning the President's 
meeting with dairy industry leaders. 



237 



28. A memorandum from a Presidential assistant to 
another presidential assistant, dated March 24, 1971, concerning 

i 

the possibility of the President's attending an annual meeting 
of a dairy farmer cooperative association. 

29. A memorandum from the Undersecretary of Agriculture 
to the Assistant Director, 0MB, dated March 24, 1971, to which 
is attached a proposed press release. 

30. A memorandum for the record from a Presidential assistant- 

r 

dated March 25, 1971, regarding the President's meeting with 
dairy industry leaders on March 23, 1971. 

31. A memorandum from one Presidential assistant to 
another Presidential assistant dated December 18, 1970, discussing 
the dairy industry and its representatives. • 

32. A memorandum dated March 23, 1971, from a Presidential 
assistant to the President's file concerning a Presidential 
meeting with other governmental officials involving decision , 
making with respect to the dairy price support program. 

33. A mcmorand'-':n, '^rtcd .J''"^.y 1-''/ 1071, '' ■ \ \ ' ' ' •■ -'il 
assistant to another Presidential assistant regarding a 
Presidential address to a dairy farmer cooperative association. 

i:'-^- , '\ .,.;..:. .n'-''vvn, ^ Gated Ovly 22, l:)7l, rr' 7;i a Pr';:.si -If'.niial 
aciii.s.tant to another" Prasidential assistant ^vhich rGf(-:rs, riir.ong 
other things, to the dairy price support program. 



238 



1 

35. A memorandum from a Presidential assistant to another 
Presidential assistant, dated July 27, 1971, regarding a 
proposed speech by the President to a dairy farmer cooperative 
association to which is attached a memorandum containing various 
considerations for use in the proposed speech. 

36. A memorandum, dated November 22, 1971, from a Presi- 
dential assistant to |the President's file concerning the 
dairy price support program. 

37. A memorandum from a Presidential assistant to the 
file, dated March 8, 1972, regarding the dairy price support 
program. 

38. A memorandum from a Presidential assistant to another 
Presidential assistant, dated March 7, 1972, regarding the dairy 
price support program. 

39. A memorandum, dated March 6, 1972, from a Presidential 
assistant to another Presidential assistant regarding the dairy 
price cMoport progrcmn. 

40. A memorandum from a Presidential assistant to anotlier 
Presidnntlal assistant, dated March 9, 1972, regarding the 
'^■■'•i.yr/ , ' ' ^ , ct p:-.(:;'j>:am. 



239 



41. Memorandum from one Presidential assistant to 
another dated August 8, 1970. 

42. A memorandum from the Secretary of Agriculture 
to a Presidential assistant, dated July 19, 1972. 

43. Memoranda, dated February 1, 1972, FeT5Jruary 1, 1972, 
August 31, 1972, September 28, 1972, and Deceinber 15, 1972^ 
from the Counsel to the President to Presidential assistants 
concerning the pending case of Nader v. Butz . Attached to 
the February 1, 1972^ memoranda is a routing slip from a 
Presidential assistant to the Counsel to the President re- 
turning the memoranda for the sender's files. 

44. A memorandum dated August 12, 1970, from a 
Presidential assistant to another Presidential assistant 
regarding a meeting with dairy industry leaders. 

45. A memorandum dated September 2, 19 70^ from a Presi- 
dential assistant to anochor Pres idoni; la 1 "-'i.si'jtani; through 
a third Presidential assistant regarding a meeting between 
the Pr'asidont and dairy ind\i.si:ry leaders. 

46.. An undated memoranduai pvi^pared for : lue president by 
a Presidential assistant, setting forth the President's 
schedule of meatings for a one-hour period on September 9, 1970, 
v.'hic]i injjludey reference to a meeting 'A'ich two dairy ir.dustry 
leaders. Attached is an undated briefing memorandum for the 
Pre's.ident from a Presidential ?-ssistant relati'ig -;.o fnri 
referenced mce I: ' iv^-; . 



240 



47. Memorandum for the Director of the Office of 
Management and Budget from an assistant to the Director 
dated March 24, 1971, on the subject of dairy price supports, 

48. Memorandum from one Presidential assistant to 
another dated March 10, 1971> on the subject of cheese 
imports with a brief reference to parity levels, and 
with a covering note transmitting the memorandum to a 
third Presidential assistant, 

49. An undated and unsigned cover note, attached to 
the copy of a memorandum for the President dated March 9> 
1971, from a Presidential assistant, which discusses 

the position of the Secretary of Agriculture on the 
price support level at that time". 

50. Memorandum dated March 6, 1972, from one 
Presidential assistant to another on the subject of milk 
price support levels to v.'hich is attached a vout:' n,'^ sH.ip 
dated March 6, 1972. 

51. Memorandum dated February 27, 1970, from one 
Pr'^nlr^on!-:'.-'! c?'-;:i!::tant to another to vh'^'"' : ^"" '^1 
seven pages of hdndwritten notes, 

52. Memorandum from one Presidential assistant to 
.ciii..ooht,:i:' on the r^Mbjcct oj? ;o-n.lc pvo.'uce:-;^ t-at-:d Jv vi "-'.H-., 

1970, with attachment, 

53. ?'e"ovpiTdum from one Presidential assistant to 



10 V ■■ ■;. ■ /use ,l.;^: 



'•\ 



'j'\-. i-'oi.;orandura f:i:<..-A v ,>«■ :c.. ;:■■ '.\,.'il,:i.al a:i;":>..i^ :'; '.0 



another dated ,^epte:vbe>;' ^ ■■■> 
tvro reuori^y of i^iaaj^ia- . ';., 



r;er>tev.^b(>v' ■• o ■ , V ' o v.h:*.eh 



241 



55. Memorandum dated September l6, 1970> from 
one White House assistant to another with attached 
handwritten page, 

56. Memorandum from one Presidential assistant to 
another dated November 3, 1970, with attached newspaper 
article and attached memorandum dated November 2, 1970* 
from one Presidential assistant to another. 

57. Memorandiim dated September 29, 1971, from 
one White House assistant to another with attached 
routing slip, 

58. Memorandum from one Presidential assistant to : 
another dated August 8, 1970. 

59. A memorandum dated March 7* 1972, from an 
official within the Council of Economic Advisors to the 
Chairman, CEA, 

60. A meinorandum dated February .1.5, 1-9V3, for the 
President from the Chairman of the Council of Economdc 
Advisors to v/hlch is attached a letter to the President 

:''■ . ■ ; '■ - ./ u' /;^.'. - ' -. ; \ ;.,.4 February :J[^ ■•j(']^ 
and a memorandum to the Chairman, CKA, from an official 
ivit/i.-i.n the CEA dated February 13, 1973, 

61. /*a V'T-clated jj/eraor.-Viunin fv'Oni the Ai^sis ^■'::;.t Director, 
Oiffi, to the Director, Oi<IB, to which are attached three 
internal 0MB memor.-^n'ia, dated respectxvell.y, March 8, .1972, 

::-..-h '(, ■'■,■(2,: ■■ {, ;'.972. 



34-966 O - 74 - pt. 1 - 17 



242 



62, A memorandum between personnel In the Office of 
Management and Budget dated November 6, 1972. 

63, A memorandum from aji official in the Department. 
of Agriculture to the Assistant Director, 0MB, dated 
January 26, 1973, to which is attached an internal 
Department of Agriculture analysis which involves the 
dairy price support program with particular regard to 
cheese import quotas, - • 

64, An xindatfed internal memorandum within the Office 
of Management and Budget concerning the 1973-7^ dairy 
price support program to which are attached various 
documents, some of which are in draft form, concerning 
the dairy price support program. 

65, A memorandxira dated January I3, 1972, to axx 
Assistant Director, OMB, from an official within the 
Office of Ma.nagcncnt c.o.d TAirl^^ot, to which various charts 
and explanatory material are attached. 

66, A memorandum between personnel within the 
0•:■^'~<■i '-.K Mano.:^er;ient and ]iv.J(i,.:[^ ■":,:, -d ~ ■. ^ ..■ .0^ ■'.-V'^j 
to which is attached a memorandum within the Office of 
y-n-^-/,'r.n-:nt .-:od Birdget dated December 20, 1972. 

•V-> ' .'. t:".oi.';5 of a r,ic;iorci:vyi-a iVx'ccd ,j\-io Sy ~''9'('^-9 
v.'ith two attachments dated K;\y 27, 1971, concerning 
riairy irivoort Javest:';;;;- ;• •.•v^-; ruder the ."p-cxcvJ/cvcoX 



243 



68. An undated memorandum notation by a Presidential 
assistant to which there is attached a memorandum from 

the Undersecretary of Agriculture to a Presidential assistant 
dated March 22, 1971. Also attached is a memorandum setting 
forth considerations regarding the dairy industry. 

69. An undated sheet of handwritten notes making 
reference to the price support program. 

70. White House and Executive Office logs or records 
for the persons listed below, of meetings, conversations, 
telephone calls or any other contacts or communications 
during the period January 1, 1970, to and including December 17, 
1973, relating to matters (A) - (l) described above: 

(1) the President (9) Jack Gleason 

(2) Henry Cashen (10) H. R. Haldeman 

(3) Murray Chotiner (11) John Mitchell 
( ) Charles Colson (12) Donald Rice 

( . John Connally (13) Gordon Strachan 

(■ ) John Dean (14) George Shultz 

(/) Harry Dent (15) Ji.'lrn Vvhittaker . 

(8) John Ehrlichman (16) David Wilson 



244 

UNITED STATES OF AMERICA 
CONGRESS OF THE UNITED STATES 
SUBPENA DUCES TECUM 

To: President Richard M. Nixon, individually and as President 
of the United States, The White House, Washington, D.C. 

Pursuant to lawful authority, YOU ARE HEREBY COMMANDED 
to make available to the SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES of the Senate of the United States on the 
' day of January, at 10 a.m. at Room 1418, Dirksen 



Senate Office Building, all of the materials in your custody 
or possession, or the possession or custody of the Executive 
Office of the President, or The White House, actual or 
constructive, listed in Attachment A, hereto. 

Hereof fail not, as you will answer your default under 
the pains and penalties in such cases made and provided. 

To to serve and 

r'i!:arn. (Ji.von VKio.^r wvj hand, by 
order of che Co:. a i. ■. ■.■.■.;, Ihis /'/' . 

Served on: day of December in the year of 

^/: our Lord one thousand nine nunduod 

'I'ihie: aiid s^ivoaLy ■■i.hnii?. 

Date: 

Place : 



'^^,.., . ^<^- ^-■- .'\^' 



245 







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in 



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H 



34-966 O - 74 - pt. 1 - 18 



258 



I 

CO 



o 



o 




H 


O 


H 






•d 


O 
1-^ 


> 

o 



>» 

H 

■;3 



o 
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43 
4-> 



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fi 

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CO 

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c 
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cu 

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0) 

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ft 


ft 


a 


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cr> 

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34-966 O - 74 - pt. 1 - 19 



274 



V 

■p 
a 



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287 



SAM J. ERVIN, JR.. N.C.. CHAIRMAN 
HOWARD H. BAKER. JR.. TENN.. VICE CHAIRMAN 
HERMAN C. TALMAOOE. OA. EDWARD J. aURNCY, FI_A. 

DANIEI- K. INOUrE, HAWAII LOWEl-L P. WEICKER. JR.. CONN. 

JOSEPH M. MONTOYA. N. MEX. 

SAMUEL. DASH 

CMEF COUNSEL AND STAFF DIRECTOf* 

FRED D. THOMPSON 

MINORITY COUNSEL 

RUFUS L. EOMISTCN 

DEPUTY COUNSEL 



aiCwHcb ^IctUsi Senate 

SELECT COMMITTEE ON 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(PURSUAKT TO S. RES. W. I3D CONORESS) 

WASHINGTON. D.C. 20SI0 



TO: Samuel Dash 

FROM: Ronald D. Rotunda 

DATE: January 21, 197^ 

SUBJECT: Justifications and Priorities for Subpoenas 
Issued to President on December 19, 1973 

Part I 



Attached is a memorandum discussing in detail 
those papers and conversation subpoenaed from the President 
on December 19, 1973, to the extent that the subpoenaed 
materials relate primarily to the Watergate phase of the 
Select Committee investigtion. The other materials (re- 
lating primarily to the investigation of political sabo- 
tage and campaign financing) are considered in another 
memorandum, attached to this memorandum. 

The attached memorandum is a brief justification 
of the conversations subpoenaed] it also recommends a set of 



priorities among the subpoenas 
to "D" (low priority.) 



from "A" (very high priority) 



288 



PAPERS TO BE SUBPOENAED 

PRIORITY 

B ■ ' 1. All memoranda, papers, transcripts, or other 

writings relating to any of the meetings or telephone calls 
to be produced by the subpena of tapes and/or other electronic 
£Lnd/or mechanical recordings or reproductions of meetings 
^> and telephone calls. 

B 2. The actual copy of the dally news summaries from 
June 1, 1972, to the present, transmitted to President 
Nixon and upon which he made his own notations, whenever 
such daily news summaries and notations relate directly 
or Indirectly in whole or in part, to: 

B (a) the break- in and electronic surveillance 

at the Democratic National Committee Headquarters 
.' at the Watergate; and/or 

(b) ajiy offers of or authorizations to offer 
° executive clemency to Messrs, McCord, Llddy, Hunt, 

Barker, Martinez, Sturgls, Gonzales, or any 
members or former members of President Nixon's 
White House staff; and or 

g (c) any discussions or authorizations of the 

payments of money to Messrs. Llddy, McCord, Hunt, 
Barker, Martinez, Sturgls, or Gonzales; and/or 

^ (d) any discussions or instructions related 

to, or Involving, any official of the Department of 
Justice or the FBI relating, in whole or in part, 
directly or Indirectly, to limit or otherwise 
affect the course of any investigation or prosecution 
of the events involving the break-in and electronic 
surveillance at the Democratic National Committee 
Headquarters at the Watergate and related events 
prior and subsequent thereto; and/or 

B (e) any discussion or instructions related to. 

or involving, the Central Intelligence Agency (CIA) 
(or ajiy officleil thereof) relating, in whole or in 
part, directly or indirectly, to any possible 
involvement by the CIA (or any official thereof) 
or use of any CIA funds in any financing of or 
payment of money to Messrs. Llddy, McCord, Hunt, 
Barker, Martinez, Sturgls, emd Gonzales after 
June 1, 1973; any contacts, communications, meetings. 



289 



or telephone calls between the CIA (or any official 
thereof) and the Federal Bureau of Investigation 
(or any official thereof) or the Department of 
Justice (or any official thereof) related, in whole 
or in part, directly or indirectly, to any Government 
investigation of the events involving the break- in 
and electronic surveillance at the Democratic 
National Committee Headquarters at the Watergate, 
including but not limited to any Government 
investigation of possible Republican campaign 
contribution which allegedly passed throxigh Mexico, and/or 

(f) any discussion or instructions related 
to or involving perjury or possible perjury of 
anyone connected with the investigation of the 
events involving the break- in ajid electronic 
surveillajice at the Democratic Committee Headquarters 
at the Watergate and related events prior and 
subsequent thereto, including but not limited to 

the break-in at the office of the psychiatrist 
of Daniel Ellsberg, and/or 

(g) any discussion or instructions related to 
or involving "the Responsiveness ProgramJ' 



34-966 O - 74 - pt. 1 - 20 



PRIORITY 



290 



-3- 



TAPES TO BE SUBPENAED 

Col son Conversation with President Nixon 

1. Possible Executive Clemency Discussions — 
According to Dean testimony (1 Hearings 973-7^0 > Colson 
told Dean on January 5 that sometime between Jajiuary 3-5» 
1973, he discussed executive clemency with President 
Nixon. This could have taken place during any or all of 
the following conversations. 

A January 3, 1973, 8:39-8:59 p.m.: President called Colson 

" January 4, 1973, 8:46-8:50 a.m.: " 

". January 4, 1973, 8:53-8:55 a.m.: " 

;" January 4, 1973, 5:16-5:50 p.m.: President met with Colson 

in EOB Office 

" January 4, 1973, 7:06-7:12 p.m.: President called Colson 

January 4, 1973, 8:13-8:34 p.m.: President called Colson 



II 



January 5, 1973, 12:02-1:02 p.m.: President met with Colson 

in EOB Office 

January 5, 1973, 7:38-7:58 p.m.: President called Colson 

from Camp David 

2. Presidential Investigative Efforts — Colson 
claim8s( N. Y. Times article, 6/10/73, news file 2345) that 
during this meeting he urged the President to force Mitchell 
to admit his role in burglary. He says Nixon's remarks 
prove he knew no more about the burglary and cover-up than 
he has publicly admitted. 

February l4, 1973, 10:13-10:49 a.m.: Oval Office meeting 

3. Colson and Nixon engaged in a phone call on Dean 
on the Watergate problem. Newspaper clipping file at 

p. 2981, NYT, July 2, 1973, at 1 + 17. 

March 21, 1973, 7:53 p.m. -8:24 p.m.: Colson-Nixon phone call' 



291 



3A 



PRIORITY EHRLICHMAN CONVERSATIONS WITH PRESIDENT NDCON 

A 1. Ellsberg Burglary — According to 

Bhrlichman, in March of 1973, he had 

a discussion with the President on 

the Ellsberg burglary affair and the 

need for security. 

(Select Committee Tr. 5919-20, July 30, 1973) 

Meeting in March, 1973 between Ehrlichman 
and the President on the Ellsberg Burglary 
affair. 

A 2. Executive Clemency — According to 

Ehrlichman, during July, 1972, Ehrlichman 
and the President discussed executive 
clemency and why it should not be dis- 
cussed in the future as applying to the 
Watergate defendants, according to 
Ehrlichman. 
(Select Committee Tr. 5421, July 25, 1973). 

Meeting between Ehrlichman and the President 

regarding Executive Clemency with respect 

to the Watergate defendants, in July of 1972 . 

A 3. CIA — According to Ehrlichman, on 

July 6th or 7th, 1972, he and the President 
had a meeting dealing with the President's 
concern over a possible relationship 
between the CIA and the Watergate affair. 
(Select Committee Tr. 5291, July 24, 1973). 

Meeting (s) with the President and Ehrlichinan 
on July 6th and/or 7th, 1972 , dealing with 
possible relations between the CIA and the 
Watergate affair. 

C 4. October 24, 1972 — Watergate discussion. 

According to Mitchell, Mitchell, the Presi- 
dent, Ehrlichman, Connally, MacGregor, 
Colson, Haldeman, and Butterfield, had a 
meeting on October 24, 1972, concerning 
political activities, Watergate, and the 
possibility that the President should 
appoint a Special Cortmission (with Connally 
a member) to investigate Watergate. 
(Mitchell Interview of May 10. 1973, at 10). 

October 24. 1972 President. Mitchell. 
4:16 - 6:05 P.M. Ehrlichman. Connally, 

MacGregor. Colson. 

walf^.«Tn;in K, Rutterfield. 



PRIORITY 



292 



-4- 



Ehrllchman Conversations with President Nixon 

J' Possible Executive Clemency — According to 
Dean {l Hearings 973-7^), Ehrllchman was Involved in 
discussions of executive clemency with the President 
arovind January 3-5, 1973. 

A January h, 1973, 3:02-4:30 p.m. meeting 

A January 5, 1973, 4:55-5:29 p.m. meeting 

6]i According to Ehrllchman, he met with the 
President on March 30, 1973, at which time the President 
said that it was evident to him that Deaji "was in the 
thing up to his eyebrows." (DNC Tr. of Ehrllchman 
Deposition at 154-56) , 

B March 30, 1973, 12:02-12:18 p.m.: Meeting with Ehrllchman 

and Ziegler 

And any notes on the following meetings which may 
not have been taped, between Nixon and Ehrllchmaji alone: 

P 3:03-3:10 p.m.: President and Ehrllchman by helicopter 

to Andrews 

C 3:l8-5:17p.m.: President met with Ehrllchman In flight 

C 4:20-5:17p.m. : President and EhrllchmaJi met in flight 

(PST) 

C 5:33-5:47 p.m.: Manifest-El Toro to San Clemente 

7;- Ehrllchman Report to the President — According 
to Haldeman (Haldeman Interview, June l4, 1973, p. 12), 
on Saturday, April l4, 1973, Ehrllchman gave the President 
an outline of his report, developing on a purely hearsay 
basis a theory of who was involved in Watergate. 

White House logs show possible meetings on April l4, 1973: 

A 8:55-11:31 a.m.: President and Ehrllchman 

(Haldeman 9:00-11:30) 



293 



-5- 

PRIORITY 

A 2:24-3:55 p.m.: President with Ehrlichman and Haldeman 

A 5:15-6:45 p.m.: President with Ehrlichman and Haldeman 

also telephone conversation 

A 11:22-11:53 p.m.: President placed local call to 

Ehrlichman 

ft. On April 15, 1973, Nixon met with Deem who 
testified that, inter alia, the President told him that he - 
had been joking when he said that he approved the raising 
of $1 million for the Watergate defendants; that he had 
been foolish to have discussed executive clemency with 
Colson; moreover. Dean told him about his meetings with 
the U. S. Attorney's Office. On this important date, 
the President had several meetings with Ehrlichman, both 
before eind after the fatefia Dean meeting. At one of 
these meetings, the destruction by Gray of certain 
documents was discussed. (See Haldeman DNC Dep., May 25, 
1973, at 254-55.) 

A 1:24-3:30 p.m.: President met with Ehrlichmem 

(Kleindienst 1:12-2:22) 
(Rebozo 3:25/17-5:26^) 

A 7:50-9:15 p.m.: President met with Messrs. Ehrlichman 

and Haldeman 

A 10:16-11:15 p.m.: President met with Ehrlichman and 

Haldeman 

?. On April l6, 1973, Nixon tried to have Dean sign 
two incriminating statements offering his resignation 
or a leave of absence. Deem refused. Both before and 
after this meeting the President talked to Ehrlichman. 
(Dean Tr. 2375-79) 

A 8:18-8:22 a.m.: President placed local call to 

Ehrlichman 

A 9:50-9:59 a.m.: President met with Ehrlichman and 

Haldeman 



294 



PRIORITY • 

^ 10:50-11:04 a.m.: President met with Ehrllchman and 

Haldeman 

A 12-12:31 p.m.: President met with Ehrlichman and 

Haldeman. (This meeting noted 
on Haldeman' s book, not on 
Ehrlichman 's logs.) 

A 3:27-4:02 p.m.: President met with Ehrlichman 

(Ziegler 3:35-4:04) 

A 9:27-9:49 p.m.: President received local call from 

Ehrlichmaji 

Ifl. On April 17, 1973 (the day after Dean refused to 
resign) private Presidential meetings with Haldeman increased 
dramatically for one day. The Dean problem probably was 
discussed on April 17. 

— Ehrlichman 

A 12:35-2:20 p.m.: President met with Ehrlichman and 

Haldeman (Ziegler from 2:10-2:17) 

President placed local call to Ehrlichman 

President met with Ehrlichjnan and 
Haldeman 

President met with Ehrlichman and 
Haldeman alone 



A 


2:39-2:40: 


A 


3:50-4:35: 


A 


6:19-7:14: 



295 



-7- 



PRIORITY 



Llddy, Krogh, and Young 



Any Presidential meetings involving Egil Krogh, 
David Young, or G. Gordon Liddy will very likely shed 
significant light on the burglary of Ellsberg's 
psychiatrist's office and the break- In at the Watergate, 

All meetings or telephone caais between the 
President and (a) Egil Krogh; (b) David Youngj or 
(c) G. Gordon Llddy from the time the President's 
tape system was set up through the time it was 
dismantled . 



296 



-8- 



Tape of the Tapes 

PRIORITY 

June 4, 1973, 10-12 hours, ending around 10 p.m. 
during which the President listed to various Watergate 
tapes. If he did not use earphones, we could have a 
tape of important White House tapes. Even if he did 
use earphones, he may well have made relevajit remarks out 
loud, e.g. , "Get me the April 15th tape." 

A June 4, 1973, 10-12 hours, ending around 

10 p.m., during which time the President listened 
to various tapes previously recorded. 



297 



-9- 



Dean Meetings with the President 



PRIORITY 



1. On February 27, 1973, Dean had his first Water- 
gate meeting with the President since September 15, 1972. 
Nixon told Dean that Deaji had been doing an excellent Job 
of dealing with the Watergate matter. There was also a 
discussion of the Senate Watergate hearings (3 Hearings 
991-92) . 



February 27, 1973, 3:55-^:20 p.m.: 



President and Dean 
Oval Office 



B;: 

B 



2. On April l6, 1973, Dean was asked by the President 
to sign incriminating letters of resignation (3 Hearings 
1017-18) . 

April l6, 1973, 10-10:40 a.m.: President and Dean In 

Oval Office 

4:07-4:35 p.m.: President and Dean in 
EOB Office 

4:04-4:05 p.m.: President telephoned Dean 



298 



-10- 



Tapes of Meetings Subpenaed by Cox 

PRIORITY "^ 

A 1. Meetings of June 20, 1972 — Nixon met with 
Ehrlichmein and Haldeman in his Old Executive Office 
Building Office on June 20, 1972, from 10:25 a.m. until 
approximately 12:45 p.m.; 10:25-11:20 a.m., Ehrlichman; 
11:26-12:45 p.m., Haldeman (subpenaed by Cox). 

V 

A 2. Telephone call of June 20, 1972 — Nixon talked 
■ to Mitchell from 6:08 to 6:12 p.m. (subpenaed by Cox). 

A 3. Meeting of June 30, 1972 — Nixon met with 

Haldeman and Mitchell for one hour and 15 minutes in his 
EOB Office (subpenaed by Cox) from 12:15-2:10 p.m. 
' The next day Mitchell resigned. 

A 4. Meeting of March 22, 1973 — Nixon met with 

Dean, Ehrlichman, Haldeman, and Mitchell from 2 p.m. to 
3:43 p.m. (subpenaed by Cox). 

A 5. Meeting of April 15, 1973 ~ Nixon met with Dean 

from 9:15-10:12 p.m. (subpenaed by Cox). 



299 



-11- 



Haldeman Conversations with the President 



PRIORITY 



1. June 17-19, 1972; Haldeman-Nlxon contacts in the days 
immediately following the June 17 burglary, when Watergate 
was likely to be discussed, were as follows: 



June 17, 1972, 10:58-11:02 a.m.: 

J\me 18, 1972, 12:01-12:19 p.m.: 
June 19, 1972, 9:22-9:26 a.m.: 
9:59-10:02 a.m.: 
11:50 a.m. -1:05 p.m. 



President placed long- 
distance call to 
Haldeman 

President placed local call 
to Haldeman 

President placed local 
call to Haldeman 

President met with 
Haldeman 

President met with 
Haldeman 



2. June 23, 1972 — CIA meetings: Haldeman told the 
President that Dean had said the FBI was concerned about 
getting into CIA matters in its investigation of V7atergate. 
The President said to get together with Helms and V/alters 
and find out if the CIA was involved. Tills CIA meeting 
occurred on June 23, 1972 (Haldeman interview, June l4, 
1973, p. 5). 



A 
A 



10:04-10:39 a.m. 



1:04-1:13 p.m.: 



2:20-2:45 p.m. 



Haldeman met with the President In 
the Oval Office; Zlegler was present 
from 10:33-10:39. 

Haldeman met with the President 
in the Oval Office. 

Haldeman met with the President 
in the EOBj Ziegler was present 
from 2:40-2:43; this meeting 
v/as logged on Haldeman 's calendar. 



300 



-12- 

PRIORITY 

4. April l4, 1973 — Haldeman explained ■ that in a 
meeting with Haldeman and the President, Ehrllchrnan 
presented a theory, based on hearsay evidence, that 
Mitchell, Magruder, and Dean were involved. Tlie President 
said to set up a meeting with these three and to tell them 
that they v;ere not serving the President if they were not 
telling the truth. Haldeman and Ehrlicbjnan co\ildn't reach 
Dean, were told by Mitchell that his conscience was clear, 
and heard from Magruder that he had Just told the whole 
story to the U. S. Attorney. Haldeman and Ehrlichman 
returned to the President's office and told him this, nie 
President expressed concern (Haldeman interview, June l4, 
1973, p. 12). 

^ 9-11:30 a.m.: Haldeman met with the President. 

Ehrlichman v;as present from 8: 55-'' 1:31. 

A 2:24-3:55 p.m.: Haldeman and Ehrlichman met with 

the President. 

A 5:15-6:45 p.m.: Haldeman and Elirliclw;an met X'^ith 

the President. 

5. April 15, 1973 -- On the same day that the meetins 
on executive clemency occurred between Dean and Nixon (the 
tape of which is missing^)^ the President met several tiwes 
with Haldeman and Ehrlic'ixman. One msening took 

place late at night immediately after the Desn meeting. 
It is extremely likely that the President talked to 
Haldeman and Ehrlicliman about v.'hat lie would sny or had 
said to Dean on that important day. 

A 7:50-9:15 p.m.: Haldeman and Ehrllchrnan met with 

the President 



A 



10:16-11:15 p.m.: 



A 3:27-3:44 p.m.: President placed a local call 

to Haldeman 



301 



-13- 

PRIORITY 

6. April l6, 1973 — The day after the important 
April 15th* meeting with Dean, the President asked Dean 
to sign two incriminating resignation letters (Dean 
Tr. 2375-79). The President met with Haldeman and 
Ehrlichman several times that day (see hlirlichman 
section). The President made a phone call to Haldeman 
alone , a call which may well be important. 

A 12:08-12:23 a.m.: President placed local call to 

Haldeman 

7. April 17, 1973 -- On the day after Dean refused 
to resign, private Presidential meetings with Ehrlichman 
Increased dramatically for one day. The Dean problem 
probably was discussed on April 17. 

Haldeman log 
A 9:47-9:59 a.m.: President met with Haldeman 
A 12-35-2-20 p.m.: President met with Haldeman and 

^^^ ■ Ehrlichman 

(Ziesler 2:10-2:17) 

A ^.SO-4-35 P.m.: President met with Haldeman and 

^•-^ Ehrlichman 

A 6 -19-7 -14 -p.m.: President met with Haldeman and 

Elirlichman alone 

Haldeman resigned fi-om his V/hite Kouse ^-'osil-icn on 
April 30, 1973, under charges of being irnlicated in 
the V.'atergate conspiracy and subject to possible 
indictment. Yet after that resignation under fire, he 
still has had private meetings with the President. 

A+ All meetings or phone calls only between 

Haldeman and the President alone from April 30, 1973, 
and the time the White House taping system was 
dismantled. 



302 



- 14 - 

f 

PRIORITY MITCHELL CONVERSATIONS WITH PRESIDENT NIXON 

The day before Mitchell officially 
resigned, the President had a series of 
meetings and phone calls with Haldeman, 
Colson, Mitchell, Kleindienst, MacGregor 
and Colson. Given the individuals con- 
sulted by the President at great length, 
it would be extremely unlikely that Mitchell's 
resignation and the Watergate affair was not 
discussed. 



June 30, 


1972 




A 




8:06 a.m. 


A 




8:50 a.m. 


A 




12:17 p.m. 


A 




12:55 p.m. 


A 




3:24 p.m. 


A 




4:30 p.m. 


A 




7:10 p.m. 



Place 



8:06 a.m. 8:50 a.m. Pres. met with Haldeman Unknown 

9:05 a.m. Pres. met with Haldeman '" 

12:17 p.m. 12:44 p.m. Pres. met with Messrs. " 

Haldeman, Colson 

2:10 p.m. Pres. met with Messrs. " 
Haldeman, Mitchell 

4:22 p.m. Pres. met with Messrs. " 
Haldeman, Kleindienst 

6:16 p.m. Pres. met with Messrs, " 
Haldeman, MacGregor 

7:40 p.m. Pres. called Mr. Colson " 



303 



SAM J. ERVIN, JR.. N.C.. CHAIRMAN 
HOWARD H. BAKER. JR., TENN., VICE CHAIRMAN 



HERMAN C. TAUMAOOE, OA. 
iSANIEL K. INOUVE, HAWAII 

4. MONTOYA, N. MEX. 



EDWARD J. QURNEY, F1-A. 
LOWEU. P. WEICKER, JR., CONN. 



SAMUEL DASH 

OaCP COUNSEl. AND STAPF DIRECTOR 

rRED D. THOMPSON 

MINORITY COUNSEU 

RUPUS L. CDMISTEN 

OEPimr COUNSEL 



'^ttiiieb ^iciie& ^entxie 

SELECT COMMITTEE ON 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(PURSUAKT TO s. RES. M, UO CONORCSS) 

Washington. D.C. 20SI0 



JUSTIFICATIONS AND PRIORITIES 
FOR 
SUBPOENAED PRESIDENTIAL CONVERSATIONS 



Part II 



304 



1?71 

]\/'')/(1l On April. 19, V/fl, .:u-:*ii'5 a meeting Kith F,ii\'J.ich .on cjid 

Sciii'.lta on .'ntit-'usb r "'''-'j '■' "^ FrsRideiit -/.-ss ?J!f:n;-,sd ty 
F.h.olicliryii that the J' " .■•••-: -v.-i.t T:as proccodijig •.rith jn 

sp-^cel on the TiT cato. r^.o i'i-..V!5.(.'r..ib oalloJ Attorney Genorsl 
Klclndicnst curcr'ng the i^cot'nZ) '"'I's^d tnld '■:'»:'! not to Ap-i'^-'l the 
c^ri. (rrssidential '.vjiite Paper) 
Pi'i vVty: A 

'/)/7''- ' M'ci'it's r.v.;tin;; irith EhrH.:".Cii'i"n, KitclKJl'l, Moovor, 

.■: id ' ;i ■■/6vy 15.' ;ly to rilsciiss prjblin-s of c!e'';octi*)3 l.cn'':?, 

tho .:. ;. ■■ . .: ;oo of n^tior.qi, vn'jvvlty T.'iretaps, end y-'-i.bly tlie 

custody of mtionol secui"ity wii-etap logs v.'hich .'^ul 1 '.-. m i-^.:.".oved 
and gave to Flu'-licb-an. According to Hunt, the ,■■' ;r .-itopi^ed 

"bl5ck bag c'jpebility" about this tiro. 

Priority: C 

6/l;/'ll A LI those c-j)iv::.o;;-.- ti-j :3 i-ve 15.'':eTy to involve fcllo-.:-up 

to the S/3/7.1 iooti-!f, l.'.olu-ii-.ii Qiri;'.:!ibi>n of lojks oJil n-itional' 
securj.ty v.'irotyps. 'ihe li.'? 03fie proposed ,';ettli:r.-;nt iras •-'Igo brjjjig 
diiicusscd d'.iv'r'.'vg this period, loading up to "oT.aren's .-".eno of Jj-ne 
^-{) -"'■971 -/j.i.T lining the propo;;ed tcrr.s. .'ilii-'lic'-K^n ",,'yjld have tzon 
xa :cavo3.vod in all PfT settlement discussions liith the President. 
Priority: D 

S/l'S- On 6/13/71 the Pentagon Pancrs v.-ero published, and the 

5/17/71 President lias indicated (.'S/27/12) t'^-st it k=.s durrig the follcv;lng 
irook thst he apprcred the o.r.at? .vi of a cpjoial :■ ./ostirjations v.nit. 
/'i^onrrrjiojis ;;:;jng the Praaid: .nt, Colson, Lhrlickien, H".". ;cr;5n, 
>'.iG^lo.' and l-'i-jsr'ni'cr i:3y psrt;:"n. at least in part to the n:jd for 
a rlvi'bcrs I/jiit raid to th-e ; r'j:'c.'.p;:tcd Vrnite 1-Iouse r-jsp^njo to Uie 
publication of t'le Pentagon ."ap-'.rs. (h'ote that on June 17 the neet- 
I'lg vfith the President ends at 3:0!.i pn end that Ehj-liclu-.sn, IToore, 
Kaldeman, Kissinger, Dean, Zie^ler ;ni I-'scGregor neet again at 
6:00 p. in.) 
Priority: S+ 

^/7^.- On J'jiie 28 EUsb.'irg s-jin'endered to auth'i)riti''-s In Boston. 

'i/\/'lX On June 30, Klein writes to Halds;-an settDJig forth the 

arrangement for $liOO, 000 in convention support fropi ITT. Copies 

of this ir.eno usnt to Mitchell et alj the President nay have discussed 

it with Colson. 

On JtLli'' 1, Young is detailed to the Plumbers Unit, and H'ant is 
interviewed for a job. Conversation that day between Hunt and Colsin 
expresses Colson.'s hope that Ellsberg can be gottsn i:itD a "hellijvs 
situation" that will discredit the -. ! .olo Zfe; J/3ft. Colson asks if 
this could bo turned r'jvio a r.5;';r pubP.ic oaro. (•'.xhibit 1':j) 

At this tire, C3l;jn rco.-.ivcd 5 copy of the I^ald^i-.an to "ean 
"ono in:.>truct'.n,;i the cour.h'el to "'.'-ak 'r. " ,?'.-.3tion on O'jrier.'s 
relstiorship v;iih lioirard lv:.z:.t--i but to be careful to keep ?cC-b;zo end 

Priority: B (nseting) 
C (phone) 



305 



l--;-o 2 

l/7.~ D5.sour:35..5)i'5 'Jn thf.s period ircre lil^oly to hr.vo i':-;!.t Ti.th 

V/'v'V- ■'''I'O f-i'cvsing Plvr.bora' g.'ovtp s"d how to doal -.ni.th Ellsbovf^. 0\ 

7/2/71 a i:cno frorn CsTcrvi.'io J'm.dcrvsn vf:-;r:.-.''n:5 Jlo-wrd Hwt.t C'.:::v-.::h 
:-.}.o vnlno of Ilimt, .'■-'..'! i.;?o k';;, '■■i/'ic' 'OO o? J;-.'? -wckgroiuid. The r.'.ia 
co-'c'ivr^o:} "nrio;ilr ;s '■,■•> ■:.f, X r!:i.rl :■> jfc ^v;-?! ' j.?^r,c\\ -K'l^Jt kg h^d bcca 



C 



'l/l/O- At I'm it's j.".;qi)^-;f--t, '■••.'" io-'>->sn c-'Jlrs Co:i;rnl Canhr^n end 

i'oquG.'jts nr;.s5.!i'-.';on ' • ' : ';i''. '• 't -it t'iis Lr-'^io nc-.irlod a &7.z- 

■'..xovxty: 3 

'l/y-''./'P. F. Donald li?>:on vras nuch a pcraiatcMt oovi'ca of iVaTiU; 'Ity 

Toi- the 'vhitg II^u;;g thit tho "rcsWont '■"d h?.s r^^o!:o '.r ^■^pA 
(-,-r;-roivbly tho vii;;!- bsfcce); cooj-!:<\-y\z '■:-<j ':■:■:' '■ y '■ i t ln;:st 
■/.'■ :.;.fcnoJ:CC<5 0:;!/A;b-:ch, Trillin, i:i.trhn:ii_, ^' ' ) ^ ' - i vrr^ild 

'•3 ii.>/^';:ii':;33V -^v'-id to ';tsy jirb nf -tr-nvlr;. •■ ■ ' ." ••.', <"■;/; a 
t^yJ3, h^d tho ;:r!55.:i ■i.rrnt of 'rop'SM^ l-'.s -jJ-C "• l iV. ■;?= -dd ;::i 'v'.;5 r;-i3. 
fi'/.-j-.v-ty: C 

7/21- On 7/^2/71, IfeTfc v5-?:^V:1 '• I' " i ^:i , •. > "■^■s'?, 

'(/?)>J'I1 raise dooiu-icn'.av.ion, etc. 

}->irl5.ch;':an csys the Fresideat authorized t!'.e special investigs- 

tion TJnit on July 21;, 1971. ICrogh attended the second jr.eotr'iig on 

7/2l;/71; 5.t is likely that both r.eetr'ngs relate to ;=pnro-v.-?l of the 

■■■.■■' •■-'jc. 3" 5iid ODiit;;;'n the:u' r-.srchm^ orders. 

A ■ ■■■ -ye;} -y' > ..-jf^-i^T betiJscn the Frosico' tj O^^.nv.i ^ ^d 

)^:^:;;■ , • ■ ■ 15 .ji ('/^l//l. Since one of ^:"' t ' ' • • n i'^-- " ' •; 

held :/ ■ ■ : r ^.nd Colrjoi v;is tho ]-ni--h . ■•,■.& is IVhoSy 

tii^^t M. ^.:i: ^>'-.ij;"j; '■ -j;; :vol/:tc to ^ ' ' Jt-'."*;ltics. 

Priority: A 

3/3- 

3/>yVl On 7/28/71 Hieit icr/'.tes to C;l;- r.i yn the 'V ::.■■■■ V.. ,5 -.i of 

Ellsberg" incl-jdln^ sn op3:;tion plan aircc-d at destroy 'm.^ •"■I' r^bisr-i's 

p-jiblic fj-.aso. On Au^iist 3, 1971 Krogh and xoung v.Tite Colscn 

referring to this i.ei.'o. (Exhibit l50) 

/.ugust 3-5 '••.■33 also the period during vSiich JacV: Anderson 

Eousht confi.-^r;3tion for his 3/6/71 stoi-y that r-rnor h-.a delivered 

$100,000 to Rebozo. 

?rior5.ty: B 

e/n- On August n, 1971 >Crogh and Young -•."rote to Ehrlichnan asking 

5/16/71 for pcniission to conduct a "covert operation" on Fic-lr.in^'s offic:^. 

(7!>in5.bit 90) It is reasonsble to r>u£~cst that !". '.t;" -. ;-; on Au-ir'jt "■ 1 

and Au:ru5t l5 rc-alt partial 7.y "ith tV.e -aso of r.-t ■■i-'"s to be 

cerclopc-d 5^. 'vJuTit/Lic'dy :-:p:;oi8l :ro.j~ct :Jo. 1." 
yil'.Ebor-i pled innccent on Au -jst l5, 1971. 
Scloot cJ-rattes exhibit .'.S is an A-.-.j-jst If j i;-71 -"-i'a 

from H'isn to J-.c-ldrr.sr!, !'' rli'',h;-.3n c-nc o-'-.f.i-o sst tVjj ■•.lite Fcui?. 

The ner.io deals v.-?.th t"-.3 cvcblcn of hsn-J 'nf; no\\-'y'.c3l ci-erios and 

the use of the fecirsl s.c-ch'ncry 3-ain;;t :;v.ch '"ener.ies." (Z^s::- 

Tr. 2597) 



34-966 O - 74 - pt. 1 - 21 



306 



Pn-sa 3 

Jn .1 Sopto.;.b>u' 9 •.■.'.ono .fi'or.i Ool:5o:.a to Dosn, Colson refers to 
doa;i£:ijtir^ "■•■'.•.l-oi-o to ■.(•.•>ii J. •:,■)■' 1 r".-. .■; I.oo ov:i.or.; I;y. " (Kxiiibit J^p) 
'3. 

'//i- Vhxr, :i.3 I'.wi.D';;;.; :>-;ly .utci* :."■ . :' " ; ' " " ■ .; " li':; 

')/'l!"0- vci;)irn to V.'aslnngton. 

?r:".ov:lby: A ..; 

!-/'-//'• ?)aY:'.tl'!'>roi;n,'j';s r.otcs oppcsr to roflcot a 1' .\;thy Jiscu'i.-^i.on 

v.-Vth j;)ir;'.V;r;-4-iu uii 5/12/71 rc!i£X'd:i;i:i -list prvc.'i •.■i-ji-;t bo ;!ccl--..':s5.f5.cd 
^von iJi-nv lions f'f": x.iist-.'&tj.ons to n!!;'.."!; toko of •.'.a ';:;;b fi'o;i Vi.ot IT-n 
to 0\ib3, L-.)b;:".o;i ..'vl I'-M.'ua; It ssci's re; o 0:1:3 bio to ".stiV.M tbjli the 
potential coa-';i;iri;.i-!ices o.i? .7uch r?oclr!SE:Lf:'.cot?-on were rJis ■;us:i:-;d by 
Colson ivith the Prcuident the ;icxt day. Also noto th.at Colson had 
just rccorcncncied the Uniting of tlie Enerriios List to 20 r.sr-.os. (Pn-iii 
tcstiraony) 
Priority: D 

;/.'VVl XowiG's iiJtes reveal that from J/tO ^.r?::;;^! ?/21 ;;V..o ;:.;ro 

t ;c""0'i(;:i.ve t;ip level discutKioriS sbji;.'". ;;■/.■.•' r-;u v-.-ot:iy":-;'j ■' ;t-s-T'.-il3 
fvo;!! fo^-i^-sr :^i('es; it ia i"cc:?on::blQ tj o::-k:3 '.' ■■;t ^^ viii^':. ,.-n, Cilcjn 
C}i-i '^in^ylor ;--sy hrvo ^i;:C■■;';ocd :-!.o rhv;'!'^ " ; , ' ' ,d ivi'h ':3i'c;-:nn 
;;ni -Ivlio ?..\i:;ii;c;vb. ■ 
Priority: D 

9/25/71 Another of the meetings betKcen tlie President, Colson and 

Kissiiiger cocvtr on this date, follovod by sovc.val calls v,i-ob?bly 
c'enl'Jiv^ irith the sair^ ;rj.bjcct. 

C;i ':-/'?)':/'i:\., J'i^V . ■:■ • • • ~ .•■-,••• ^• • I. • ^ ■/.:,! 

f jv« v,i:.s v^-)\-o to C'lP. 

':Z/^/(y. .'.irjth.^v Prc.Tic'int, Colpon, i'.irsi-^ jsr ":.'.octir.;;j "vjit '.-.-.vred 

on forged Stcta T'epartrient cablcij (i- .■:■■.-; t'-.is nonth.. 

Sp^of.al phono billed to o: " ' n.c.-> in iriv.-s". 'i 
office at about this tine. 
Priority : C 

10/22/71 Fresicentj Colson, Kaig meetingj '^ais; vre;?- :.ib"j- '•itii?-.^ /u ^or 
Kissinger. Iiv.it prepared false State Dcpt, ccbjj.jr; t'iis ; !;;r.'i. 
Priority: C 

10/27/71 President, Colson, Kissiiiger neetingj Hunt prepsred false 
State Pept, cables tliis nonth. 
Priority: C 

''■"'/2y/'lZ. President, Colson, Kissini*"— ;-".oot:*r.-;s; P'lnt perpa^r-i.-j f-'^.-s 

S'.sto Dopt. c3blos tliis n?nth. 
i-ricrity: C 

10/3 V7I 7rcsic':nt, Cclsoji, ;-;5.Soin;jer :.-iot;n;;"; Hunt ■ ■ - -1 :'slr3 
State Lcpt. 0:.;;li:;.'3 thin ">nth. 
Priority: C 

!)J-A/71 President, Colson, Kirsinser r.cotinss; this vras the r.onth 
j'n v.'hioh Hunt v.-ss ir.sti-ucted to give falsified cables to Conion 



307 



ix^f ore his IfBC f.-.i-fccrv-icT-r. 

A a.-.co.yl "1 "iBlx-'-'fi i-.-.-.fi1(3 V.-S cwir^i'vcd by t':'; (;i"A (■■ ., ." i^ 

ilDV(;r.:b3r. 

C:i jrovurbcv- )i, '•'/H, ■--.;■:■•"■ i ..■'v.. ;V;d a ncot^Jig ■;:lbh 
iTnldo;-"'!, Iab;'x;!i.X r;:!,-! y^rjc-cil.^v Su "..■l-*'--h C;. v ifcion S;vadv;(;(5.;jo -.-r.s 
discuGcod. (Sti-;;c;icn c:;ec. r.orF;;'r.:'i. :^7j-H~:/;y y ■-: '■) 
Priority: B 

,n./j.5/71 This '.-.-as bho spproxfrate tt'j^e of -fcho SL-.^-.-t '■'■ v;/^''rAo 

riaOj5ti:-;3 Colaon r.tjy liavo br v. ;!'lvi;-i=.d of .it by cj " ■ '" t or 

■^ri: .-/rot. Gon^;t.:no -;Ia;::;?-^C "''■"O bo;:r-v; ^t tl^is tv . 
IV5o:..'ity: D 

.il/18/71 •- Frosi.do:itj Colcon, Kiss?_iiscr r-.sctingsj lluat iiiEti-iictcd to 

give falsified cables to Conicn durjjig this month. 
Priority: C 

i'lAo/yi PrCoit'Tvtj Col'.'^yn, Kissiagor r;r;-;t5.-ii3: ' :'. • ' ' ' d 

to give fglsiCiod C'blog to Conicn •r'lVii'ig this i:.!j:l:h. ^.-'i.o t;-v-t 
the bor-.btiis of ITorth Viet iJfr-si bco-'n ■'.■|./?;l/71j this r:i-,!rbiv'3 i'?y slso 
relate to th^-t. 
'Priority: D 

3JL/30/?1 Pv -sidentj Colfon, Kissinger ;.. citing. 

Priority: C 

12/22/7.1 Himt i.'as rocruit:Ln,5 heavily- for Cvcnstono at th.is tine. On 

12/3.7/71 Str-C!-,r,n pi-cp^rGd a tsJ.'.-in-; pspor for a :-■■■■ .- ':.cv..-.-,.^!i 
linldonnn and I-5.tcho3.1 on po^it'csl /n'/S3.1:":T;>'--s?j ' i a 

dr" scii.f^.sion of Li''.dy's role (?>;tG that "•r;.-".:".;.3 r.oa :>,.■;'.,.' "=1 c'loicc for 
Lidcy's job); it is slso pj."sib3.o tl:ob 3.oc-?'>t, 5r:::;vTrii-.'ig sTirvelllarics 
of Kissiii^cr, rs-.-j have bor.n ciscv.'sscd. 
Priority: 3 

i;A/72 K3ldeii:3n has testified that on April )i " ; ' .i ■ 1 -"^.i 

the President (5 days -ftsr the Colson memo). Ti-o parioJ is al?o 
irpcrtsnt; tliis ires the cay of the Wisconsin Prinary, it ■.-.'as Sn 
the midst of canpaign intelligence plaiining, and at the high point 
of pre-April 7, 1972, caripaign donations. Note that theVesco 
conti'ibution vras received shortly after this date. (The Keeting 
vri.th llitchell is the nost ii^^jortsnt.) 
Priority: A 

6/17- These were the President's first conversations with 

6/19/72 Haldeman and Colson following the V'atergate breakin . 

Note that prior to and a^'ter Colson 's Jui-.a 19 10:49 to 
11:48 call, Colson v:as involved in discussions relating 
to Howard Hunt. (It is unlikely that any tapes of. these 
conversations exist as the President was in Key Biscayne 
at the time.) 
Priority: A 



308 



Page .5 

'')/1.9~ On J. <:;:■'. 1.9, Ifi.ss i;Iv.n AS hnnvs nf'tov !:lin Uatergaf.e 

C)/'>.0/ /2 !vo.i'<;lii, .^ ^ ,-!..i.(:»!; of .Ti.gn U'l iMnf. ■ ^c.tJwy, .•-■■o'c place. 
Cf.v-'.ilvii : :l; l?.aldni.v;n md ^^:^:'.;o.(i '\^u\ '\ 1 1, ii. i.cal 

r/yato.u n.ud ■"\u\an Jhair l-.-..o'.' .'.l-iC (Cu.-ar.l^ui • ■-••j;;l:4994) 

'•■.hcli.r.h.iian called and subsaquontly i.int vn.ch John 
R^'an, i.>.i!3l;i;iioting hiin Uo i.nvostiigatc t:Iie affair; Khrlich- 
i.''.n and T?. •■;n li'tnr k-m': v;li;h Colson at which rJ\AQ Ehrllch- 
r -.n onV-.-id .'Oo.-n lo ;Iicne MmiiC and hrvn !i-\ i.-u.; i:''.a 
>: i-.ii^vy. '''it;1."il'iMi l.atftv chang.vi !ii'; vl 'd . -.d Ii'Ul i:his 
o rdc r rii s c i m lod , 

At this Meeting, Dean was instrnoi.od to open and 
examine Hunt's safe; and also to doi-.fiv;nine v.'liat Hunt's 
sfitus as a \.'hitc> T!onso ei;i>.iloy-:a ■....Ti::.'iined. (Dean -TR:2iy2/0 

Mitchell, L" "•i-a ..id r^.-.';'.ui v.cM-.u.-up.d frcn California 
niid u-fint to l'itch':il' s Ivo. e , Kh'tre thay r.dt ^.-ith Strachan, 
Sloan, T,iddy, I'l^.'.nder and Dn-'n. "ore, according to Dean, 

\hc first :;tpps of a "cov<?r up" v/gj;g Ijagnn. ( D--.an 

X.?.:27.'S/-6}) 

'n June 19 or June 20, D.-.^an (■oi.':.:-c.;;:-d !H;i;h iCliM.'.idir!nst 
■ ■■id >;.'ts:csen about the V'atergate investigation, relaying 
to Rhrlichrtian his impression that Petersen v;ould pursue 
his investigation fairly without follov;ing a wide open 
i'.iquiry into the V.'hite House. (Dean TR: 7.177 -80) 

On the 20th, Ehrlich.Tian, Haldcpan, liii.-'-; ■> II , De; -.i and 
Kleindienst met regarding the i.-.vcutlgation . (''hrlichv.an — 
TR:5923-24) The same day, Dean in'ormed Ehrlichr.ian of the 
contents of Hunt's sa ';e , indicating th.at politically sensi- 
tive r.iatm:ials vrere ai'^ng the contants; Ehrlichman advised 
D.-an f.o "deep six'' r.rch ite.ns. (Dean 3:938) 

\vi.Lh rtifercince to the 1 TotiuR b^itvaen ;:he President 
and General Haig on June 20th at 1:2/ P.M., it should be 
noted that Haig was involved in and aware of the original 
national security activities of the plumbers; it is likely 
this meeting dealt with related natters and the involvement 
of Hunt in both plumber and Watergate activity. It should 
also be noted that, during his meeting with Haig , the 
■ President placed a phone call to MacG:,-egor at 1:45. 

Priority: A 

6/21- During this period events and significant neetings 

7/2/72 related to the Watergate affair: 



309 



Var^e 6 



On JiinG ?.]., D^an and Gray '-Tr. j.-cnytrdi np. t-I'.-'^- ;"RI 
3,nvG3t:i.^-,ni-'';ii " ■ d (ho i'ncovo.r3.n{» oi! V.ba P.-!\1.'..-. i.p, r!'.;-if.';s 
r'n Bark.-?.rs '^-u'v ■'.^(■.ount-. The follov.nn;; iMy, Gvay vnlnlicfi 
to Dean hrs ; ! ..-iv! ci : Vo c.-i.se, Ir'^lj d '■■.•3 !;''.•"! ro.':--!"''.h U.:' i:y 
of CIA luvol.^: ,)!:. ^.i Tri^a 22 or Jui.a :^3 , 0. n xnTf ; -cd 
!'" 1.d:>.;-:ian of thD.s i.oar..i.b:'.1.1 ;:y. 

On Juna 23, 1972, ll.'J.dc .mn reported to Nixon; Ki.xon 
directed that Haldeman and Ehrllchman ir.^ct wi.th IlGlms and 
V'alters. !Ie ^vas roncorned that the 1'?<T. ?'.nv3;3tnf;''!\on not 
ccir.pr.Trrii sG 0':!i'=?r ''XA .•■•.':tivii:.'.:b.s. 

At ;-h-ii: V iM \iig, 'v';;ers iracal.Ts i;!iat Hald^'ian used i ho 
oxprossi.on ''it \.-. s the President's wish" in instructinj* 
him to u,a«t with (FBI director) Gray. Halderaai has ad lii'-'cd 
that he probably did invoke the President's n-;ir?, C2nd 
;ialdGv,:an 'uit.) 

On June 22, i;he FBI ini.^^./viv: ;d '>>! -i, r.>l.l.;-.;nd by 
interviews v;iuh other campaip.n and '.■uite ;'ou;;e parsonnel. 
The FBI intei-view with Cherinault, soujiht in late June, 
v;as particularly :;nnr.itive (Ohannault could coinpromise the 
plumbers activities; on Tnly 2, she vias joined in London 
by Fielding '^Iio pi-;!.' il 'lor np and coacbio.d I:cr on the upcouiinj» 
FBI interrogation.) 

On June 23, l-^hrlich r.an v;as visited by Hugh Cloan, Jr., 
the cainpaign Treasurer. Sloan told F.hrlichiran about his 
apprehensions regarding the very recent V.'atergate arrests. 
Sloan got as far as expressing his concern that CRP might 
be connected with the V,'atergate situation when Ehrlichnan 
stopped him and said that Ehrlichr.ian did not v.-ant to know 
the details. (TR: 1339-41; 1446-48) 

Dean, on Jui'.a 26, discussed '.vit:h '..'alters the use of 
the CJA in curtailing the FBI investigation into the 
Mexican bank checks aspect of the L'atergate investigation 
and in the use of CIA funds to provide support ijor the 
Watergate defendants. Walters refused to intervene except 
on orders from Nixon.. Dean informedEhrlichiran of this 
discussion, and v;as directed to attempt to convince V7alters 
of the necessity for CIA intervention. (TR:2202-05) 

On June 27, 1972, Gray called Helms and arranged a 
meeting for June 28 at 2:30 P.M. Gray at that time asked 
Helms if there was any CIA interest in Mr. Ogarrio. 
About an hour later Helms called, confirmed the meeting, and 
said that there was no CIA interest in Ogarrio. The next 
day, Ehrlichman called Gray in the morning and said. 



310 



P.'-e 7 



"Ynn i"'nr ;l yoirc ri'°.r>.!:5 ng >M'fh HaLis and '';i1.!:o}.-.s roriny. Tn 
i;! i;:jl: ->-;'rT^;vy." (;'<n;i.^n;'n .-Oi^u;: J ! : "• c,;: 138-39) 

'"1,1 .T:'..a 'f^, a^ihri.- ii: '^r.r.-iiifi npr ,.':u(: i'xr.i: ihrirc v.'i->nld 
he. no .T:j;;.i .; ■iic.;:;" Toj; ilic T'lorRatio dc*. rr-ic^Mi.fj .r....>.'i ,-.;-,fi 
CIA, Donn i.ioC vvlth Ilitchell., L!.I\i.ie, and I'a:..>b",an .?.hniit Lha 
i'>.c-:;d foi" si'-iii-'arl; 'aonGy in cxclv.np.G for i:lic siloncc of the 
i:-.Mi i.n jail. HaldeiTi.'.n and Kh//1.ich!;an ap^jrovod tr.he Uf50 of 
llri>.b Kal.i.ib.''-'ii Lo ra5.sc such funds. On June 29, Dean li-^t 

' -..l-.^pch, i.ol.d h?.T.\ v/hat he Itncw, and .rndil-cated i:hal; 

'>l,V--*n, ''''.''-■.'l.i.ciir.-an, and i''''i.t:chGll. v:-ani'.od \\jy\ I'o •.•'■i.:;e 

1 ;:..:y Tof i.l'ie appcehcndcd burglars. !"i1 r'.oh l.ii-.:)? cijuf j.i.-- :d 

this v;j.Lh Jihrllchman. (Dean 3:9';-9 '31.) '.-.'i.f.hln a '..'cek, 

Kalmbach had returned v;ith rr.onoy \ h:i.<;h l\e i i.ansferred to 
Tony Ular;K\;5.cz. A '.^neting was Iiel.d at thai: lilnie betv.-een 
T-iRna and Kal.mba(".h fo d:t.';i;u.';s i'la do'.t.aj.ls of t?!;!} was to 
'Caciixva bow i.vurh. 

On /-.iiie 28, a.Cter a discuss.i.on with Khrliohman, Doan 
f;ave Gray ih.e nc^litii'^aHy sensitive i 'atorials from Hunt's 
-ai.'e. 

At a !..:>!tinri witii Pi.'o. siiiciu: Wi.roii on '\- .-.i 30, Clark 
'.'arjGrep.or v.'as asked to take over as head of the CoKiraittee 
i;o Reelect the President. Mitchell j.-esigned on July 1; bis 
conversations with the President on June 30 and July 1 and 

2 probably relate to his resignation, grounds for and against 
it, and its relation to the Watergate break in. 

Priority: A 

7/72 (NOTE: According to both Ehrlichman and the President, 

in July the two discussed executive clemency and v;hy it 
should not be discussed in the fii:;ii;.:o as applying to the 

V'atergate defendants. (Ehrlich.:aa X'l: Ii':?.! ; President 

S/15/73 statement)'). 

7/5/72 At 9:36 A.M. the President met with Dr. Kissinger and 

Mr. Ehrlichman; matters of mutual concern probably included 
the national security considerations related to the \7ater- 
gate break- in and burglars. 
Priority: B 

7/6/72 On July 6, at 10:04 A.M., FBI Director Gray met General 

Walters, v;ho told Gray there was no reason why Ogarrio and 
Dahlberg should not be interviewed. A discussion follov.ed 



311 



xc. 8 



Ii.al: Mnxon rd-.ould be c<l\j iced l.liai: i:i;n VM, ;!;;-! CTA .-ind 



M ' r i"! 



i:Iiat: Mixon hi.iiRcH: v.'fii;fi vic:l;T.mi:':ful hy i ! -j '.'ii.i.i;.-; 
sf-.aff. At 10:51 A.M., Gray t:GlGi-.!ir:;-,i ■ '.ir/^. .\'-/v.,;, iclliM.r', 
hiiii ib.-'i; liH .•1)1(1 \'r'l':(i;:s v.::vc inihap;;y '.;:j; i ' '^ '."I'i'cj I'(>u:;g 
c-Oiifu.';;.');! ;U;d J.i:;3 :! ncl:'.j"ra...i:r.ce f:o Lhe j' ''i'. iui i.i'c (^TA. 
Hi.-.-.y 5.n;i/-"—.rf'cl t;hj.;; ci.-ul.d r'.-.ijn ';■■■'. bof:h oj;;- - i;i • iiviiTn;; ."iirt 



l.i: 



•.■"ill, ••(.'■, in ;^ ]':'tiC :'iy,r ::o .. ^i.vy Iiis feol.rnjiS Co Liio 
•^r'.dijut. Ac ll::/8 A.i.l., .'•: :in n.^^ T:M^;hon;3d Gray Co 



'' 'T/VJ'' '-^-iiS ^-fi •^•"''■' i'":''' ■■''"'■•'■-■''. '! 'ay i old ''■. i ■' '•'. 'a 
'..';i.:-!;ad i;o bx'ing to the Pi.o.sJdant ' s a ;.::■. m!:-'. a C: y'r, .nd 
falir/.s' <:<Ji5ling that people on Nixon's ai.aia'; wa ■ a Lryiui^ 
to Injujo Nixon through the >jse of the C'.fA ;.t\id F'^I . 
Nir-on i.;old iiln "'^at, you i:oni:ii;ue 1:o conduct yr.nr af.;--,ran-- 
S3a.a and ;'-'..'M'[^h i !:s'aK(;l;;^atii'>n ." (fiv^y .■•■i:;; ':) 

'i'Ii''"ou;^!'-n t thr; r'';! 'aiiKurr of l'J/2, a •. i.-'j .)/ -^ ; •; 

were made to the VJatergate defendants. On ijlixs daio, 
$32,000 was deposi.ted in the accou[it of Ho;>an and Hari::on 
for Hov.'aird Hunt. 
Pri-ricy: A 

y////2 According to Khrlicliraan , on July 6 or 7, J'J/2, he 

and the President had a meeting dealing with t:he President's 
concern over po.ssible rela(:ion.';hips betx.'een the CIA and the 

V'a tarf.a te a f fa ir . (Khr 1 ichi-n n TR : 5 2 9 1 ) 

Priority: A 

7/7-- Evidencing a continuing concern on the part of Charles 

7/11/72 Colson v^ith his relaf:ionship to lioward Hunt, Col.';on sent a 

nieno to John Dean on July 7 indicating his lack of 'Anov/lci);;.e 
as to why Howard Hunt's office phone number v.'ould be lislzed 
as Colson 's extension. Note that in a memo from General 
Walters to FBI Director Gray on the same date, V.'alters indi- 
cates that Hovjard Hunt was provided with false identification 
and devices in July and August of 1971. 

Note also ::hat several days later, on July 13, Colson 
prepared a memo to Clark MacGregor on Democratic charges 
against Nixon, with suggestions for counterattacks on 
McGovern's positions. (CRP archives 730090380-381) It 
is probable these and other V/atergate related matters were 
considered in the President's conversations with Mr. Colson. 
Priority: A 



312 



)?:irfi 9 



7/l')/72 G.iv.-.ii i I^o. f-r/rl;icipan(:.'> in i-hc. July I'') i.'P.nfi.i.nj^, 

il: is liVoly lo have rcj.atind !:o f.h.-! iic^.c:.-:; i iy .'nd jiCr.iis 
of kf~.''p:i 1IV3 ibn plvimbfirs ' oxx;?tniice .-'nd " o i i. v ii ■ c s .1 rr.crfit 
.".nd (5n.i: (if ill.'; ;"'.i;.':ns. 

llnln. ^ii ,r..l.y ?!., i:!,u j'rr,-; idnuf: r.oi: v;it:h Hitch;: 11, HnJdciv.an, 

.md /.^i.ew; <i likely to^aic of convnrEntion v.ould h.ive been 
I'i'X, one of i li.i fcTj /ij.jr; of -'li'il concern, or f;ci:,n.).-n. 1 
er-np.iij'jn r.ci'.ivii:ins. 
l.'j;iority: A 

At the dinner meeting on the sane date, it is likely 
tlie political implications of Watergate v;ej.o di;vcussed. 
P-r-'or i. i;y: D 

lIVo- AbonC. t.-n O.^ys inC.o July, 1972, iO'.l,.-,b.-.. h bor.'...-j ,w,^- 

1/7.9112 earned about his raising money and distributing it to the 
defendants. He decided to meet vjith EhrlicI .'.an to discu.^s 
the matter. Kalmbach met v;ith Ehrlichnnn on .■'n'y 26, 19/2, 
at v;hich tii : F.hrlichnan told Knl^ibach ("hat be x.-as a',;are of 
Kalmbach' s a. iignroent.'? , th.at Dean Iiad the a\ithority to 
order the assignment and that the whole operation was proper. 

If the President were aware of such activities, par- 
ticularly as they related to Howard Hunt, it is likely he 
v.ould h.ave discussed them v;ith Charles Col.ron. 
Priority: C 

8/7- During this period Kalmbach was keeping Khrlichman 

8/11/72 appraised of his progress in raising funds for the \\'ater;,ste 
de<'endants. Through July and August, Mrs. Hunt lias in- 
dicated she received several payments for distribution and 
deposit. As Hunt was the principal beneficiary of these 
payments, it is possible they were discussed by the 
President and Colson. 
Priority: B 

8/14/72 During the period of the convention, a "plot was 

hatched" to have l-IacGregor make Watergate disclosures while 
the President was in Hawaii. (Exhibit 107) 
Priority: A 

8/25- Dean has testified that as early as mid-August the 

8/29/72 White House had learned that an investigation was being 
conducted by the House Banking Committee into aspects of 



313 



a;;e 10 



f-he U'a l-.c r/^a t:G broak lii. On ?./Vb r.inirf t nvcsnij^T i:oi-s cpat.s. 
f.o l^he '^npnbl. f.c.-'-n K,-.il:lonal Convoiif.ion (o L\itej:vicvj Siinn.T, 
\vIio i.bey finally spoke with on 8/30. 

S;.cn.'i v.,i.s : L !:?:(! nl.-ri fo appoai- on r>-!pf.ri,-.b.vc 14 befoi-c 
C'lRi C.;!..:,!i i:;.i.<;; |,..;.o.; io i'li.s, discussii^HL! ..^vo '■,.:'.1d wi(;h 
r»i(;/;K;';n ■iiiij rtii;o.iK;ll ■I'iCiii; i;he problcnis o I; ;;ii';!i -n app'^flr'- 
■•'.ricfl. St:^u!3 dill ''.)(: iippo.ij; on the grounds tliat: it v.'ould 
be detrimental to the csriioinal investigation proceeding. 
(Donn 3: 'J 54- 60) 

Aci:(}/.d.'.n2 to D.':an, c-^s deraaiids <:<■■■>: cney by tiie Vatcr- 
j-iate d:i.r;3L-id;..nts increased through July and Aug'ist, dis- 
cusjiions \:ej:e held about using $350,000 of pre-l';72 funds 
for pay.iients. (As tlie existence of such a fund represented 
a potential Campaign ,\ct vuilai )n for Halde-T^-'n, Colson, 
■ -id iTo/.-nrd, consiileration v.-as :\^.^.:o given to I; ..; it ■..ight 
legally be disposed of.) 

During the latter part of August, pressi.ire was incren.',.-:d 
when Hunt sent Colson a letter, which he turned over to 
John Dean. At that time, Colson asked his secretary, Joan 
Hall, to coiiiact Hunt and deliver a reassuring i. •■■.SGage on 
his behalf. (Dean 3:9&7-968; Joan Hall affadavit) 

(NOTE: On August 29 the President announced "Dean's 
findings" that no one then einployed at the White House or 
in the adninistration was involved in the VJatergate incident.) 
Priority: A 

9/8/72 On September 8, the President net with Charles Colson 

immediately followed by John Ehrlichraan and Egil Krogh. 
It can be anticipated that his conversations dealt at least 
in part with the V.'hite House plumbers. 
Priority: Bf 

9/13- Immediately prior to this period. Dean had received a 

9/14/72 Presidential request from both Haldernan and Colson, ordering 

a series of lawsuits be initiated to counteract the DNC 

civil suits. 

On 9/11 Dean submitted to Haldeman a memo detailing 

these potential suits; he later saw the memo had been initialed 

with a "P" that indicated review by the President. (Dean 

3:956) 

At a cabinet meeting on 9/12, Kleindienst stated that 

the investigation of the Watergate was the most intensive 

effort since the assassination of JFK. (President's 8/15/73 

statement) 



314 



J.'n;.e 11 



It nl'.oiilfl .'.Ij-o bfi noted that t!ie indictiiouts v.-are 
i>:-ii,-)o!:-'d to l.n Ivni'^.rd do',;n on Soptcmbcr 15; this vj.is pro- 
}■>;•]■>} y a 'M'vi.c ol; r.orr"ido rnbl.e concern. 
I'r.i.'.jj.r .'.y : A 

)/tj//2 0,1 0/}'.i//2, ri'd i.:i j.:;ui:a r.j,.- i ho snvnn VJatcrgate bircglacs 

'.OiM h-uidcd do.n. T.itnr that day l.b.o P^nsidont net vn'.th 
Juhn Dean and H. H. HaldGiran, and arcord.ntg to Doan, the 
Pj.o.sidttiit t?0!:C^i.-. lnl..i.rr;d hin on doing a ;^<'-od job and .IndlcatRd 
'•■.\>.->i: '\e x.-as "ijT.-",'. .';od t'v;'. (:a.sc b;id r;(-0[,i^.--d '.;i.l.'i '■idi.ly." 
.i.'b'iy di.c>H!';;;cd i.'\'; <:.'.-i...i.i.nal oases and civil ca.sos iiid the 
[.'■)f:ential hnarings be ^oirti t'ne Pattinan coiiuiittee . At one 
point in the convej/fc-ation, Doan recalls the President tcllinR 
him l;o keep a good list oF ij-.a p..:css people giving the 
• -.drninistration trouble, '.o i'l'.y i-.-.iiild ifake life difficult 
for them after the election. Ch.e convor.^ation also touched 
on the use of the Internal IJoveniio Fervice to at;tack admin- 
istration enemies. (Dean 3:957-59) 

(NOTE: On Septenber 19, four days later, a ].:-:\.^.o from 
Doj.othy Ihuit to Wi.lliam Bittrnan indtcat'is t'lat r'io had 
received a call from "Mr. Ilivers" (Anthony Ulasewicz) and 
arranged to pick up $53,500 from him.) 
Priority: A 

10/5//;^. On Octo';ar 3, two r'ayr, previo'isly, a vote for subpoana 

i:o..'er l;y the llou.se i'anking and Hurrency Ci,>rn,iittce v,-as de- 
feated after a major lobbying effort by the Administration. 
During this period, John Dean received a memo from Ehrlich- 
man indicating that Herb Kalmbach \?as thinking ahead to the 
possibility of the matter of privilege being raised, and 
had suggested there should be a written retainer arrangement 
in existence in advance. 
• Priority: B 

10/17/72 The Washington Post reported on 10/15/72 that Donald 

Scgretti had named Dwight Chapin as one of his contacts. 

This was followed by a 10/23/72 Time magazine report that 

Segretti had been hired by ChapinT and Strachan and paid 

by Kalmbach; the report also indicated the FBI had begun it's 

probe of Segretti because of contacts and phone calls with 

Howard Hunt. 

NOTE: P^cords of Hogan and Hartson indicate a deposit 

of $20,000 was made to the account of Howard Hunt four days 

before, on October U. 

Priority: B 



315 



Page 12 



in/?2- Kv-s. iT.ini: '--1.i-d .T'^Tn I'al.l. nn W/'r?., roMplainxn?? ibit 

'i'/.^ll2 ror.'.nii .■!iii:;5 Ij.^d V'".rn i •-'.il.T ; o /l.c ''a? ::,.;,.\; o flairoudants i:' it 
had nol: '-•'■.^n i-Tt:. Mrs. ■;•■•!!(: i.rid.i.c;'. i-.-?d ••'''!■ ••!:r> -.ould call 
again on 10/24. 'i'lii.s iii<"o3:iW7i:;lon, a.n ■ • ' ii i:o ';.':;*.ng 
v«lr>yed t.<3 C!inrlos Col:^on, '.'as p-'--'-"d en i.o .':uin r-^m. 
I'vxoritiy : A 

10/771/72 According !:o rlil:chell, he, the President, Ehrlichaian, 

Com-;.-'.! ly, ?v'cCr-i;^or, Colrcn, '-'idevan, .".nd F.iAttorf ield 
nid a ■ :;.i(:ii"ig on 10/24/72 coiic^r.rriiiia polif: ■ .. :1 .-<;!:i./it;-:.c;s, 
VJatergate, and Lhe possibility th.:t Man ■.•■:■.'<' -Lit should 
appoint a special commission (v;ith Ccni;'lly i i-.er.iber) to 
invesf-.i.'.'.te l.'atergate. (Mitchell ini: : 'i/lO/ 73 p. 10) 
:?t;ior-i !;y: A 

I'/o- \ ''■'"'•: r)!.. ' ;.; ',.. ' 0, ' .; ._o .' .-.:> G'?nt a ; -^i-io co 

11/13//2 Donald Nixon thioatening che diisclosnre oJ; Ccish contribution.'j 
unless legal proceedings against ICC and lOS v;ere dropped. 
Mitchell learned of this neno, and i::et v;i! h Si:;'!is on Kovcm- 
ber 5, '<.o dinc.'ss (jii.!n;''.es in i.he SEC cCMpl ;int . (: •■C indict- 
nent)) 

On 11/10, Dean met v;ith Segretti in California, record- 
ing their conversation. On 11/12, at the request of Ehrlich- 
rian's assistant. Dean flew to Florida and played the taped 
intov\M'ow Cor raldev-an and '^'.irlirh '"n. 

During thiij p'^riod, >'rs. ■lunt \::'.'la ;:everal phoi:C calls 
to Colson's secretary, Joan Hall, discussing the need for 
liioney so that Hall i.iight pass it on to Colson and get soi.ia- 
thing done about it. Also during this time, Hov.'ard Hunt 
contacted Charles Colson directly and asked Colson if he 
would be willing to talk to Hunt's attoxucy. At this tine. 
Hunt also indicated that financial corniitments v;ere not 
being r.iet, that money was necessary, and that nov; that the 
election was over someone should be concentrating on cleaning 
these problems up. (Exhibit 152) 

At a meeting with Haldeman and Ehrlichman on 11/15, 
Dean played a tape of the previous conversation betvveen 
Hunt and Colson and informed them of new and increasing 
demands for money being transmitted from Hunt's lawyer to 
Mr. O'Brien. Dean then flew to New York and met with John 
Mitchell, again playing the tape and relating the demands. 
(Dean---3:968-970) 
Priority: A 



316 



1.3 



M/t;- Tn T'-.'-.o ^'-v ", i!>;-!r, ^ral.di^mn i:.o].d i">-^.-^n ; !v.>. President 

l!/"0/7^ \:h:l\c\d i;o ;-.-;(: .id of: ^'V oi-jyij n ;ind rcLu^l -;;;-nrr; by 

lo.yjiig tbnn o;--u; t;'':';ii D.'^n.ii rrici-M-'Uircd hi.s I ■! r.;..: i i ;-ion on 

i!'ii •-' i'fm'.r IIa.ldi.-i;KM ••'.^r'-'.od tlv.t •■',-:t did -iOl: ,;■■■■•.■.• ■' o he 

• I v'-'i^o -.pC.ion. !!ald.vir..in i:'a".n ■■.■■';-;d rr^.Tn ;o ;■ i — •'; a 

vjvyi:; --v.i .. \ 1 . i': , incTi'dlng a na\i ■_ .-; ^ o x i; '■ri i:!io •'.■..■^■. : i.i i. 

/;'•■'. f; ;■<■!:■.•. '"• I i'''../3, Oiv-n subi;iif:ti-'d !:;'<di a I'l/ifl; Lo ■'■i '..'- i '..n . 

(Dean 3:'>\')/) 

.Di-v.'.-i;3 i''';3 ■■•iviod, ^'.cs. limit f:old Jmrja MnCord i:hat 

■'■ . ■'o\;ovd •■':;: Ir-il ci.'.ri r !.;'-d a 1.'^ 1:1:0 r \vlvich i:'...i_>'!ion;:d (:o 

''hl^,)v; Che V.'hiLe I'oi'.r.e oat of the v.-atof." 

i'ote that Charles Colson tendered his resignation to 

i:he President on December 2; conveirsations on fTo ^'.•: riibe r 29 

"nd 30 pay ' 've ,:::>Tai-^d to (Ivt. 

^:^o.;;,Ly: A ( i ' /- ? ■ M /■ :;) ; '^ ('i/.) M/-) 

12/1- ColGon r.lai'.is he discussed the cover-up v;ith the Pros- 

12/31/72 ident dirring this period; Hunt began to put on increased 

iiv.'-.psi've roc support "id funds; T'hite House rources iriioai:G_ 
ijie "..<-■■: i.i^'^iit is •■ost worried a.b'.iat i;a|--?.s f''.i this ip..riod. 
Priority: A 

12/5/72 On December 5, Dean furnished Haldeman with a draft of 

a pnl)lic PtatGir.nnt on \vatergate . Batween Decenber 5 and 13, 
:'•'• Ic' .""-:i f. 'Ae ij: 'o .'■.iu:! i.chi-nan mUo in l:ui.n ;;;';ve it to 
.'•'nig lev-. On 12/13 ■'•■-■'. Idoaan , Dean, i>JOj;e end /-iigler di;;cii.:;sed 
i:he p;i.'Oi;or;r!d staterr.ent and decided that nothing should be 
iiade public. (XR: 2253-55; 2674-75) 
. Priority: A 
(12/19/72) (V'lVK: On Decenber 19, Charles Colson left the White 

House. Note that, following this, Colson had no routine 
responsibilities or reporting duties to fulfill; contacts 
with the President continued to be frequent and extended, 
and nay be assumed to have dealt with the issues and items 
i.iost important to the President.) 

12/25- McCord has testified that, during the month of Decem- 

12/30/72 ber, the Watergate defendants were subject to intensive 
pressure, urging them to falsely claim for purposes of 
defense that Watergate was a CIA operation. McCord stated 
that on 12/21 and 12/26 he v;as contacted by Bittraan (through 
Alch) with such instructions. Further, Mitchell has 
testified that between 12/20 and 1/9, he had learned that 
Dean had instructed Caulfield to contact KcCord. 
Priority: A 



317 



.■i;i! ]/s 



1/5//3 ;:o Ciiil.ri.ol.d, v.vi..r!-''.n.(» di'.t, "if . ; f; ■, ^ ::3 ito i-r:ir.':;uafIo i ho 

V''!i:fnj:^;;!:e tl<ivni;^'!-";iii;!> i;o bTnma l.ha (:t\ r'r.-,; ; Sr? 'ivnj'.k :in did 
viof: c:^;';^!!, 'Vvv-!.i;y ; • e In i;h« foreoi; ill. 't. 1.'." 
(K,-;in)>.i; 3'^ >^!3) 

-n ].?/31., "u,!!; V... .:,; -o C)1.Kon, ;;:i'vUij5 ^.l; :i; ('ol;;cil 
speak with Hunt's i?. LiJO' :;.:y, ij-i (:(::• in ; '.lie letter also Rsks 
Colson to rnalizo the rea.'Oiis .'or limit's guilty plv"-T. In 
a 1/2/73 ' •) ■■ o D.^-^.n, \n'.th a r.jwy o.!^ that If-itOf; i i;f,-.' — ri , 
r;ol:-cn .-'o:, ■'■.7 ^ h:;t th;> hall do I do?" (■' h:' Tt ■;';■/') 
i-'riority: A 

1/3- Acrordin;; to Dean's testiraony, ^vhrlirJii-jan and Colson 

1/.'VV3 we'i:."2 i ..nl.-r^d in ilir-r."r;,:-'.OMS of r:::r-.-i;-i..-.-; ■•■'..-v.'^n'~'.y v.'ith the 
Prn.s id: 'lit '.• J •;•:.■;.•:! n J- ui •..:.. y 3 .' d '3. 

Coli^on ■•■■■'t '/l.;-!i r.M;..i.n oii J.ciii'-i,:y 3, l'J/3. '\i .T^nu-cy 
Colson laat v;ith Dean and Khrlichnian indicating he had 
spoken with Bittman and given him general assurances of 
clerrency. Colson iiad furtlier told Bitfinan, "A yeai: is a 
long tii.ie." (Dcr.n-- -TR:?.270-/1) 

On January 6, Doan called Liddy to explain -.Liy Liddy 
had not been called by Krogh; Liddy at that tine said he 
hoped there would be money fox'thcorning for his lawyer. 
(Dean statement) 
Priority: A 

1/8- Colson discusses executive clemency. 

1/17/73 McCoj:d is contacted by Bittman on January 8. On the 

same day, and a;-ain on the 12th, lAth and 15th, Caulfield 

spoke \:i.\:\\ Iv-Cord ..sout a /lilty i>loa ; Caulfield inferred 

interest and concern in 'h.igh places." (llcCord 5/18/73 

statement) 

On January 11, Hunt pleaded guilty in District Court. 

Following this, on January 15, Barker, Sturgis, f^onzalez, 

and Martinez plead guilty as well. 

Priority: A 

1/20- On 1/19/73, in response to demands on the part of Hunt 

1/24/73 that financial commitments be met, Kalmbach vjas again asked 

to raise money for the Watergate burglars. Kalmbach refused 

to do so. (Kalmbach testimony) 



318 



Pa',0 1.5 



ili'vins', this pp.r5.od Caulf^cld brnu.'jhl: t:o O-j-.n J'<-Cord's 
,-■>..•) '..■;'"^ri.(i:''.;f^ ].'';Cord 5.nl:crccp;-.nd v''""'n'- calls <:o r'.ivo. ;i;.',n 
.• i'v. .■•;.•; i:-^s. (Op.-ii !il-ai:'^.nr!rii:) 

•.'.■■.(.J. ' i;y : A 

].//'3- (.Dnring !:his p.^ciod .'.l: n^jpaav-S i'lO cao"': u;) Ivvl haf^'n 

?./i..3//3 Lo coi.,G apart, and the ProsD-dcnU turiuxi l.o Ch.i ..l.i-^.'j Col.son 
roc a<\-.!^.i-c . (S,A.)) 

•"! 1 !■!■"! 'ii/il: i; ; ^o;i.e ::f!i5f-o;u::i.u.«^ , (^an.lfinld a-';.! 
C'"<;if:;".oi d. ■■ci\...J .-..id i.-.M.M.'od orr^ri.'.s ol: f-;<ccut:ive cL\,'.~;;cy. 
Caul..!' ■■".<■: I l-.ul.d I'cCoi-d he \.'as, "i'oul.j.ng up the ^ama plan." 
(licCord staUeir.cnt) During I;'ig Gray h.oar:Lng through Feb- 
ru.ary o9. 1973, Gray's tiestTir.ony regarding evidc-nce turned 
over i:o i,'>e V'W \y.\s cou.'^ldni.ed very Kcnsitlvo . QncisLlnns 
of oicccui: i.ve privilege v.'cre also raised vjhen tlie po.-oiilhlllLy 
of Presidential Aides being called to testify became 
apparent. The investigation of the VJatergate break in by the 
l-'BT, .-Tfcd i:b.e '■i!i,-!si:lon of \'ho at !:he ''h.iLe l'our,e '.'as appraised 
f".nd .' :i . .^' !.'..".d '-a :-''h an ' i . ■ .■ i' ^/' i: ■ m , ■■o iv..,-. ■•. ■ ^ ;:i;d as 
isrj!i;;'3. iOi'-i.-lu;', i:hl5 p;ri.-.iod, .•'nd ■'■e ;.m. ;i.d i. :'"rLa(:ely 
preceding it, dL-JcuHsions among the k(2y Uhite Hoi .-se staff 
and with the ^re^Jident, probably dealt at least partially 
•with (;';e FBI's x'ole in the investigation, Gray's role and 
aclivitio.s , i:!ie do:;ti."uci;ion of e.vidonce, eicecuti-ve privol!\''';e , 
and related i';f;nas.'; ("On ?./5/73, chairman Ervin introduced 
the resolution to create the Select Committee. From this 
date until the defeat of all amendments and tlie naming of 
Committee members several days later. Dean indicated of 
meetings and discu5.;r.ions ;;i..ong t;he ^.'hite I'ou:;e staff 
revolved around means of toiap.iring the t^oriwiitiice ' s inandate 
and performance. (Dean statement) 

The President himself has indicated that his interest 
in Watergate rose in February and March as the Senate Com- 
mittee ^:as organized and as hearings v;ere held on the Gray 
nominations. During this period, he began to meet fre- 
quently with Dean in connection with these matters. 
(8/15/73 statement) 

On 2/9/73, Dean met with Director Schlesinger of the 
CIA regarding the retrieval of certain Watergate evidence 
from the Department of Justice. Prior to this time, Dean 
had learned that photographs linking Hunt to the Fielding 
break in had been turned over to the department; Ehrlich- 
man sought the retrieval on grounds of National Security. 
(Dean statement) 



319 



Pnr;c 16 



i os.'ji.bl.e rr,i; f ! o 'MA i.o vi^i:ri'r:ve .•■.i:i-'a ■.v.'.r-iicn , 
i'lrfor:! Cy: A 

■ ■r; iu;red l:lin r>. oplflaiit; 'co Totco M:fJ:chnll i.v) ••'.<"■ 'ii: I^'s 
cole i.n the burglarly . I'e says Ni:;on's remaj'-s pvuvG he 
knew no inore about the burglary and co^'or up than he has 
publicly .•■o:-n-.f:i-.-d. Q^'ev York T*vr;e:3 article, 6/10/7'^, 
news filo '■'••45) 
Priority: A 

(?./l6/73) (NOTE: Nixon met with Pat Gray ro.p,arijin<T the nonina •. 

tion .^or V"'5T ■Oi-.:.^ct'"';c. 't. > hir; ■■-">'' ^">, he .'old Ci.-'.y hie T.-.-^.g 
v.^lyin:]; v.:i : 'r: j; :;X ))r ■ ■ • ■ 'C ' 1 , , -i: i '.o : : ' ^■/- 1 ; ■ ••;y. 
(Gray iut: 5)) 

2/21/73 On February 19 or 20, Haldeman requested that Dean 

drav; up an' agenda for a meeting vjith the President rc- 
gai'ding natt.crs V7hir.h fhe Presidnnt '■•'coald reflect on 
as a rer-ult of the T.-i Cosf:a i.-:o.i;in;;3 and sub::.cr;L'.-m t events. 
This was a likely topic on February 21, 1973. 

The next day, Februai-y 22, Halder.ian requested Dean 
pirepare a briefing paper for Hr. Ni::on's meeting that r?ay 
with Attorney General KleJ ndien.st . nalder4)an, and es- 
pecially Ehrlichi.ian, had coraplained about Mr. Kleindienst ' s 

passive role in the investigation and prosecution. (Dean 

TR:2308) 

There ^•as an effort to bring Kleindienst back into the 
family to p'.otect the V.'Iiite House in case firrther criminal 
investiga. tio.i.s sl-ould load back there. The l.'hite Mouse 
wanted favorable, active direction from the Attorney General. 
(TR:2307-09) 

That talking paper is Dean exhibit 34. It explains 
that Kleindienst should be asked to remain in office until 
after the V/atergate hearings have passed; the White House 
felt it could not afford a new Attorney General to handle 
the potential problems. (Dean TR: 2975-76) Haldeman told 
Dean that exhibit 34 had been reviewed by Mr. Nixon (TR:2309). 
Priority: A 

2/27/73 On February 27, Dean had his first Watergate meeting 
with the President since September 15. At this meeting, 
the President discussed his conversation with Senator Baker 



320 



?;i,:,cj 1.7 

ri;d Af.v.oxr.iiy C'lnnv/nl Kl.oxiirt.lc>n::(;. '''hn l''vv'iiriciit: .•iK!cod 
3)-v'.ii to v.-;i;o';t; cllniiMily ^o hi.>i xti (I ■: ^l'i•"■n, .-nil i;oi!!;-...i Hil.if.- 
nd hi.m on i:'ia n/jco J.1.c>iit: job Dnan had donn in ('"-Lling 'v;li:h 

i!^:i VnCcrs-iCfi 3.«:^i:n. (Oo;'- 3:991-^2) 

(■'.OTi'l: '\']\ci :.,:■.; I; Tii;^ v/i.i''i i:he I'voMJilimt:, i'lri.-lf chr.nn, 
■'lid 'li,i:i:; if. is unt; In.-i ■; v.lif) ",'!i(;t;" \s, bnt if: ; 'loul.d ba 
■•>"">.: a. l.l.nd i:'vr>'c a Mrs. <lif:t 5.s on ;;he l;oard of Clia Nixon 
Fon.r.dal-.i'.on ;i.id a Ilr. Hit:l: was involved in the ri'.nneling 
of fV-'.-pnli^ii -i-MiIs to Ui 1.1.11.; I-iil].!!.) 
■^;i.oi;ity: A 
9./'/.u/' /'I Acco'.ding l:o tbe '..'Iiite House, D'^.ni told t'l-i Prnsid -nU 

on February 28 that there was no White House involvcinent 
in the Watergate, that I'faurice S'Lans was a victim of 
oircumstancns, and that CoI;;on ■• .' s a lij-htning 'cod becatise 
of his ■.■!;|^)i!tation . (K-'iibii: VOA) 

Dean states that h.e told th.a i'.VGsidcnt, lie (Dnan) 
"was also involved in the post June 17 activities regarding 
Watcrj>,ate" and described to the President "v.'hy he had 
1.-;^.t1 p.;oblni5s ." The P i.e. r; idc n t '.ou.ld not .■'.ccc'jt his 
<"n-^ lysis, .-u-d told ho had v.o such probloins. 

The President also asked v.'hat part, if any, his brother 
had played in the Vesco affair. (Dean---3:992-93) 
Priority: A 

3/1773 On ir.-.'.rch 1, Dean ■■■.ot v/ith t!ie President i.o ;a-Gpa7;e 

for an upcoming press conference. At this time, the 
question of vjhy Dean was sitting in at FBI interviews was 
anticipated. According to Dean, the President asked hira 
to gather material regarding the ur,es and 

abuses of the FBI by previous adiiinistrations . The Vhite 
House account does not include this request, but indicates 

the President did ask Dean to prepare a report. (Dean 

3:993-994; exhibit 70A) 
Priority: B 

3/73 (NOTE: According to Ehrlichinan, in March of 1973 he 

had a discussion with the President on the Ellsberg burglary 
and on the need for security. (Ehrlichinan---TR: 5919-5920)) 

3/6/73 Dean states that around March 4 or 5 he told Ehrlichman 

he thought it v.'ould be difficult to win a court test of 
executive privilege regarding Dean's communications with 
Nixon because Dean seldom met with Nixon and had very few 
conversations which could be protected. Following this 



321 



rrif: 



13 



convf;i;;'Mi:i'-n ■/iil'i ;^Ii)-l '.ii!\r' -n, "i")'"-;! ' ^■';;^m y,. 'ot^xurr r-.'Acl 

i /il.Mnj^ ■,7i.i;'i ;.\iL-.oii /vih ivc ,. v! :; i m^ T ^';'"'";<^y, ^ '<: Hl-cn'ij 

oxccut:Lva 'jrlvGlc^c ;;,;':; |i.> lines, j.-:-:,61v.'.n;5 i.l^'i: i.uny j^'K.nld 
cover .fonv.ar as v;c!l]. as current VJI.rli:a llousa C:.i-ilo\a::tr,. 
(■R:.:bl')ii: /O.V) 
Pr;o..;.;.y: .i 

7//V3 ': • : ■•:ii;;;. d M'-U: h;;5 . -^';:ii\!3 \;;l;!i rl"^ " ■ • ,;!: 

ua if ■vli / lif^alf; wiLli G..-.y':3 ^ .■: '^ ^:. >■•;;' ;i ■ ;i''.>.; . ..; r.,;', ' ,y 
Coi.i.iiltt.ee. The Presldoni: ...is c.iii.Lvnl oW C.r.iy, ami In- 
structed Dean to tell rAv. Atiorney Cnncral to cut ol'J; Gray 
r.roi.i t.i-j.nin,-^ ovor ".ny '": ' or--,: \Jy\:rri'r:i:o ;,.o. ports to the 
Ji'd J.cK.ry fo:::..!i.tt^'(2. ; ■■'.■j:0')':-'j'j) 

The \:Iiite ]lo\\::'i < 'i.- ■.■-\iu: Is f.l'it T^tn ;j,-'.i'-i ;-o1(l t Ii-j 
President the V.'hite v.'as clean. (Exhl'olt /OA) 

Exhibit 10?., a i.;'.pe i.ecoj.ding oi; a (;onveri;ation betv.csn 
Gray and T'n .-licli.an on 3/7 or .3/8, indicates that I'ran and 
Fill;!:?''!' . ii '•:i\ ^v ■ y.ton'sly di ■;r\i;;cnd Deavi's h.-.y-ciA-v.^ v;n:h ; ha 
P'/esid. ni:. 
Priority: 3 

3/8/73 rsoan .';tates th.at this rv^iitinf', sr^ajn dealt with Gray's 

■providing .Piles Lo i;Iie Judiciary Coi.M.iittees; i I.e -''lii-.e 
House indicates the President asked at this tii-.;: ..hether 
Chapin had assisted Sogretti and had been told ho had not. 

(Dean 3:996; Exiiibit 70A) 

Priority: B 

3/10- On I'arch 10, !:he President phoned John Dean regarding 
3/11/73 the issuance of a statement on executive privilege. This 

was issued on March 12. (3:995) 

Priority: A (JDE and CCC) ; B (Dean) 

3/13/73 At this meeting betv;een the President and Dean, vjith 

Haldeman present for part of the conversation, Dean testi- 
fied executive privilege was discussed, and that he had 
told the President of the money demands of the convicted 
Watergate defendants. The President con.-ented that $1,000,000 
should be no problem, and asked \.'ho v.'as primarily responsible 
for such demands. 



34-966 O - 74 - pt. 1 - 22 



322 



I'a.-o 19 



T'lr; Pvo.-^xdnnl; ■'■.}.co , -inlrionod C'lat: Hunt; brA V.'^nii 
pj "'■..vT.!-..-.d i-..\Cciii:?.vo r.lrrr icy^ rnd (:[->.-• i: ha had dj n^nsij^d 
ChG ; .itt-.nr '.rM h CoI;;m and K!!r:i.Jch..!.-m. (Donn 3:993) 

3/jy://3 J^^iG i'jre-^ji.dnni: and Dean dincusr.cd tii.cJi.ii.iij^ pvcss 

i-.cm Terence and i:ha issue of G;:ccuC.3.ve p.:-i.v:'.j..':;^n . The 
Presldnnt also rained the question of hov/ to ^et 'Ton 
ZiRr'ler off i:!.e Iiroic on '.va I n i;;;;,a te related <iier;f::*,nnc!. 

i.'vj.oj.ity: A 

3/}5/J3 Following a press conrerence, the President roet v.'ith 

Deair and ^''■;o:ce . They diGcussed the press con.rerence and, 
accoj;din;j to V.liite ■.'on.se accounts, resolved to use :;:'^i''!:-v^ 
tion or po\.ers" rather than executive pcivil'i.c^e te* •;)ii;Ology 
(Exhibit 70A) ■ 
Priority: B 

(Note that 3:00 P.M. I.o ^■J^7 P.M. n-et.ing should be 
on llarch 15 .'.aiiier tliaii raf.i:h I'i) 
Priority: A 



continued 



■^: 



/ 



323 



P.i-o. 20 

3/l.'/7.3 ■.•'!■.; '''intij "■.>uno indi.c.'.tos t'lo. T'^^^i^'fii: i.iol: \,'j.t:h ji.'^.m 

.tkI vr-il:.'V.t!;v:!-l hl.'i op;->osltlon to l]\^. iifip. of :• ;-.i7 V'.i: J:l'.-s 
'■.y tV.c .Tii.'i I'-J ,j-y '"()■ V v;.!:!:co. "e nlro r.'i-.:> '•i'''' "'^'n''- report 
ha ,-'Ci;n . ~vi M'l'. '.7 ..1 .1 '"'■" ■-•'.•'.vt!:: "'■"■an i ;■■■■' 'c.! i. '1 i ' ■^ •■■■-.U.i'ioTy 
rolca.nr; ul: n ■ ^ :i-l l;i.:-.i i-':.oi;l; i-ii.;-.''!; prcjiu' icii i.-a i.x;-,;'.l:s of 
ir.pocent people. 

Tn 'n'.'i KtatGVient, T'-o.an '^or^r.i.i'had t;!:ls r.e.-.f. J.Mf; .ts Hj;;- 
i-.i'Sf:lr.'^ ■ i t:'i Xlof^lar ^-otters i:o '■;■ <'nl^.n'.;i-:(' un dii ;iri;'--.r the 
ov'-vicni '.ly'f; 'vrnc?; •-.OTircu-e'.r-.cr^. (r;-ii!> it; '/'"■■V: ": ■■..i ■ ■>: T'CO) 
Firiority: A (Colson call) 

3 (remainder) 

3/] 7/'/3 ">.''",n rlc.r^cri'K'r? tio';; rretinr; -is .1 rplaxod, rflnblJiig 

i"0!,v >■!■■>•; 'f.;>. (3:''''); ■''■"! '"li.i.c "'■'■■.:"i'> : ■."-v'-t.;!:Ch iii'^Vw'al. 
i'.iiilc.s iU,::<.li;-:.r(1 , /-lUii-^,"'' ' ■i.-'j i;o i'.-ih i.'ii.i; VOA, ii^n -'iii.MLoi.y to 
this nenti'-i^, the TiN^s i 'i-,i\t Viad ;-r;i'o a note on a itr'^.ss 
siirv.-sy contain.iii:» an article allef!s3Ti^ "I'ite -'orse involve- 
ment for follo;r-up. At the ineetipoj '^e''-n suf posted aj.iin that 
t'iiey l.rin^ out lO'S" I'Ujsirs and th.e Presi'ler.t and Kleinj'ierst 
h^.d af'-vi:ed JiiiA .■jf;:^.i"yt it. Several nP-nc; vr.re clisruG-:- -d ns 
poEsi'^ly subject to attack; Colcon, "Vil(lc'ian, F.hrlic'i. nn, 
Jtitchell, and Dean, himself. The President aslced Dean point 
blank if he knew about the planned brealc--in in advaiice; 
Dean said Ho, there ras no actual Vi^ite House involve-ent 
rc^ardlrifjs of iip^iearaices .?.ycc7it possibly ?tr?.ch.in. Dean 
told the President, ^'a'^r.'.der liad pus'ied Lic'dy 'i-'ird, !ut 
thnt •■■ildcncm \.'as not involved. The President wanted 
Faldeman, Phrlich-nan, and rjean to talk to the Connittoe, 
and Dean resisted. 

It '..as also at this nretinf;, according to botii the 
'■liita ::o-.u:a suv--.ary and President "i;:on's 3/15/73 state;ient, 
that ;"i:<on first learned of the plunbers' break- in to th.e 
office of Ellsberg's psychiatrist. Dr. Fieldini;. 
Priority: A 

3/19/73 Senator Ervin appeared on Face the "'ation, accusing 

Dean of hiding behind Executive Privilege. At this 
neeting, it was discussed v/hat an appropriate response to 
the Judiciary Committee's questions might be. (Exhibit 70A; 
3:997) 
Priority: B 

(3/19-22/73) (on ::arch 19, 1973, Paul O'^.rien came to Dean's office 

and said that "\jnt wanted 72,000 for living expenses and 
$50,000 for attorney's fees or he vould reveal the seamy 
things h'unt had done for Khrlichrian at the l.'hite !Iouse. 
Dean told Ehrlichnan \.'ho instructed Dean to call Mitchell. 
On "-arch 21 or 22, Mitchell told Elirlichnan that Hunt was 
tal-.an care of properly. (Dean Exec. Sess. 113-119)) 



324 



'!ip')lTi ■•lo.-.n r.VrXt^s ^\\.^ ^.^■•rw^^.r-T'A '. i l.'i I bo. Prnrifdent clrafLs of a 

vo.rs'.n.v-o 1)y Pi-!.va lo \Mo. .T-i-IIct nry Ovinlfcitcc, nnd Inter, net 
T;ith hJ.ii on t'lO. ^sninG .■<ubJor.t. In a 'il'iinc ciinv-rs.itj.on Intor 
tills r'ny, ■loon testifto'l Iirj Inl.i! tJ'.e i');o!5.'.'eiit he v:J.«:ho'l to 
ne.nt vith !iin ?s peon .is poi'iiole, T.rcatiKu hn i! ■''•'i not I'nl.ly ■ 
loalj.i'.e .-'H Che fncts o.\v\ the irijiTi rat Lo. :; of ;h..:jo. fnct:; for 
th.c ''•n'tG "ourte. 

"ho l.liite I'ouse details a ncetlng viitch '/as a cil:5c;)Sf.J.oii 
of: '-Itc/'oll's ^'i.ohT. •■.-?, Vnyco, .'nrJ '^uco.ey's press co\i!;(i).,-;or.<n. 
'"he. ■\i;r'.:i.i'.>.\l: .".'.d "'coi-e .•-r^i.-eo.l that the \/'-oli'. l!ivcstl;iai.loa 
■;hir,.il(l he ^lac'e public; later that c'ay, the ProKlt'eiit called 
Ooaii and '-as ro.assured that there ^7as "not a scintilla of 
evidence" to Indicate 'Tilte !'oiir>e Involvement. Dean <?:i.f„'7csted 
at this tine that he p,lve the President a nore ln-de.ith 
hrloflnr? Oil \'hat had l -.-:;. Irod. (^-.aa Ti^OyC?'!; rT^hihlt 70\) 
rrloilty: A 

3/21/73 Pean i-^^^t vltli the President on th.e r.iorninf; of March 21. 

Accordliio to Dean, his purpose In this rieotini^ vms to give 
the President "a full renort of all the facts that he knew and 
exnlala to hln v^hat he hellcved to he the l.ipllcation of those 
facts." Fe Cold the Pcosido.it t'u-re vas a cn^icor ;',roin'n.;> In 
the presidency and that if It vere not ro-.ovnd, tlie President, 
himself, v.'ould he hilled by it. Poan discussed the planning of 
the T.'atersate affair and its inpleraentation. He discussed the 
January and Fohrnary plannl!'.?; r;'oetln,'»s, and r.entioned he 
'■■ad infomnd rnTc'e"an of then and received instructions from 
hln to ha.ve nothin;^ to do v.'ith the project. Te said that Colson 
had put sore pre-Vatergate pressure on Ma;»,ruder relating to 
the operation, but that he did not have the facts as to the 
decree of pressure. '!e said he '.-.'as not sure if Mitchell had 
prior hnov.'le'Ip:e of the hreah-in, hut th.at he had been told 
that hoth Mitchell ard raldevi.n (through "^trachaii) had 
received v.'ire-tap Information. 

Dean then recounted "the highlights of the cover-up." 
Ke said that he, rhrlichnan, Halderaan, Mitchell, and 
?«ilTTihach had been involved in raising and paying money to 
the defendants to achieve their silence. Fe said that the 
noney-denands from the defendants, especially Hunt, were 
increasing, and that Hunt was threatening to reveal the 
"seamy things ... he had done for the VJhite House" If his 
requireraents were not met. Dean told the President that 
Magruder had comjnitted perjury before the Grand Jury vith 
Dean's assistance. I'.o stated that nore rioaey and niore 
perjury \70uld be reruired ''to perpetuate the cover-up". After 
Dean nade this presentation, !'aldenan cane into the 
President's office. (Transcript 23.?:-2334.) 



-a.-o. 22 
3/:M/73 



325 



!:".;'>.T 1^1: l:':r> r.rif.v.'^i.";.;'.t'.o.i) 
(ri-.>.-:-.>:rx-.it r,li:>..15) .■s >.:■ 
7.'\). 



fTrlCi "^-ii'-C ''O'r^r: ;><'00".-'. t: (".iiibi.t 



\'c a rocoii'I ^^'''^tln!^ on the nrtornoon ol: i;';ii I?!.';!;, ;'•!> 
rire'si.uont riot TJ.i.th Dcm, '-alnOi'i.Tn, ".xc'J.ev ind ;Ci'.rlxc-\:'.'sin. 
^ean tnstific.i that he told t'-n yiresir'oi-.t that "ir^.vy, r.ilt'.n:vin, 
and "hrlir.K'ian '^.'erc all ii-;^i i.otabla for obstryctjnn of justico". 
"o. ;-'';i.il i.t vr.s ro loiv^Gr nojrijlbla to ;5o.rn>t""':-; i ' > ."ii/'j; vr,! 
r.'^ii '>:':aV. '!0 ■oiil'^. 'O lonf^rar pav■t:■■^.■■_^ate ;' i i i- . ( '.- i-- ' ,'t: 
234-35) 



3/22/73 



3/23/73 



(3/24/73 to 

4/15/73) 



("3/28/73) 



The versions of the lo^'tli-.^ nrt')'.rod by ■'al-'o.-an and 
the '"iltG ''oMSf, a^ain iT-iiflirt '/Ith Po'-i''; -rroMnt. 

('raic'er-aiv-Ti- iv^,;vi ,t: :)/!.'; 13, ;;^;;n: ■ ' •;: ■■) 

"riority: A 

The President net I'ith r'alde-ian, Eiirlich.Tan, :b" tchr.'ll, 
and Dean. T7ean describes the discussions alxiost exclii.'-lvcly 
devoted to the ni!ostion of h=ow to deal ^Ith tie Vrvln. 
Co nit toe: he hold It 's a furt'.or Indlc.-'.tf.on t'-.at t'-. :re 
■'ould be no c<^fort to stop the cover-up f-.:o:i coit '.■'lin';. 
(^ean 3:1001-1012) 



It •■ns alro on 
T'-rate Jitc'icr'aj y '"n 

•'riority : A 



V22 that f^rny, tootifyim hoCore the 
■.I'ttce. pt.i-;.^:! tVi.nt "lean 'v>..\ 



;'ci"ord '.-rote a letter to the Court, char,';i:i<5 porj'irv, 
political )!re-;s'.ire and th.e involvcnent of others in th.e 
"ater^^ate ca'-.e. The 7r.^:-;ir i^n.t sent ^.r\n to Cx'.-> '^.iviij to 
prc-;iara a report of his i:\\'ry.T,:i-\tTor.. 
Priority: A 

\After Dean had spent a vreeh.end at Camp David without 
preparing a report, the President turned to Ehrlich-an and 
■'itchell, v!iile T?.a':ing inquiries of others. Sv rid-Anrll, 
he had received both reports: he turned all infornation over 
to Henry Petersen and ordered all staff to testify before 
the -^^rand Jury. (President 8/15/73 statenent)) 

^riean, at "aldeman's insistence, r-et with "^sruder and 
Mitchell. They ashed hov; he planner' to handle the nicetines 
of 1/27 and 2/4, statin<^ that if he testified differently from 
their earlier testinony, it '.'ould cau.^e pro'-le.i?. "^ean did not 
a:?ree to corroborate their accounts. (Oean 3; 1000-1007)'! 



326 



"A 



23 



Ci/">'^/ /^) ('.ft^>r Jt V.rc.-vif? o'.^VL'^Mr; tint '^c.'n vi-.'iTd ,:oI-. .iV'.^-o.-ivo a 

rp'^oiirt of ]^^.r, i/.vvcst Lrntioii, i.'ic r'i.'!>.!;'!''i^iii: '' ijrii-.Ci^il 
"^'vrlichvinn to i.ivn^-.tlf'.Tto, r.o ■'ii-!i'l;la<» l:'v->t It: ■:\;s ivm'i it o 
li.i.-i f;'-.it Dc;\-.i "'•.•r.s :'r. tlio (i'n'nj ;\) to 'il.s oyol re."-. 
(■■' v1 ;,-:-rv-n ^::C nciiosi.tnon 1'i'-IS'- '' •■■■■:'- it "/I'.'//' 

'•;■ .-..iti) 

//I//3 ('.'ais is t'\3 only convr:i:n:lt\nn \.'i.th Coj'-on, TlatT.-pcn T/?l/73 

■iid ■'■./V?./n. :'ota t'.i.it r;nit r(Mu-;i.vnd 'J'^O.OOO ('•.irtiia t'vs 
pcirioci, v.Ivfch i^a I'aTiositort on >';/''i/73. (l!t is v!n1:i'.?1y t!i/.:j 
neeting will be on tape, as it apiiarently took pl.'.oo. in 
San Cler'.r.ntf?. ) 
■Priority: A 

('/3 1:0 (\%rlio"i- ■■■ I ■' '.scui'-'i^u J"'' , ;■ iv;i:;; ;; Mth"LLL -^i."?, Jr., 

A/7//3) Jur!^.o In t.Ma ::ll.'>I^.:;rt; Ms;?.) 

('^■/5/73) r"vav "ltiT'ri\w.'3 b.is nor-.lpatlon ar: '^iroctor of i:'-t P^tA 

(':/5 to ^'^urniij tha April 5-15 ;vn-ioH., F'.r 1 ic'i an con-'uctcl 10 

A/15/73) interviews pursuant to iTixon rtinuest 'I'l irvcfsti-^ato '."hite 

House people involved in 'Taterf;ate. On \pril 5, at "an 
Clener.te, O'T'-rien told "hrlich-ian about the planning of t'le 
"■'■. ter;~.-ite "'raa:---iTi : '^hrlicK'r.an t'len i.ifnrned "ixon. 
('•'irlic-irian transcript: 5731-5782; 5^.75)) 

( 'Id/l^) (on ^('.ll^, rhrlic'man net i-ith I'al-ibach to discuss 

'!.''l:'''iach' s tcstirony I'sr^Td ijip t'lr r'>"''s;Tn-~ of :io:iey for t'^e 
''■"tevrate •''of''~r.'V".nts. "ollorrTT^ t'lls iv"o':in", it is lil-'ilv 
':''rlic!.:!7n '.-ould hive discussed Kalnbnch and liis activities 
with the President.^ 

('t/6/73) (Dean told Silbert about documents given to Gray, i.'hich 

Gray had denied receiving. Petersen su"-§er;uently discussed this 
'.vith the President, indicating to \-±t\ tliat Gray's position ••■as 
untenable. (Petersen interview)) 

A/IO to On April 2, Dean's attorneys went to the governnent 

4/13/73 prosecutors and told then riean '..-as willin'T to cone fon-ard 
'■■ith everything he had on t^e ca=;2. 

On the nornin'j of .\pril R, Dean contactsd T'alde?-.an (then 
in California) and told bin that he "as roiig to neet vith tha 
prosecutors th.at da;-. That aftarnoon, after seeing the 



327 



: *,;.' 



/i/n to jicor..^r.:itorn , r?oa-i nr.t v-ith '';',''. V-',-n ::.v\ 'l'-r1 i.r.!i;ii.n fa 
l.llJlZ r'-7;1.;c'.r>:;:i''; oft'ice. The ;:on(,>f,ir; ;'ny, ,\>rH 9, n,-.n-i :r:t 

co-.'.tn.rued vi.th ■-:'I:cb'''..l.j. r.ritl told !ilm 'lo ■. 's ^^l i •'•vr t:o tonuify fviTTy 
rt >d 'y):'.'i; J.y. 

'.u>''o;i2''Oul: !:ho \'o.iVt., noon nat w\i:Ii "nl.ilo.n.in ^-ivi .'!'irTi(''.'%^''.T. 
\ s).);p.tc,'^y .ippnarcd to be I'ovoJ.op^p.j^ to -part:rally iineovf.i: t'-io 
ccjvor-up: to !'.ave i.'iUclicll stap fo):\.u"d. 

r.:\ ■•.'■■n. I?, r ' ■ 1 ■ (I • . ' •■' 'I • -^j -! ""■ ..- t:-nt 

'"o'oi '..'.'I i'cv"e.l.i>'v;r.l -.x pj, .1 'i) '■. .i!;-?. . I i. i;.:'-^! 1 oat'; they \;oi."a 

r.y,iTc-.n1. a'.'ont "^oTson'r! po:;ition a;id felt ho vas scrar!ibl5.n3 to 

protect hlnso.lf. (n.-.-m 3: J.jOC O.OJJ) It is likely that those 
natters rcre th.e s'.fj.j'^'-.t nl', 'jr ri^fi»rrad to, in convor'jations 

the Pro.rsirlont had -.nV\ ;'■•-? -'i'r-s '"'iv'.;!^, I'-ls ;-..'>viori. 
Priority: A 

't/lA/73 On April 14, Ehrlichnan, at a . rotinj i/ith T'alr'c ian .--Hi the 

Prosident, had presented a tlioory of the ''atorop^e -iff air. 
Based on hearsay evidence, it held that Mitch.ell, ■'a:;ruder, 
and Dean '.'.?.ro involved. Th.o ?i."CS"Ldent ?3aid to S'^.t sip a r-.eetiti.!; 
'"ith those thrc-C and to i;,'"'-! thoi t''.i.t iJ'.^y iMre f.ot "^ctv i.np. the 
?ro;?i'hint if tlicy i.T-ro not telliii^ tlio truth. 

J'aldcnan and Ehrliclinan couldn't reach Dean, were told by 
Kitchell that his con.Tcience VTas clear, and heard ^coyi 
''a.'-rucior that ho had jvtst told the •'■qIi:! story to t;":R U.S. 
Attorney, "aldc^.an and "hrlic'>'".an roiur.'ed to t'lO "rosidr.it' s 
office and told h.im this. Tho Frosid.-^nt oy.prossed co:-!cern 
(J'aldenan interview/ (i/l''*/73, p. 12). 
Priority: A 

'■.115113 On April 15, 107.3, :;--.on --.ot vl th ".oan v:ho testifisd that, 

inter alia, tV^e Prosi'* -.nt told ^.\\v\ t'-.at ho had been johing when 
he said that he approved the raising of $1 nillion for the 
'.'atergate defendants; that he had been foolish to have discussed 
Executive Clenency with Colson; r.oreover, Cean told him about 
his meetings with the U.S. Attorney's office. On this date, the 
President had several meetings V7ith Ehrlichrr.an, both before 
and after the significant Dean nceting. At one of these 
meetings, the destruction, by Gray, of certain docunients was 
discussed. (Haldenan d:!C Deposition 5/25/73, 254-255) 
Priority: A 

^/15/73 Following a neetlng v.'ith '^otersen and the VatevFjate 

prosecutors, !'leindienst contacted and r;et V7ith th.e President 
on April 15. Then, and at a neeting later that day with the 
President and T'tnry Petersen, they discussed ''agruder's 
testinonv and the findin<^s of the orosocutors. Th.e serious 



328 



^.V>>c 25 

'/15//3 ,lj-.volvo;-.c:-.t of the '.'IiUo "'oxn-.c. •.iln.ZS: ii i:"-.G '■■ai:oi\'>,ntc ;'.Cfiir, 
ro'iciruc t -vM ill sii^M-.ori'.ont iavr«l;.lf^aI:ions, loil 'CIf;in(ln.o::st l;o rcr-ovc 

l'.3ns(?lf fro:n I'.'.ie case. ?cl:o.r."?.n v.'os ;^lvcn rcsoopsibility for 

(■.Vc 1.riVnF.l:i.;v-;L ion . 

rvxo7.ity: A 

A/K773 uof'oon i-!n.ot:i-.^<;;s .'.ith ":l!'iv>.-:i .u^d •".;-.rlii--".:-m, t',:c 

Pro sic' one .i.^Vad ~;cAn to s.i.;;.i L .o i> (.'ci'ii; -lUiii^ .T.'^::i:i:j;.'? of 
r.-^r;if;iv-itlon. ncan refusod to do -o. ("■■.-.ii :'>: 1"17 -1^1'") 
rriority: A 

/;/U>/73 VV.e ?reside-.i!; called roterscn .ih' ^■.\ u! ncni 'ad cla.u-.ed he 

'.vid '-.Gcn p.rar.tcd lnr:imity; questioned Petcrnnn on t!ii^ subject 
.iv.d indxcntcd j\Q !;ad t;\f> T^fio.ii call on tape. (Peterson interviev;) 
Pxiority: A 

'■/I 7/73 The rrcsltV-nt :v-.\ov-^c':A ha !-..id l.t-.-^rn^d ou itrirch ?A of 

new factors In the inva;;tl;.,at.Lon, and that new intiuiri.es vyere 
underway. 

The President not aT~or:t coiirluu.in.y \-ii'i. h.rs 
top staff. 
Prioj-ity: A 

A/13/73 On April 18, 1973, Nixon learned that the Justice 

Departnent had interrogated (or vas planning to interro^-^ate) 
"unt nhout tha "isXdinf^ hroak--3n. At that tine, ';i:;on directed 
Peterson to Btich to t?ie '.'attrfi.'.to i,ivo;-.t L^^ation instoad of 
rational Security natters. 
(;iixon-;Pi'T "VlG/h ?) 
Priority: A 

4/10/73 On April 19, "ooro told "■T:;oa "'nan h.Td rjho"n ';oore a 

list of "liite House nei'sor.nel I'h.o pos;;iMy co'ild be In'.icted. 
?'oore specifically told Nixon Ehrlichj'an ni?ht he involved 
in the Kllsberg case. (Moore — transcript: 3?'t3-33A6) 
Priority: A 

4/19/73 to During this period, the President had his first neetlngs 

4/29/73 with Petersen and '..'ilson, and nade his decision to ask for the 

resignation of Dean, Haldenan, and "hrlichjnan. 

On the 25th, at the urging of JQeindionst , the 
President rescinded his previous orders and allowed Petersen 
to disclose the plumbers' brea!;-in. 

It was also during this period that "-alnbach testified to 
the Grand Jury. All these conversations are liV.ely to relate in 
whole or in part to such "atergate-related topics or events. 



V.i'za 26 



329 



Accori'lnj to r.ull, tho Tirst ;t(vi'~.;1: i:o r:::v icv; 

presidential tapes carae April. 9J., 197?. Ac ;:! .-it tihui 

J'.Atdpn.in oni-^rf;od froin Mit'on's ofC-'c.o :\\\d ' '■•' f c.>Iort !ic vovild 

lUn rcr.Gss to a rcvlrs o1; tho rocori'iT'.:; . (^ill. ■'■).C. 

]'n.>.vln:'.<5 S/S-.inO) 
i'rior.i t.y : A 



«/27/73 



Cray sttc-.r.-iLcd to ro.Tch "lijoa to tcinlnr Ms ra.sifjn.iti.oa; 
s;-io!;e ln':!toad to "l.t^by wVo '^aid !!0. T.oiilrt relay tlic 'lofisar-.e 
to ;!ixon, "alfl.onan and ':',rTli:' ■.! i. 
(rray -tran.'^cri.ot: 71'il-''^2) 



4/30/73 



6/4/73 



Italdenan, T:hrllch-ian, 'Hoan and ''7f nndionst rosif.n. 

TCii.l. .'bach and "c-l.'Orio d Is.iusr.cd "^ ■:.''. c n ■-,; nin ' s (■'■■•l,c-_.3 
rr!;;ard rr.f. a $100, TOO cor.tr Ibittf.on iro.-i '"orvrd ru.^'-.c.T. 
?rior;v.ty: A+ 

On Juno 4, 1973, for 10 to 13 hours, ondJng around 10:00 
p.p.., th.Q Pro.sic'ont llster.od to various "atergate tapos. If 
ha did not use oarphor.es, ve could '.ave a tape of fc-.portant 
'.".lite "ousa tapes. Even if ho did u-;?. i-'i-irpT.oaos, ho r^ay "o.ll 
have made relevant remarks, i.e., "^et ne the April 15 tape". 
Priority: A4 



7/9/73 to "aldonan s-'von tape of 9/15/72 nootin--;, 

7/11/73 sovoral others, (''alc'onan transcript: ('i5t'i3) 

Prioritv: A 



yl.l as 



9/29 to 
10/1/73 



On Septor'bor 29, 1973, "iss "oods be.t^an transcribiu.f; th.e 
Presidential tapes. .At th.is tir.Q, the President listened to 
part of one tape. 

October 1 was the day on '."hich '^iss "oods informed the 
President she had, in so^ie I'.anner, ca\ised a pari in the 
significant recordings, ("'one of these conversations should 
be on tape.) 



11/15/73 to This vas a period during v.'hich the T/hite House naintains 

11/17/73 the President, Buzhardt, et al, first realized that the June 20, 
1972 tape of Kaldeman's neeting with the President (irhich 
contained an IS-ninute gap) \;as, in fact, a subpoenaed tape. 
The President supposedly surcioned "Ir. "5ull and "'iss ''oods on 
I'ovenber 15 and questioned each re^ardin.';; their role in 
t'ne erasure (nor.e of these conversations should be on tape). 



IV. Relevant Pleadings of Selected Court 

Actions 



333 



eAM J. ERVIN. JR.. N.C.. CM.XiaMA?* 
HOWARD H. BAKER, Jf*.. TEt^N.. VICE CHAIRMAN 
MERMAN e. TAI.MAD JE. GA. COWARD J. CURNKY. FT^. 

DArtlCL K.'l^^ure. HAWAII LXIWEU. P. WCICKM, Jit, COMM. 

JOSEPH M. MOMT3TA. N. MEX. 

SAMUrU DASM 

OilCF COUNSCl. AMO staff DIRBCTOR 

FR£D O. TMOMPSON 

MINORITY COUNSEL 

RUriiS L. E0"-(IST04 

OFvrr couNSU. 



'^Cnifct) ^£aics ^enaU 

SELECT COMMITTEE ON 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(ruaSUANT TO 3. Res. M. tlO CONOMESa) 

Washington. D.C. ZOSIO 



May 7, 1973 



The Honorable Richard G. 
Attorney General 
Department of Justice 
Washington, D. C. 20530 



Kleindienst 



Dear Mr. Kleindienst: 

Enclosed please find Notice of Application for Order Conferring 
Immunity and Compelling Testimony of G. Gordon Liddy in conformance 
with Title 18, United States Code, Sections 6002(3) and 6005. 

The Senate Select Committee requests that you waive the ten 
day notice provided for in the Statute as well as the additional twenty 
day period which the Statute also permits you to request on receipt of 
Notice by the Select Committee. 



If you are agreeable to this request of the Select Committee, I 
would appreciate your sending a form of Waiver of the Notice under 
the Statute to me at the earliest possible date. 




Samuel Dash 
Chief Counsel 



End. 



cc: 

Henry E. Petersen 



334 



'"■'ffMTED STATES DISTRIC COUi:^ 
FOR THE DISTRICT OF COLUxMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL CAMPAIGN 
ACTIVITIES 



Misc. No. 70-73 



NOTICE OF APPLICATION FOR ORDER CONFERRING IMMUNITY 
AND COMPELLING TESTIMONY OF WITNESS 

TO: ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, 
Main Justice Building, 10th and Constitution Avenue, 
N.W., Washington, D.C. 20530 

PLEASE TAKE NOTICE that on the 17th day of May ; 



1973, at 10:00 a.m. or as soon thereafter as counsel may be 
heard, in the courtroom of the Honorable John J. Sirica, Chief 
Judge, United States District Court, District of Columbia, 
located in Courtroom No. 2, United states District Courthouse, 
Third and Constitution Avenue, N.W. , Washington, D.C., the 
undersigned, acting on behalf of the Select Committee on 
Presidential Campaign Activities of the United States Senate, 
will apply to the Court, pursuant to the provisions of 
Title 18, United States Code, Sections 6002(3) and 6005, 
for an order conferring immunity upon and compelling 
G. Gordon Liddy to testify and provide other information in 
an inquiry conducted by said Committee. 




■r:fr-'f/'ACO^^ 




iief Counsel 
Senate Select Committee on 
Presidential Campaign Activities 



Dated this 7th day of 
May , 1973 



335 



AaSisTwn- Arro»Hrr Gemckai. 

CtfiMircAi. Division 



■aSasljmgtfln 2U53a 



May 10, 1973 



Mr. Samuel Dash 

Chief Counsel 

Select Committee on Presidential 

Campaign Activities 
United States Senate 
Washington, D. C. 20510 

Dear Sam: 

This is in response to your letter of 
May 7/ 1973, with which you enclosed Notices of 
Application for Orders Conferring Immunity and 
Compelling Testimony of Witnesses G» Gordon Lidd y, 
Virgilio Gonzalez, Eugenio Martinez, Frank Sturgis 
and Bernard Barker in conformance with Title 18, 
U. S. Code, Sections 6002(3) and 6005." 

As you know, 28 C.F.R. 0.176 delegates to 
the Assistant Attorney General, Criminal Division, 
the authority vested in the Attorney General by 
Section 6005 of Title 18, U. S. Code. Pursuant to 
that delegation, I hereby waive the notice provision 
of 18 U.S.C. 6005(b)(3). 

Enclosed are formal waivers for each of 
the above named witnesses. 

Furthermore, I will not apply for the 
issuance of orders for deferral of the orders for 
which you are applying with respect to these 
individuals. 




/i. 
HENRY E. PETERSEN 

Assistant Attorney General 



336 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

United States Senate Select 
Committee on Presidential 
Campaign Activities 

For an Order Conferring Immunity 
and Compelling Testimony of Witness 



Misc. No, 



ACKNOWLEDGEMENT OF SERVICE AND WAIVER OF DELAY 

Now comes Henry E. Petersen, Assistant Attorney 
General in charge of the Criminal Division of the Department 
of Justice, appearing herein pursuant to the authority 
vested in him by 18 U.S.C. 6005, and 28 C.F.R. 0.176, and 
acknowledges service on May 7, 1973, of notice by the 
Select Committee on Presidential Campaign Activities of 
the United States Senate, of its intention to request an 
order or orders requiring G. Gordon Liddy to give testimony 
or provide other information at a proceeding before it; and 
said Henry E. Petersen hereby further waives the ten-day 
delay provided by 18 U.S.C. 6005(b) (3). 






Assistant Attorney General 



rated this lOth day 
of May, 1973. 



337 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OJ- COLUiVBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



Misc. No. 70-73 



APPLICATION FOR ORDER CONFERRING IMMUNITY UPON AND 
COMPELLING TESTIMONY AND PRODUCTION OF INFORMATION FROM 
G. GORDON LIDDY 



The Select Committee on Presidential Campaign Activities of the 
United States Senate, by its Counsel, hereby applies to this Court for an 
order conferring immunity upon and compelling G. GORDON LIDDY (the 
"Witness") to testify and provide other information before this Committee 
pursuant to the provisions of Title 18, United States Code, Sections 6002 
and 6005. In support of this application the Committee states: 

1. The Select Commiittee on Presidential Campaign Activities, 
pursuant to Senate Resolution 60, Section 1(a), 93rd Congress, 1 st 
Session, is inquiring into the extent, if any, that illegal, improper, or 
unethical activities were engaged in by any persons, acting individually or 
in combination with others, in the Presidential election of 1972, or any 
campaign, canvass, or other activity related to it. 

2. The Witrtess will be subpoenaed to appear before this Comnnittee 
during hearings that will be held in the near future. 

3. It is anticipated that the Witness will invoke his Constitutional 
privilege against self-incrimination and refuse to testify or provide other 
information relating to his activities that come within the scope of the 
investigatory authority established by Senate Resolution 60. 

4. This Application has been approved by an affirmative vote of all 
seven members of the Select Committee as attested to by the Certification 
of Samuel Dash, Chief Counsel, Senate Select Committee on Presidential 

34-966 O- 74 - pt. 1 - 23 



338 



Campaign Activities. The Certification is attached hereto as Exhibit 1. 

5. Notice of an intention to request this order was given to the 
Attorney General's designate of the United States as required by Title 13, 
U.S.C. ^s 6005(b)(3) on May 7, 1973, as attested to by the Certificate of 
Service attached hereto as Exliibit 2. The Attorney General's designate 
has acknowledged service of this notice and has waived his statutory right 

to a ten day waiting period between notification and request for the order 

s 
provided for in s 6005(b)(3), as indicated by the documents attached hereto 

as Exhibit 3. The Attorney General's designate has also stated that he will 



not seek a deferral of the order pursuant to s 6005(cV.--— See Exhibit 3 




espectfully submitted. 




Sa'muel Dash 

Chief Counsel 

Select Committee on 
Presidential Campaign 
Activities 



'/• 



May/, 1973 



James Hamilton 
Assistant Chief Counsel 



Ronald D. Rotunda 
Assistant Counsel 



339 



•4EMMAH «. r.^i MAO*-.!;. ' \. rurtAi--: 

^»««.<M. MO " .TA. N. MUX. 

r*MilFL D*>H 
CMia^ COUN^CU At<0 3TAf r 

rnco o. THOMPSON 

Ml^*oRlrY couNsci. 

nUFVO L. COMISTCN 

rgnnYiTMfi 



aiCmict) ^icde^ ^c'^a£c 

SELECT COMMITTEE OM 
PRESIDENTIAL CAMPAIGN ACTIVITISS 

(rUnSUAMT TO ». RfU. W, MO OO'^O'IIKB*) 

Washington. D.c 20510 



CERTIFICATION OF VOTE 



I, Samuel Dash, Chief Counsel of the Select 
Committee on Presidential Campaign Activities of the 
United States Senate, do hereby certify that the APPLICA- 
TION FOR ORDER CONFERRING IMMUNITY UPON AND 
COMPELLING TESTIMONY AND PRODUCTION OF IN-* 
FORMATION FROM the Witness filed pursuant to the 
provisions of Title 18, United States Code, Sections 6OOZ 
and 6005 was approved by a unanimous vote of the seven 
mem.ber6 of siiid Corrumttee on May^^^^ yi973. 




fM^^cc 



Samuel Dash 
Chief Counsel 




Ma y // . 1973 



EXHIBIT 1 



340 



■. i« I. I .•/IK, JII.. MC. til 1--1I 

llOMAM^> H. OAMCf*, JR., tf.nn . ViCK (.HAIRMAM 

M<^i«MAN e, talwadoc. c^. er>wABi> j. ciimNsr. rLA. 

nANiSi. K. INCUrr. HAWAII LOWfll-l. P, WftlCKM, JM.« 

JO«CFH M. MONTOfA. N. MCJC. 

ffAMuru da-;k 

OUU* COUNSei. AND CTAf ^ UiluKCTOM 
FRCO D. TMOMPOOK 
M(l^O«ITT COUN9CI. 

rvjrvs L. roMi-.TCH 



31C«xHc^ ^falci:; ^c^aic 

SEUECT COMMITTEE ON 

PRESIDENTIAL. CAMPAIGN ACTIVITIES 

(PIIM'IUAKT TO a. f)k.3. M, DO COf^On E&s) 

WA3HIN&TON, O.C. ZOSiO 



CERTIFICATE OF SERVICE 



I, Samuel Dash, do hereby certify that on the y^^ , 
day of May, 1973, I served a notice of our intention to seek an 
order conferring immunity upon and compelling testinaony and 
production of information from the Witnesses, upon the 
Honorable Richard Kleindienst, Attorney General of the United 
States and Henry Peterson, his designate, by having said notice 
hand delivered to him. at his office, located in the Main Justice 
Building, 10th ajid Constitution Avenue,.J^.W. , Washington, D,C, 
A copy of this notic© is attachedto this^Certificate of Ser^vice. 



\/ly< ^r^-«^ 




,Sanauel Dash 
Chief Counsel 



May // 1973 



EXHIBIT 2 



341 



UNITED STATES DI3TR1 / CO'uKi' 
FOR THE DISTRICT OF COLUMBIA 



In the 


Matter 


of the 


Application 


Of: 


UNITED 


STATES 


SENATE 


SELECT 




COMMITTEE ON . 


PRESIDENTIAL CAMPAIGN : 


ACTIVITIES 


• 




: 



Misc. No. 70-73 



NOTICE OF APPLICATION FOR ORDER CONFERRING IMMUNITY 
AND.. COMPELLING TESTIMONY OF WITNES.S 

TO: : ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, 
Main Justice Building, 10th and Constitution Avenue, 
N.W. , Washington, B.C. 20530 

PLEASE TAKE NOTICE that on the 17th day of May ; 



1973, at 10:00 a.m. or as soon thereafter as counsel may be 
heard, in the courtroom of the Honorable John J. Sirica, Chief 
Judge, United States District Court, District of Columbia, 
located in Courtroom No. 2, United States District Courthouse, 
Third and Constitution Avenue, N.W., Washington, D.C.,the 
undersigned, acting on behalf of the Select Committee on 
Presidential Campaign Activities of the United States Senate, 
will apply to the Court, pursuant to the provisions of 
Title 18, United States Code, Sections 6002(3) and 6005, 
for an order conferring immunity upon and compelling 
G. Gordon Liddy to testify and provide other information in 
an inquiry conducted by said Committee. 




lef Counsel ' 




Senate Select Committee on 
Presidential Campaign Activities 



Dated this 7th day of 
May , 1973 



342 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN 'ACTIVITIES 



Misc. No. 70-73 



MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 
OF APPLICATION FOR ORDER CONFERRING IMMUNITY UPON 
AND COMPELLING TESTIMONY AND PRODUCTION OF IN- 
FORMATION FROM BERNARD BARKER, EUGENIO MARTINEZ, 
FRANK STURGIS, VIRGILIO GONZALES, AND G. GORDON 
LIDDY . 

The Select Comnaittee on Presidential Campaign Activities of 

the United States Senate has applied to this Court for an Order conferring 

immunity upon and compelling Bernard Barker, Eugenio Martinez, Frank 

Sturgis, Virgilio Gonzales and G. Gordon Liddjr to testify and provide 

other information before the Committee pursuant to the provisions of Title 

18, United States Code, Sections 6002 and 6005. 

These sections, in pertinent part, provide: 

"Section 600Z. Immunity generally. 

"Whenever a Avitness refuses, on the basis of his 
privilege against self-incrimination to testify or . 
provide other information in a proceeding before 
or ancillary to- 
ut ♦ ♦ 

"(3) either House of Congress, a joint committee of the two 
Houses, or a committee or a subcomm.ittee of either House 
and the person presiding over the proceeding communicates 
to the witness an order issued under this part, the witness 
may not refuse to comply with the order on the basis of his 
privilege against self-incrimination; but no testimony or other 
information compelled under the order (or any information 
directly or indirectly derived from such testimony or other 
information) may be used against the witness in any crim.inal 
case, except a prosecution for perjury, giving a false state- 
ment, or otherwise failing to connply with the order. " 



343 



"Section 6005. Congressional proceedings, 
"(a) In the case of any individual who has been or may- 
be called to testify or provide other information at any 
proceedings before either House of Congress, or any 
committee, or any subcommittee of either House, or any 
joint committee of the two Houses, a United States district 
court shall issue, in accordance with subsection 
(b) of this section, upon the request of a duly 

authorized representative of the House of Congress or the 
Committee concerned, an order requiring such individual' 
to give testimony or provide other informiation which he 
refuses to give or provide on the basis of his privilege 
against self-lncrinnination, such order to become effective 
as provided in section 6002 of this part. " 

• "(b) Before issuing an order under subsection (a) of this 

• section, a United States district court shall find that -- 

* * * 

"(2) in the case of a proceeding before a comitnittee or 
a subcomm.ittee of either House of Congress or a joint 
committee of both Houses, the request for such an order 
has been approved by an affirnaative vote of two-thirds of 
the mennbers of the full committee; and 

"(3) ten days or nnore prior to the day on w^hich the 
request for such an order was made, the Attorney General 
•was served with notice of an intention to request the order. 

"(c) Upon application of the Attorney General, the United 
States district court shall defer the issuance of any order 
under subsection (a) of this section for such period, not 
longer than twenty days from the date of the request for 
such order, as the Attorney General may specify. " 

As the exhibits attached to the present Application indicate, the 

procedures required by Section 6005 have been met. All seven nnembers 

of the Select Committee have approved this Application. Moreover, the 

Select Comm.ittee, through its Counsel, has notified the Attorney General's 

designate of its intention to request the instant order. The Attorney , 

General's designate has acknowledged notice and has waived his right to ten 

days delay bet"ween notice and request under Section 6005(b)(3), as well as 

his right to further deferral of the order pursuant to Section 6005(c). 



344 

Page Three 

Because the requirements of Section 6005 have been complied 
with, the attached order should be entered. 

Respectfully submitted, 



Samuel Dash 

Chief Counsel 
Select Committee on 
Presidential Campaign 
Activities 



c4^.^.- V^,:/^ L R di?) 



'James Hamiilton 
Assistant Chief Counsel 



May^l973 f^ f-^^^-^T 

Ronald. D. Rotiixida 
Assistant Counsel 



i 



345 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



Misc. No. 70-73 



ORDER CONFERRING IMMUNITY UPON AND COMPELLING 
TESTIMONY AND PRODUCTION OF INFORMATION FROM 
G. GORDON LIDDY. 

The United States Senate Select Committee on Presidential 
Cannpaign Activities, having made written application for an order con- 
ferring ioimunity upon G, Gordon Liddy and compelling him to testify and 
provide other information before it, pursuant to Title 18, United States 
Code, Sections 6002 and 6005, and on Court finding that all procedures 
specified by § 6005 have been duly followed, it is hereby this day of 

May, 1973. 

ORDERED that the said Witness in accordance with the 
provisions ofTitle 18, United States Code, section 6002 and 6005, shall not 
be excused from testifying or providing other information before the Select 
Committee on Presidential Campaign Activities on the ground that the 
testinnony or other information sought may tend to incrinninate him.. 

AND IT IS FURTHER ORDERED that the said Witness appear 
when subpoenaed by said Comnnittee and testify and provide such other 
information that is sought with respect to the naatters under inquiry by 
said Committee. 

AND IT IS FURTHER ORDERED that no testimony or other in- 
formation compelled under this ORDER (or for any other informLation directly 
or indirectly derived from such testimony or other information) may be used 



346 



Paae 2 



against the Witness in any criminal case, except a prosecution for perjury, 
givln;j a false statement, or otherwise failing to comply v/ith this ORDER, 



United States District Judge 



347 



serve J a cojy of ti;o awwi^ilicd cocurxr-ta ca tlio ^or-orcjie Sicliir;! C-. lIlcLr.;llcr.c-j 
Atto.tiCiy Cciisrai o* tl:j c:iitctl Statca cud lici;:.'^ 2. Fctcrscii, bij c:ccic"--"C-, 'cy 
bavlcs caid pcpors hc^ dari\-cixd to his OAi-ice, Iccatccl ia tl^o lU:!;: Cucliic:? 



(7^>v»^/3.^y^;3^:^^ 



348 



CERTIFICATE OF SERVICE 
I, the undersigned, do hereby certify that on the Uth day of M.x T'X T*°^ 
1973, I served a copy of the attached documents on Thomas A. 
Kennelly, Esq., attorney for G. Gordon Liddy, 819 H Street, N. W , 
Washington, D. C. 20006, by depositing same in the U. S. Post 
Office, postage prepaid. 



\^-^,.^^.xD - '^S^S^D^ 



349 



^niteb ^tateg Birtritt Couct '■■^y^^'m 



For The District oi C<:>lL:rf-.bla^^^-''-^S £ i^.^^^^y 



Okrk 



IN RE: SENATE SELECT COMITTEE ON ) 

) MISC. NO. 70-73 
PRESIDENTIAL CAl-iPAIGN ACTIVITIES ) 

(George Gordon Liddy) 



I 



TRANSCRiPT OF PROCEEDSrA^GS 

ye^fiesday, May 16, 1973 
(Tram unity) 



COPY FOR ^^^^^.-//.W,;.:^^ 

PAGES: 1..14 



NICHOLAS SOkAL 
OFFICIAL REPORTIrTR 
4300- F u. S. COURTHOUSE 
WASH!\'GTON. D. C. 20C01 



TELE: 426-7454 



^ 350 

UNITED STATES DISTBICT COl'F.T 
FOR THE DISTRICT OF COUHhlh 



IN RE: SENATE SELECT Ca^-ilTTEE ON ) 

) MISC. NO. 70-73 
FRESIDExNTIAL C/MPAIGN ACTIVITIES ) 



Wednesday, May 16, 1973 

The above-entitled cause came on for hearing on 

application by the United States Senate Select Committee on 

Presidential Carapaign Activities for a Grant of Imraunity In Re 

George Gordon Liddy, at 10:00 o'clock a.m., before THE HONORABLE 

CHIEF JUDGE JOCT J. SIRICA. 

APPEARANCES: 

On Behalf of the Senate Select Committee: 

ROKATJD ROTUNDA, Esq. 
DAVID DORSEN, Esq. 

On Behalf of George Gordon Liddy: 

FETER MAROULIS, Esq. 



351 



(Mr. liddy is present in court.) 

TH5 COUllT: All right. 

t-TR.. ROTUin)A: May it pleese the Court, my name is 
Ronald D. Rotunda, Assistant Counsel to the United States 
Senate Select Carraittee oi. Presidential Campaign Activities. 

On behalf of the Canmittee we are applying today for 
an order conferring litmunity and ccmpelling testimony from Mr. 
G. Gordon Liddy. Let the record reflect I am handing to the 
clerk the application. 

The application indicates that the witness will be 
subpoanacd by this Cotnraittee during hearings that will be held 
in the near future. The application also indicates by unanimouc 
vote cf the Senators of that Cocomittee voted to apply for inimuuity 
for Mr. Liddy on May 2nd, 1973. The statutory notice to the 
AtUorv.ey Gsneral designate was givsnon May 7, 1973, and on 
May 10 Mr. Petersen formally waived his right to a ten day delay 
and also waived his right to request a further twenty-day delay. 
Ue ser'^ed papers on Mr. Liddy' s attorney. 

THE COITIT: Mr. Maroulis. 

MR. HAROULIS: Good morning. Your Hinor. 

On behalf of Mr. Liddy I ari opposing Llvls application 
ar<^ tht opposition is based upon tire Fiftli /^-icndiaent to the 
United Stater. Cc<nstitutl.<n. 

Ihe ?ifth /caencbnent portions wuich iJt t'ely <"''• src t.jo: 

The i:izst part; is: 



352 



3 

"No person shall be held to answer for a cspitol or 
othervjise infar.ioas crine unleas on a presentment or indict- 
, ment of a grand jury." 

Ue submit to Your Honor that there is massive historical 
precedent that precludes requiring ray client to appear before 
any body absent an indictment or presentment of a grand jury. 
And I intend to address myself to the historical precedents 
hereafter. 

The second portion of the Fifth Amendriient that we 
rely on is : 

"Nor shall be canpelled in any criminal case to be 
a witness against himself, nor be deprived of life, liberty, 
or property without due process of law." 

Resarding the decisions of this circuit the Court's 
attention is respectfully called to Frank vs United States , 
347 F.2 486; Jones vs United States , 342 F.2. S63; and Powell v s 
United States 226 F.2 269. 

As to the historical argument I would like to, with 
the permissicm of the Court, take a few minutes and ^o through 
the historical argument that I have been able thus far to puu 
together to bring before the Court. 

Wlien the Constitution-raakers drew up the Fifch 
Amendment, thoy vere not articulating a pn.vilej^e beptcwad on 
the individual by tho state; they vjcrs rather stating a X-^riii 
of the indivLtiti.r;l which was founded in a thousand years oi: ccrmcn 
law history, nnd vhicii would tl'.cr.cuJiorth be fcr:.ially prct.-icL-id 



353 



4 

and guaranteed in this nation by the Constitution. 

The first clause of the Fifth Anendment states: 
"No person shall be held to answer for a capitol, or 
otherwise infamous crime, unless on a presentment or ia- 
dictment of a Grand Jury..." 

That clause was seated on the very basis of our legal 
system which is accusatorial rather than inquisitorial; that is, 
no man Is bound to accuse hljnself . 

Initially, Ensland followed the ancient Germanic 
adversary procedure for determining innocense or guilt. Upon 
accusation proof of innocense could be established three ways: 

(1) by ordeal, wherein the accused would be miraculously 
untouched if innocent; 

(2) by ccnipurgation, wherein friends or kindred of the 
accused and the accused himself would swear to his innocense; 

(3) or trial by battle, wherein the accused would be 
victorious if innocent. 

These irrational methods came to be replaced in the 
800*8 arid thereafter by an accusational system on the part of 
the state, and an inquisitorial systen on the part of the church. 

From the 13th century to the end of the 17th century 
there was continual opposition to the inquisitional method. It 
was a struggle between coumon Isxi and Rar.ish procedure, the 
CCTimon Iciv bfeiug basicrlly accusitorlal and the Rr^san law beirg 
inquisitorial. 



34-966 O - 74 - pt. 1 - 24 



354 



la (.he l?...h century Henry II extended the old Franklsh 
system of inq;n.ry by neighbors, vfhich vjas the begining of our 
grand and petit juries. At this time the accused had the Germanic 
right to the oath of purgation, or the oath of innocense, wheicby 
he showed his innocense with coapurgators. In 1215 King John 
signed the Ma^na Charta, and Articles 38 and 39 have particular 
Interest in this vein: 

Article 3S says: 

"No bailiff from henceforth shall put any man to 
his law upon his own bare saying, without credible 
witnesses to prove it." 
Article 39 of the Magna Charta says: 

"No freeman shall be taken or imprisoned, or disseised, 
or outlawed, or banished, or any ways destroyed, 
nor will we pass upon him, nor will we send upon 
hid, unlsss by the lawful judgement of his peers, 
or by the law of the land." 
It would appear that these two articles articulate 
in writing for the first time the requirement of presentment 
which appears in almost every statute pertaining to legal pro- 
codinre during the neJit three centuries and vjhlch finally evolves 
into the first clause of the Fifth Amendment. That argrjnent 
vac stated by Circuit. Justice 'JiGdcci, speaking for the majority 
in DeLuna vs United States 308 F.2d 140. He recognize J chcre 
that the- gerr; of the Fifth m^ndnlent is related to /rtlcic 28 
of the Magna. Cherta. 



355 



6 

VJhile these changes •-eere taking place In the civil law, 
there were also innovations in the canon law. From 1198 to 1216 
Innocent 11.1 instituted the inquisitional systeoi through a series 
of decretals outlining the ex officio oath procedure in which 
the church official had the power by virtue of his office to re- 
quire a person to answer truthfully upon his oath all questions 
put to him. The official was not to proceed against a person 
without reason, either common report or notorious suspicion. 
Cardinal Otto introduced this procedure into England In a consti- 
tution resulting from the Pan-Anglican Council of London in 1236. 

The civil courts began to abandon the old method of 
oath by canpurgation or oath of innocense in favor of the more 
efficient method of the canon oath ex officio. At the same ttn\Q 
the safeguards that Innocent intended were ignored in both the 
canon and civil courts resulting in widespread opposition to the 
procedure. Throughout the following 500 years of struggle 
against the ex officio oath, the grounds were essentially the 
sane: people were opposed to Judgement by an official rather 
than by their own grand jury of neighbors and peers. They weie 
opposed to the interrogatory fishing expeditions which resulted 
when parties were questioned without proper presentment ^ that 
being contrary to the Ha^np. Charta and contrary to the carimon 
law. They were opposed to a procedure whi.ch required a man 
to accuse himself, his ffroiiy or his friends. 

During the l^^th century there were repeated petition:; 
to tha King to proliibit i:he i!se of the oath. And cc rr. ra;>!jlt; 



356 



Fklwnrd III issued several important statutes, one of them re- 
lating to civil courts. 42 Edward III, Chapter 3 states: 

"No man shall be put to answer without presentment 
before justices, or matter of record, or by due 
process and writ original, according to the old 
law of the land. " 
Edward Ill's Dc Articuli Cleri incorporates a previous 
prohibition of Henry III, limiting the use of the oath by 
ecclesiastical courts to matrimonial and testamentary causes. 
It reads: 

"And they suffer not that any Laynen within their 
Bailiwick, come together in any places to make 
such recognitions by their Oaths, except in Causes 
of Matrimony and Testamentary," 
In 1382 the prelates had an alleged Act of Parliardent 
put on the statute books which was supposedly enacted during 
the second session of parliament in the 5th year of the reign 
of Richard III. The act (Statutes of the Realm 25-26) gave the 
church the power it wanted against heretics — enforced imprison- 
ment of suspects until they confessed. But at their next session. 
Ccmrflons said they had never assented t o the enactment and asked 
the King to declare the act void, vhich he did. 

De Articulus Cirri was made ineffectual by Henry IV 
who grvc the cnnon courts the right to deters Inc hcrccy rncccrdir.^, 
to the canonical decrees. 



357 



8 

In 1487 the statute which sanctioned the Star Chamber, 
that is 3 Henry VII, 1, expressly gave it the power to examine 
the accused on oath in criminal cases with no mention of the 
restrictions named in the ecclesiastical rulings such as necessary 
presentment. This was the first formal statement acknowledging 
the power to use the ex officio oath in civil cases. And by 
that I mean noD.clerical cases. Although as I have mentioned 
before it is not the first use of it. The authority behind this 
power was purely statutory and not in keeping with the ccosnon 
law. The Star Chamber survived almost 200 years under this 
statute. 

To abait protest against the ex officio oath Henry VIH 
enacted a statute providing that: 

"Every person a nd persons being presented or 
indicted of heresy or duly accused or detected 
thereof by two lawful witnesses at the least to 
any Ordinaries of this Realm having pover to 
examine heresies, shall and may after every such 
accusation or presentment and none otherwise nor 
by £iny other means be cited, convented, arrested, 
or taken., ," 
The grievance relieved by this statute is clearly against the 
ex officio o.&th and the negligence on the part of the courts In 
not requtri.ng due presentment. 

Edvjtird VI took ax^ay the cl-urch's Jurisdiction ever 
heresy. Jtary -fipenled the statutes of Hfu-Tv VIII *.nd revived 



358 



9 

those of Henry IV and the repudiated statute of Richard II. And 
in the first year of the reign of Elizabeth, she consolidated 
all power, ecclesiastical and civil, under the auspices of the 
crown, thus giving her complete jurisdiction in all matters. 
She had the Star Chamber with its carte blanche statutory pcvo: s 
to Investigate and decide civil matters, and she had the Court 
of High CoDJRilssion with equally undefined power in ecclesiastical 
cases . \ 

The opposition this time was led by the Puritans. The 
basis of their dissent was that the inquisitional technique of 
forcing a maa to accuse himself or inform on his family and friends 
on oath was contrary to the ccoanon law tradition and to the 
dignity of man. The Puritans had good legal counsel and the 
sympathy of Conmons throughout the battle. During this time 
the ccznmon-lav courts nullified punishments imposed by the High 
Cocmlsslon for refusing to take the oath. 

During this time the courts, speaking for the Queen, 
made many erroneous historical argunents refuting the cccurate 
historical arganents made by the Puritans. It is soaetimes 
difficult to separate fact from half-truth snd fiction during 
this period. But as the Puritan opposition grew, cases arose 
In which men flatly refused to take the oath; theli.* atatfiaents 
and the decisions in those cases are clear find irrefutable. 

In 1584 an alliance was formeti bet^jsen the Puritans 
and Cttnraons and there was public support in the £onn of jR'Jt>2rs 
to the Queeu for the Puritan cause signed by maay pvoiiinept 



359 



10 

meabers of Lords. Also in this year Conniorto drew up s series 
of complaints, one of which was: 

"...to forbear.. .examinations ex officio raero of 
godly and learned preachers not detected, that is, 
accused unto them... and only to deal with them for 
such matters as shall be detected In thsm..." 
The legal issue centered on a matter of procedure. The Star 
Chamber and High Coramisslon were requiring men to answer on 
oath to crimes for which there was no presentment, and sometimes 
to answer on oath to questions designed to ferct out a chargeable 
crime. 

In 1590 the preacher Udall, before the High Conmlssion 
refused to answer on the grounds that there was no indictment 
against him; however, a few months later, before a common law 
jury with proper presentment, he cannot make that claim. 
Udall 's argunent against answering on oath was a new one in the 
Puritan struggle; it was an appeal to freedom of conscience 
and claimed that the oath was contrary to comraorv-law tradition. 
This reliance on the history of the common-law tradition was the 
turning point in the Puritan struggle cgainst royal prero3ati%7«». 

The same circumstances held in the Jesuit Garnet's 
trial of 1606: 

"V/hen one is asked a question before a magistrate, 
he is not bound to answer 1>ofore suuft witnesses 
be produced against him," 
Incc v&s the proposition. 



360 



11 

As Wigmore notes this is net a flat refiisal to answer, 
only an acknovled^eaent of the right to proper presentment. 
John Lilburno says: "If I l^ad been proceeded against by a bill, 
I would have answered." In his appeal to the House of Lords in 
1646, Lilburns's lawyers argued: 

"The ground Tjhereof being that Mr. Lilbum refused 
to take an oath to answer all such questions as 
should be demanded of him, it being contrary to 
the laws of God, nature, and the k}.ngdcm, for any 
man to be his own accuser." 
The House of Lords vacated his sentence, saying it was illegal 
and most unjust, against the liberty of the subject and the law 
of the land and Magna Charta. 

It should be noted that the Star Chamber and High 
Cocraission had been abolished i n 1641; so that the ex officio 
oath was prohibited. At the time they were abolished England 
was in a state of upheaval, Ccmmons was in open revolt, Charles 
had to give up his royal prerogatave. Thus ended in England 
the inquisitional practice of forcing a man to accuse hiinself. 

Thereafter it began to be accepted that no man is bound 
to incriminate hiraself on any charge, no matter how instituted, 
in any court. The jurisdictional distinction of proper presentment 
became unncesssary. Acceptance csme first ?,n the criminal tri.al3 
and afterwards in civil cases, .j^y the end of Charles II* s reigns 
the privilege to xov^ata silent v;a3 aittcaded to ordinary witnesses, 
not just to the accused. Howevtr, this was in reality not luuch 



361 



12 
uore than a rule that jud3es \;ould recognize only on demand , 
"The old hcbit of qucstionins and crguing the accused died hard 
— did not d5.saf'pca)r, indeed, until the 1700 's had begun." 

In light of tho earlier grievances and their resulting 
statutes, it is clear th-t Wi^riore's appraisal of the development 
of the right to silence as an. outgrowth of jurisdictional jealoiisy 
between church and the state in the 16th and 17th centuries is 
not an cdequcte explanatioa The accusatorial system goes as far 
back as the Germanic adversary procedure which began to change 
around 800 towards a more rational judicial process. The oath 
of the ancient conraon law was an oath of innccense, not an in- 
quisitional oath, V<'ith the introduction of t he Rcxaish inquisi- 
tional procedure, the English people fought against t he pCTfler 
that system affords the state as being contrary to the cannon 
law and the dignity and autonoaiy of the individual. 

To that sentence, "that the power that systera affords 
the state as being contrary to the carunoa lavj and the dignity 
and autonomy of the individual^" I add the first clause of the 
Fifth Anendii>C!nt and respectfully ask the Court not to grant the 
order requested. 

THS COURT; I take it froa your argument, and I have 
not interrupted you, I think you talked souicthing like 20 minutes 
or more, Mr, Liddy has ell of ths rights and the Select ConmittftL^ 
has no rights. Is that the interpretation you place on the law 
in this case? 

I'iR, MAROULIS: I pay this, chat the Fifth /.aeiidA(.:nt 



362 



13 

says that he need not ansv?er, he need not be held to answer for 
a capltol, or othervjise Infamous crine, unless on a presentment 
or indictment of a Grand Jury. 

THE COURT: As I renicsnber correctly Hr. Liddy had one 
opportunity, he was s'^^rited iinmunity soractitne ago when he went 
before the grs.nd jury and certain questions were propounded to 
him, I believe, and he still refused to answer before the grand 
jury, is that correct? 

MR. MAROIJLIS: Yes, sir. 

THE COURT: ^-That is the status of that case before 
our Court of Appeals today? 

MR. HAROUI.IS: The appeal, I belie^;e, is being docketed 
on the 21st, 

THS COURT: How many days ago did that happen? I have 
forgotten ncr.} when he appeared before the grand jury. 

MR. MAROULIS: I can only estimate. Judge. It has to 
be In excess of a month ago, 

THE COURT: Here he is asked to ccne before a duly consti- 
tuted Coranittce of the Senate which is conducting an investigation 
and one of the principal purposes of that Investigation as I 
understand it is to find out what occurred in this situation, 
this matter, and if urjcessfiry rccc.anisnd r<an.3dial Irsiolation to 
the Congress to corrtict aiv' evil nhat th.^y mip.ht uncover. Thst 
is x)isually t?ie purpo.^e of cv*:<ry iuveatijcstion of that Corwittf-^.. 

Yoij say Conjresp doesn't Kiave th« right no do l-bat «;id 
he has the right to .Claai.\t hiaoclf u' ths fv;ce of a Inwfuily 



363 



14 

issuad subpoena aftG!^ he is grantcl imro'onity, is <:hat your argu- 
ment to the Court? 

MR, i'JiROULIS: My argun.ent is that he has that right 
under the Fiftih Ancvctir.snt , 

THE COURT: Well, I disagree with you. 

i 
i 

I will grant the request of the goverrment. Do you 
have any objection to the papers filed as to form in this case? 
I take it you have soan the papers? 

MR. IIAROULIS: Yes» Your Honor, I liave been presented 
with a copy of the papers, I havo no objection as to the fcrc 
of the papers. 

THE COURT: All right, 

* * * (10:35 a.m.) 



CERTIFICAT E 

It is certified the foregoing is the official 
transcript of proceedings indicated . 

UIUHOLAS fiOlC/iO. 
Official Reporter 



364 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the MaiLcr of the Applicitioa o[ 

UNITED STATES SENATE SEI-ECT 
COMMITTEE ON PRESIDENTIAL 
CAjVIPAIGN ACTIVITIES 



Misc. No. 70-73 



' o 



^^^,, -"■ 



ORDER CONFERRING IMMUNITY UPON AND COMPELLING ' C/., 

TESTIMONY AND PRODUCTION OF INFORMiATION FROM 
G. GORDON LIDDY. ^______ 

The United States Senate Select Committee on Presidential 
Campaign Activities, having made written application for an order con- 
ferring immunity upon G, Gordon Liddy and coinpelling him to testify and 
provide other information before it, pursuant to Title 18, United States 

Code, Sections 6002 and 6005, and on Court finding that all procedures 

•; I yil 
specified by § 6005 have been duly followed, it is hereby this . /" day of 

May, 1973. 

ORDERED that the said Witness in accordance with the - 

provisions ofTitle 18, United States Code, section 6002 and 6005, shall not 
be excused from testifying or providing other information before the Select 
Committee on Presidential Campaign Activities on the ground that the 
testimony or other information sought m,ay tend to incriminate him. 

AND IT IS FURTHER ORDERED that the said Witness appear 
when subpoenaed by said Conannittee and testify and provide such other 
information that is sought with respect to the matters under inquiry by 
said Committee. 

AND IT IS FURTHER ORDERED that no testimony or other in- 
formation compelled unc'er this ORDER {or for any oLlier information directly 
or indirectly derived from sucli testimony or other iiiformatio;i) may be used 



365 



I^agc Z 



agaiiiHt the Witness in any criniinal case, except a prosecution for ji'irjury, 
givin<; a false statomc-nt, or otherwisi.i failing to comply with this OlvDF.R, 



/ 



i 



'J^iIilLLl -^^ 



.l/'J-^C<cc 



/United States District Judsc 
( I 



366 



I 



'.'>%■' Tfv 



UNITED STATES OF AMERICA 



JOHN DOE, et al. 



'^-■^ 'wis?- 11 ^BVo 
UNITED STATES DISTRICT COURT ^■'^' ' ' 

FOR THE DISTRICT OF COLUMBIA — . .— 









MOTION TO OBTAIN DOCUMENTS BY THE SELECT SENATE 
COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES 



Comes now the Select Senate Committee on Presidential Campaign 
Activities (hereinafter referred to as "the Committee"), a regularly 
constituted committee of the Senate of the United States of America, by- 
its Chief Couiisel, Sarr.uel Dash, to move to obtain certain docuiTients 
hereinafter described that may be under the control and custody of this 
Honorable Court: 

1, On or about May 4, 1973, John Wesley Dean III (hereinafter 
"Dean") by his attorneys, Shaffer, McKeever & Fitzpatrick, in a Motion 
to Lodge Documents with the Court (hereinafter "Motion to Lodge Docu- 
•/nents"), moved that this Honorable Court accept custody and control of 
certain documents which Dean had deposited in a safe deposit box located 
in the Alexandria National Bank (hereinafter "the Bank"). 

2. In their Motion to Lodge Documents, Dean's attorneys indicated 
(a) that Pean had had in his possession certain documents identified as a 
"document containing forty-three (43) numibered pages together with eight 
(8) supplementary documents, plastic-bound in a blue cover" (Motion to 
Lodge Documents at Paragraph 8); (b) that the documents were classified 
within the meaning of Title 18, United States Code, Section 798; (c) that 
Dean was sent a communication by Senate Majority Leader Mike 



367 



Mansfield in the nature of a directive to preserve records or documents that 
might have a bearing on the Conimittee's investigation; (d) that Dean has 
reason to believe that the documents relate to the subject matter of the 
Committee's investigation; (e) that Dean, anticipating the possible illegal 
destruction or removal of the documents, secured t'nen-i in a safe deposit box 
at the Bank; and (f) that Dean delivered the keys to that safe deposit box. 
No. 592, to this Honorable Court. 

3. The Committee has reason to believe that the documents stored 
in the Bank's safe deposit box No. 592 relate to "illegal, improper, or 
unethical activities" in relation to the 1972 presidential campaign that the 
Committee is empowered to investigate. (Appended hereto as Exhibit A is 
S. Res. 60, 93rd Cong., 1st Sess. (1973),, authorizing the Committee.) 

4. Evidence has been developed and received by the Connmiittee to 

the effect that on prior occasions persons then or previously connected with 
the White House staff illegally and improperly removed and destroyed 
records and documents relating to the mandate of the Committee. 

5. The Committee appears to fall within the following subsection (c) 

of Title 18, United States Code Section 798, which creates an exception to 

the otherwise restricted access to designated classified material: 

"Nothing in this section shall prohibit the furnishing upon 
lawful demand of information to any regularly constituted 
committee of the Senate or House of Representatives of 
the United States of America, or joint comimittee thereof." 

6. Alternatively, and in the event that this Honorable Court does not 
have control or custody or relinquishes control or custody of the 
documents requested her ein, subpoenas for the production of these documents 
have been served on Dean, the Bank, and the Executive Office of the 
President. 



368 



3 - 



WHEREFORE, the premises considered the Committee prays this 
Honorable Court to pass an. Order: 

1. Directing the Clerk of this Honorable Court to deliver to a duly- 
authorized representative of the Select Senate Conru-nittee the keys to Safe 
Deposit Box No. 592 at the Alexandria National Bank to gain 

access to and to copy the documents described herein. • 

2. For such other and further relief as this Honorable Court shall 
deem appropriate. 




Chief Counsel 

SELECT SENATE COMMITTEE 
ON PRESIDENTIAL CAMPAIGN 
ACTIVITIES 




^iM 



i)'^^'< 



David M, Dorsen 
Assistant Chief Counsel 



369 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



UNITED STATES OF AMERICA 



V - 



JOHN DOE, et. al. 



Criminal Case No. 1827-72 



MEMORANDUM OF POINTS AND AUTHORITIES IN 
SUPPORT OF THE SELECT SENATE COMMITTEE 
ON PRESIDENTIAL CAMPAIGN ACTIVITIES MOTION 
TO OBTAIN DOCUMENTS ^ 

1. The authority of Congress to'connpel production of documents 
or records is recognized as a necessary correlative to its inherent power 
to conduct investigations -- so long as these investigations are in further- 
ance of a legitimate legislative function. McGra.in v. Dau^herty^ 273 U.S. 
135 C1927)-. • Watkins'v . United States, 354 U. S,- 178 (1957). Congress's 
authority to compel the production of documents or records is denoted in 
Title 2, United States Code, Section 192 ,' 

2. By Joint Resolution of the Senate, the Select Senate Committee 
on Presidential Campaign Activities is ennpo'wered to investigate "illegal, 
innproper, or unethical activities" in connection with the 1972 presidential 
election, and to determine the "necessity and desirability" of new legis- 
lation to "safeguard the electoral process, " S. Res. 60, 93rd Congress, 

1st Session (1973) ((appended hereto as Elxhibit A). The Connmittee has 
reason to believe that the docunnente that it seeks to obtain from this Court 
relate to "illegal, improper, or unethical" activities in connection with the 
1972 presidential campaign. 

3. John Wesley Dean III in his Motion to Lodge Documents with 
the Court stated that these documents were classified under Title 18, United 
States Code, Section 798(a) i(3). The protection afforded these docunnents 



34-966 O - 74 - pt. 1 - 25 



370 



Page 2 

has an exception in the case of a " . . . lawful demand, of information to 
any regularly constituted committee of the Senate or House of Represent- 
atives . . . "U.S.C. § 798(c) (1970).* 

4. The Judiciary may not act to prevent the production of 
documents or records ordered by Congress pursuant to its investigatory 
powers until the party subject to the Congress's order has refused to 
comply with the order and some event "such as arrest, indictment, or 
conviction brings an actual controversy into the sphere of judicial authority. " 
Pauling V. Eastland , 288 F. 2d 126, 129 (D. C. Cir. I960), cert , denied , 
364, U.S. 900 (I960). The court in this case refused to issue a declara- 
tory judgment as to the legality of a Senate order for the production of 
certain docunnents, stating that 

"The courts cannot interfere upon the 
petition of a person potentially liable 
to some such event. It is clear to me 
the doctrine of the separation of powers 
prevails here. " 

288 F. 2d at 129. In the instant case. Dean's "lodging of the documents with 

the Court" is, in effect, asking the Court for an advisory opinion or 

declaratory judgnnent as to the status of the docunnents that are the subject 

of this Motion. Thus, under the authority of this Circuit's ruling in Pauling v. 

Eastland, this Court would seem to be without authority to withhold fronn the 

Select Senate Connnnittee the docunnents that it heriein seeks to obtain. 



IN CONCLUSION, and in view of the authorities hereinbefore cited, the 
Select Senate Connnnittee on Presidential Campaign Activities should obtain 



the documents as set forth in its MOTION TO OBTAIN DOCUMENTS 




^/^:\Y^'^.^^^/ xV-^\ 




Samuel Dash, Chief Counsel 

Senate Select Committee on Presidential 

Carfipaign ActivitlTes 



David M. Dorsen. Asst. Chief Counsel 
* Cases or authorities primarily relied upon are marked by asterisks. 



371 



_ C ERTIF ICATE OF SE RVICE _ 

I HEREBY CERTIFY that copies of the foregoing MOTION 
TO OBTAIN DOCUMENTS and the supporting MEMORANDUM OF 
POINTS AND AUTHORITIES were delivered this day 

of May, 1973, to Charles Norman Shaffer, 342 Hungerford 
Court, Rockville, Maryland, 20850, Counsel for John Wesley 
Dean, III: Earl Silbert, Assistant United States Attorney, United 
States Courthouse, Washington, D, C„ 20001; Leonard Garnaent, 
Counsel to the President, Executive Office of the President, 
The White House, 1600 Pennsylvania Avenue, N, W, Washington, 
D, C, 20500; and Mr. E, Guy Ridgely, President, Alexandria 
National Bank, 330 N.Washington Avenue, Alexandria, Virginia 
22313. 





0^^^ 



David M. Dorsen 
Assistant Chief Counsel 



372 

UNITED STATES DISTRICT COURT 
FJR THE DISTRIJT JF CJLUMBIA 



UNITED STATES OF AMERIiilA. ) 

) 
vs 



) MISC, NO. 77-73 

) 



JJHN DOE, et al ) 

) 
(John Wesley Dean III) ) 



•1100(137, May 14, 1973 

The above-entitled cause came on for hearing at 

9:30 a.m., before THE HONORABLE CHIEF JUDGE JOHN J. SIRICA. 

APPEARANCES : 

HAROLD TITUS, U.S. ATTORNEY FOR D.C. 
EARL SILBERT, ASSIST. U.S. ATTORNEY 
SEYMOUR G'LAhZEK, ASSIST. U.S. ATTORNEY 

CHARLES NORMAN SHAFFER, ESQ. 
ROBERT C. MC CAITOLESS, ESQ. 

DAVID DORSEN, ESQ., OrPICC OF nrCJL^iL PfflSEaiT^ 
WILLIAM MAYTON, ESQ., OFriJC OF SPCCIAL PRJGLJUT Ot 

CHARLES MORGAN, ESQ. -'^^/<// 77^--s 



IV 



NICHOLAS SOKAL 

OinCIAL COURT REPORTER 

4800 -F UNITED STATES COURT HOvSC 

WASHINGTON. D C ^ooci 

426 74.54 



373 



2 

MR. SHAFFER: Good morning. Your Honor. 

May it please the Court, brothers at the Bar, ladies 
and gentletnen, my name is Charles Shaffer. I am from Rockville, 
Your Honor, and I have the privilege of representing Mr. John 
W. Dean, III, who is the movant in the matter before the Court 
this morning. 

Your Honor, the motion is somewhat self explanatory. 
Mr. Dean, as you know, and as has been widely circulated in the 
press and as a fact of which you can take judicial notice was 
until last Monday employed on the staff of the White House and 
in his capacity at the White House which terminated sometime 
around noon and was announced on national television by the 
President on April 30th, enjoyed the privilege of possessing and 
using certain classified materials. Upon his termination his 
classification also terminated, Your Honor, and at that moment hi 
was confronted with his possession or having under his custody and 
control certain classified documents which are obliquely described 
in the motion. 

At that point he first addressed himself to his continiking 
problem of not having the clearance but having these items in hiji 
control. As you know from the motion, the Honorable Mike Mansfi<!ld, 
the Majority Leader of the Senate, had written my client sometim<! 
in January and had asked him to take, in a requesting way, had 
asked him to take certain steps to insure that any documents thai: 



374 



my client thought might have a bearing upon an undescrlbed up- 
coming investigation conducted by the Senate would be preserved, 
My client considered that not only as a prefatory request but 
also one that may have some directory power and might subject 
him to contempt of the Senate if he did not heed that request at^ 
as a citizen he thought he should. 

So prior to his termination he took steps to Insure that 
these documents would remain in his custody and control should he 
be abruptly terminated, and as he anticipated, should he not be 
able to get into his office. 

As Your Honor knows in this affair, and Your Honor knojws 
perhaps more than the rest of us knows about, and T say that 
properly from your continuing connection with the matter in this 
courtroom-- 

THE CJURT: --there might be some doubt about that. 

MR. SHAFFER: Your Honor, I haveno doubt about it and 
I don't say it in a facetious way, and as a matter of fact, that 
is why I filed the motion under th e miscellaneous number that 
1 did, so that the matter would be brought to your attention. 
As a lawyer I felt I had to advise my client, I had to advise 
him in light of the security statute which said he couldn't 
control that document any longer, and I didn't want him to make 
a judgment on his own nor did I want to make it for him as to 
whom he should deliver that document to, and T was always taught 



375 



by my father that when you are in trouble the policeman was youj 
friend, and when I got a little older and went to law school I 
learned that the Court took the place of the policeman, so I 
thought the best thing to do would be to come to the Court and 
let the Court decide what disposition if any should be made of 
the document. 

I would also like to say, Your Honor, the reason we 
went through the mechanics that we did, putting it in a safe 
deposit box, I had never possessed the document. Your Honor, and 
I say that as an officer of the court and hope you accept that as 
a true statement, and I never reviewed the contents of the docu- 
ment and I make that statement under the same circumstances and 
I have deliberately avoided doing that because I do not enjoy 
the classification that ray client once did, and under the statutje 
I didn't want to violate it. I didn't want to unwittingly put 
the Court in the position of violating the statute. 

THE COURT: By golly, I don't want them to put me in 
jail. 

MR. SHAFFER: Your Honor, I have no fear of that. 
I just said to my client, look, you are possessing it now and 
there is no sense enlarging the circle, continue to possess it bjut 
get it to a safe deposit box and give me the keys and I'll turn 
the keys over to the Court and in that way it will be beyond 
your control because you don't have the keys and it won't be in 
anybody alse's control until you respond to the appropriate 



376 



1. 



t 



order of the Court. 

So, Your Honor, I don't care what you do with the 
document. Now I have seen a lot of people have come in and say 
they want the document. I don't consider it my place to tell 
Your Honor what you should do or shouldn't do with the document 
even in an advisory way. You don't need advice from me and I 
have none to offer. And if you do accept the keys to the box 
we will follow whatever directive you suggest. And I would like 
to be excused from further proceedings oncej'ou accept the keys, 
if you do, because I properly have no further place in the motio 

Now I did notice that I was directed to bring my clien 
to the courtroom today and I have. And I certainly will abide b 
whatever rules the Ccurt sets. 

THE COURT: Do you have any objection to the Court pro 
pounding a few questions to your client? I want to know the ty|>e 
of classification we have in this case. 

MR. SHAFFER: I have none whatsoever. Your Honor, but 
T do want to say this -- 

THE COURT: --he doesn't have to say anything that 
might incriminate him. 

MR. SHAFFER: Under the Ellis case I am going to make 
appropriate objections should Your Honor in my humble judgment 
go beyond the scope of what we have admitted in the motion. 

THE COURT: Maybe you can answer the question. 



377 



MR. SHAFFER: Your Honor, I don't think I can answer 
the question because I don't know what the document is. 

THE COURT: As I understand the statute there are 
three specific classifications. The first is Top Sacret, 
Secret, or Confidential. 

MR. SHAFFER: That statute is out-dated. Your Honor. 
They got something better than Top Secret. 

THE COURT: What have they got now? 

MR. SHAFFER: I don't know what they call it but that 
is what this document is. 

THE COURT: That is what I wanted to ask your client. 
I wanted the classification. 

MR. DEAN: It is Top Secret - Handle via Commit Channels, 

THE COURT: Who decides what classification should be 
given to documents or papers, or anything? Who makes the de- 
cision? 

MR. DEAN: In this instance it would be the agency whc 
did the classifying. 

THE COURT: Which agency was that? 

MR. DEAN: This was a combination of several agencies 
including the FBI and other national security agencies. 

THE COURT: All right. 

Now, without disclosing the specific contents of the 
material can you tell the Court in what manner they might effect 
the national security? 



378 



.7 

MR. DEAN: Your Honor, the fact that it has the class- 
ification on it would indicate that those who did the classifyin|g 
felt there were items in there that could someway effect the 
national security. Having read the statute that covers disclosutre 
of national security matters it would seem in part to fall within 
some of those restrictions of that statute. 

THE COURT: All right. Thank you. 

Now, are you a party to this litigation, counsel 
(addressing Mr. Morgan)? 

MR. MORGAN: Well, sir, I haven't been served but if 
the contents of those documents are wiretap conversations I 
would think I would be. I wonder would the Court inquire the 
words "via Conmend'as he said the classification? 

THE CJURT: I don't follow you. 

MR. MORGAN: Mr. Dean said it was Top Secret via 
Cofloment Channels. 

MR. DEAN: It is handled commit --c-o-m-ra-i-t channel^. 

THE COURT: All right, thank you. Mr. Silbert, or 
Mr. Glanzer? 

MR. SILBERT: May it please the Court: Earl Silbert, 
appearing on behalf of the United States together with Mr. 
Glanzer, Mr. Campbell and Mr. Titus. 

If the Court please, we have filed as I am sure Your 
Honor is aware, a response to the motion of Mr. Dean. Our 
position is fairly straight- forward . Since as Mr. Dean acknow- 
ledges in the motion that the property that he has filed and 



379 



.8 

placed in a safe deposit box is property of the United States, 

that he came into possession of while he was an employee of the 
United States and because he is no longer an employee of the 
United States the position of the United States is that that 
property, that is, the documents should be returned to it. 

That is the first reason for our position that we oughjl 
to have possession of the documents. 

The second reason is also, or emanates from the fact 
that Mr. Dean in his motion alleges these documents may have a 
bearing on the matter under investigation by the grand jury whidh 
is an arm of this court. For that reason we also want possessicr 
of the documents so we may examine them to determine what relevance 
if any they have to the investigation and if they have any rele- 
vance at all to submit them to the grand jury for its consideratfion 
in its ongoing investigation. 

That briefly is our position, if the Court please. 

We have also since we filed our response to the raotior 
of Mr. Dean received copies of motions filed by the Senate 
Select Committee through its chief counsel, Mr. Dash, and his 
assistant Mr. Dorsen. We also received a copy of the motion 
filed by attorneys in the socalled Common Cause litigation. We 
are prepared to respond to those at this time or at a later time 
after they have an opportunity to present their position to the 
Court, depending on Your Honor's desire. 



380 



THE COURT: That is a separate proceeding. I am not 
going to hear the Common Cause matter today. You have so many 
days to answer their motion. We will have another hearing if 
necessary on that. 

MR. SILBERT: Very well, Your Honor. 

With respect to any position that we have taken with 
respect to those documents we have at no time accepted custody, 
of course we never seen the documents, we have no idea what is 
in them other than is contained in the allegations of the motiorjs 
filed by Mr. Dean and also the allegations or statements made by 
his counsel here this morning. In fact, at the time the motion 
was filed we did not even have a top security clearance ; since 
that time we have received such a clearance so I believe we have 
access to those documents. 

THE COURT: All right. 

MR. SILBERT: Now at the appropriate time, if Your 
Honor pleases, I will respond to the request of the Senate for 
access to those documents. 

I might also say if the Court please, as indicated in 
our motion, though we have asked for return of the documents we 
have absolutely no objection to a copy of them being retained 
by Your Honor for whatever use, if any, you deem appropriate. 

THE COURT: That is very kind of you offering to do tl|at. 
Thank you. 

Is Mr. Dorsen here? 



381 



.10 

:1R. DORSEK: Yes, Your Honor. 

THE GJURT: You represent the Senate Committee? 

MR. DJRSEN: Yes, I do. Your Honor. My name is 
D?vid Dorsen. I am assistant chief counsel with the committee. 

Like other persons who appeared today we do not know 
of course what is in the documents. On the other hand from the 
description of Mr. Shaffer it appears to be within our mandate 
and we would like to have an opportunity to obtain a copy of the 
documents. We take no position viiatsoever on whether the goverrj- 
ment should have the original documents, we are simply seeking 
copies of those documents. 

As our motion papers indicate there is a threshold 
question which we pointed out to the Court, and that is whether 
there is anything correctly before the Court in the nature of 
jurisdiction over being handed keys to a safe-deposit box. 

Jur position is that if theCourt has jurisdiction 
we should be entitled to a copy of the documents. If the Court 
does not have jurisdiction we have subpoenaed the various persoris 
who might get the documents should Your Honor return the keys tc 
Mr. Dean, namely, Mr. Dean, the executive office of the Presicicr)t, 
and the bank at which the safe deposit box is located. 

In sum, we believe as the record now stands we are 

entitled to copy of those documents and regardless of disposititJn 

1 
Your Honor makes on any other portion of the motion that we should 

be entitled to a copy of those documents. 



382 



11 

THE COURT: All right, sir. Mr. Silbert? 

MR. SILBERT: Your Honor, I neglected to indicate so ^ar 
as the motion, the motion before Your Honor is a motion by Mr. 
Dean to file the documents with the Court, via the form he has 
indicated. We have absolutely no objection to the granting of 
that motion and our position becomes relevant only after Your 
Honor makes a disposition of that motion. We join in his motionj. 
They should be filed with the Court because of the circumstances 
in which he finds himself and in a sense he is filing the equivaj- 
lent of an interpleader motion. 

Now, the reason for the suggestion with respect to 
Your Honor retaining a copy of the documents even though the 
United States feels it is entitled to their return to avoid any 
possibility of the appearance of subsequent destruction or mis- 
handling of the documents, retention of the documents by Your 
Honor, copy of the documents would clear away the possibility oi 
such an allegation ever being made or having any substance to it 
if indeed it was made. 

With respect to the position of the Senate, Your Honoi 
we do not oppose the Senate receiving a copy of those documents. 
We do have one problem, however, and that is because of the fact 
that as represented to Your Honor by both Mr. Shaffer and his 
client, Mr. Dean, the nature of the security classification of 
those documents as an initial matter we think if Your Honor grattts 



383 



12 

access to the Senate Select Committee that access should be 
limited to the Chairman, Senator Ervin, or the Vice Chairman, 
Senator Baker, or any other senator who is a member of that 
committee, senator or senators designated by the chairman or 
vice chairman. 

Based on what these documents turn out to be and their 
relevance if any to the investigation, then if the Senate wants 
to take appropriate steps to make sure the staff members receive 
the appropriate clearance then of course we would fully cooperate 
with them ir. this matter and have no objection. 

So to summarize again, if the Court please, no objectljon 
from our part to the Senate Select Committee having either access 
to or copy of those documents retained by the Court, but as an 
initial step we simply point out to the Court because of the natjure 
of the security classification that initial access should be 
limited as I previously outlined to Your Honor. 

THE COURT: All right. Anything else? 

Title 18 of the United States Code, Section (4) (c) 
states : 

"Nothing in this section shall prohibit the furnishing 
upon lawful demand of information to any regularly consti- 
tuted committee of the Senate or House of Representatives 
of the United States of America, or joint committee thereof. 

I think you gentlemen have probably come to the same 



384 



13 

conclusion I have come to in this matter. 

First of all, I will ask counsel to prepare an order. 
Agree upon an order which will contain the substance of what I 
am about to say. 

The original copies of the documents should remain in 
the possession of the Clerk of this Court. This Court does not 
\«nt to look at those documents at this time, at least. The 
Clerk will furnish certified copies of those documents to counse 
for the government for such use as they think they are entitled 
to use them for. For instance, matters before the grand iury 
or other matters. 

Also, a certified copy of those documents in the safe 
deposit box will be furnished to Committee counsel. 

I think the suggestion that Mr. Silbert made is a 
good one. For the time being at least they ought to be limited 
to the Chairman, the vice-chairman and such other members the 
chairman might designate, or vice chairman. In other words, 
these documents should be kept secret until such time as the 
committee believes they should be released to the public or 
released in a public hearing. And I am sure the government 
counsel realize the importance of that also. 

That will be the order . Counsel prepare an order. 
I will ask my clerk, Mr. Christof ferson , Mr. Dean, counsel for 
Mr. Dean, go to the bank, turn the keys over, obtain those 



385 



14 

documents, bring them back, turn them over to Mr. Capltanio 
(courtroom clerk) and he will have xerox copies made and certified 
for counsel. The originals will remain in the possession of the 
Clerk of the Court. I am sure they will be safe there. 

Anything further? 

MR. SHAFFER: Your Honor, it is implicit you granted mly 
motion but may we say that in the order? 

THE COURT: Yes. I>fotion granted; government's request 
is granted. All right. Everybody wins. 

* * * (10:25 a.m.) 



CERTIFICATE 

It is certified the foregoing is the official 
transcript of proceedings indicated. 

NICHOLAS SJKAL 
Official Reporter 



34-966 O - 74 - pt. 1 - 26 



386 



UNITED STATES DISTRICT COUKT 
FOR THE DISTRICT OF COLUMBIA 



United States of Axnerica : 

t 

V. : Miscelloneous No. 77 - 73 

John Dog, et al. : 



f: 



'ir:D ■■ 



2. 5. ^ ^ 5. ''^'^^ ^ '^ Id/'i 

•'A Aire r ^ 

This matter having come before the Court pn the motion 
of John Wesley Dean, III, to Lodge Document with the Court; and 

Both the United States of 7\jnerica, through the United 
States Attorney, and the Senate Select Committee oh Presidential 
Campaign Activities, through its counsel, having filed pleadings 
in which they requested or moved the Court to furnish them with 
the documents referred to in the motion of Dean; and 

The Court having held a hearing on this matter pn May 14, 
1973, at which time Mr. Dean was present and represented by 
counsel, and the United States Attorney and counsel for the Senate 
Select Committee were present; and 

The Court having heard oral argument of counsel; and 

The Court having examined the motions and other pleadings 
relevant to this matter; ,j 

It is by the Court this/ ^7 day of May, 1973, 

ORDERED that the motion of Jolm Wesley Dean, HI, to lodge 
documents with the Court is hereby granted; and it is 

FURTHER ORDERED that Mr. Dean is hereby directed to receive 
from the Court or its authorized representative the keys previously 
delivered to it to the safety deposit box specified in his motions; 
that upon receipt of the keys, Mr. Dean, with his counsel, with 
the courtroom clerk, Mr. James Capitanio, and with a lav; clerl'. 
of the Court, D. Todd Chxiscof f erson, is to proceed forthwith 
to the safety deposit box and remove from it tlie documents; tliat 
Mr. Dean, upon removal of the documents, is to deliver them to 
the courtroom clerk Mr. Capitanio; and it is 



387 



FURTHER ORDERED that the courtroom clerk is to ta):e cusLo'.ly 
of these documents and place tliem under seal;' cind it is 

FURTiJER ORDERED that a certified copy of these documents 
is to be given to the United States by delivery to tlie appropj^iabe 
representative of the Office of the United States .Attorney for 
the District of Columbia; and it is 

FURTHER ORDERED that tlie United States Attorney or his 
authorized representatives are to submit to the grand jury for 
its consideration any or parts of the documents v;hich relate 
directly or indirectly, to its investigation into the Watergate 
incident; and it is 

FURTHER ORDERED that certified copy of the documents is 
to be given to counsel for the Senate Select Committee on Presi- 
dential Campaign Activities for delivery to the Chairman of the 
CoiTunittee, the Vice-Chairman of the Committee, or any United 
States Senator who is a member of the Committee, dewignated by 
tlie Chairman or Vice-chairman as autliorized to receive tlie 
documents. 




((/ Z H /E i^=\JU DGE 

i„.i,_S i . J... C. u^ 1 



388 



UNITED STATES DISTRICT COUiyT 
EOF THE DISTRICT OF COLUM 



In the Matter of the Application of 

UNITED STATES SENATE SELECT: 
COMNUTTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 




Misc. No. 70-73 



APPLICATION FOR ORDEF C ON FEF RING IMMUNITY UPON AND 
COMPELLING TESTIMONY AND PRODUCTION OF INFORMATION 
FROM JEB STUART MAGRUDEF 



The Select Committee on Presidential Canrpaign Activities of the 









United States Senate, by its Counsel, hereby applies to this Court for an i-t'", * 
order conferring immunity upon and compelling Jeb Stuart Magruder (the->C:" •■ 
"Witness") to testify and provide other information before this Committee /.}. ■ 
pursuant to the provisions of Title 18, United States Code, Sections 6002 '-•* ' 
and 6005. In support of this application the Committee states: \^ ^. 

1. The Select Committee on Presidential Campaign Activities, 









piiTsuant to Sfe nate Resolution 60, Section 1(a), 93rd Congress, 1st Seas ion.-j^-.^ 
i» inqaixing into th« eattent, if any, that illegal, improper, or unethical 'f^^. 

activities were engaged in by any persons, acting individually or ia |^ 

'k '-'^^l 

combination with others, in the Presidential election of 1972, or any ...-j«^ 

; '"%■#: 

campaign", "canvass, or other activity related to it. 

2. The Witness will be subpoenaed to appear before this Committee 
during hearings that will be held in the near future. 

3. It is anticipated that the Witness will invoke his Constitutional 
privilege against self-incrimination and refuse to testify or provide other 
information relating to his activities that come within the scope of the 
investigatory authority established by Senate Resolution 60. 

4. This Application has been approved by an affirmative vote of all 
seven members of the Select Committee as attested to by the Certification 
of Samuel Dash, Chief Counsel. Senate Select Committee on Presidential 



389 



Campaign Activities. The Certification is attached hereto as Exhibit 1. 
5. Notice of an intention to request this order was given to the 
Attorney General's designate of the United States as required by Title 18, 
U.S. C, ^s 6005 {b)(3) on May 7 , 1973, as attested to by the Certificate of 
Service attached hereto as Exhibit 2. The Attorney General's designate's 
ten day waiting period between notification and request for the order 
provided for in ^s 6005 (b)(3), has expired. 

Respectfully submitted. 



Samuel Dash 

Chief Counsel 

Select Committee on 
Presidential Campaign 
Activities 



May 18, 1973 



James Hamilton 
Assistant Chief Counsel 



Ronald D. Rotunda 
Assistant Counsel 



390 



'" ^ OAM J. KRVIN, Jit, N.C., CMAIMM 

HOWAMO M. ■*»««. J».. TCMM., VtC* CH^»*»p»AM 
MCMMAM &. TA1.MAOQC. OA. CDWAPO i. OUHNlT. rt-»- 

DAHIKL. K. thKXire. HAWAII LOWUJ. T. WKJCJtiW, J«^ COMi*. 

JOICM4 M. MO*<rOTA, N. MOC. 

SAWUKL OA«H 
CmXP COUMSU. AMO STA^r DtJtBCTXM 

rnio o. TMOMr^ON 

MIHOAiTT COUMSU. 
HUPUa L- EDMI9TU4 



QlCwlcb -^{alcs ^cnaic 

SELECT COMMITTEE ON 
PRESIDENTIAI. CAMPAIGN ACTIVITIES 

(rVmsVKffT TY) ». RK^ M, UO CONOnKS*) 

Washington, D.C 20510 



CERTIFICATION OF VOTE 

I, Samuel Dash, Chief Counsel of the Select 
Committee on Presidential Campaign Activities of the 
United States Senate, do hereby certify that the APPLICA- 
TION FOI ORDER CONFEPr ING IMMUNITY UPON AND 
COMPELLING TESTIMONY AND PP ODUCTION OF IN- 
FOFMATION FROM Jeb Stuart Ma gruder filed pursuant to 
the provisions of Title 18, United States Code, Sections 6002 
and 6005 was approved by a unanimous vote of the seven 
menabers of said Corrunittee on May 2, 1973. 






S amuel Dash 
Chief Counsel 



May 18, 1973 



EXHIBIT 1 



391 



MCRM«M K. TA4.MAOCC. CA. KDWAMO 

DANIU. K. INOurc. HAWAII UtWU-i. ^. IWICK*^ ML^ 

n*KrH M. MOMTOT*. M. MOC 

SAMUCU 0«SH 
OBBV OOUMSCL AMO STAFT IMIiaCTQII 



^CixHcb ^{ct{g« JS)enai9 



rma> o. T»40*4r90M 

MiMMTT COUMSO. SELECT COMMITTEE ON 

nurus l_ EDMixTSM PRCSIDENTIAL CAMPAIGN ACTIVITIES 

DMF^n OOUHAA. (pUftSUAKT TO ■. IU3. M, ItO OOMOACM) 

Washington. D.C. 20510 



CERTIFICATE OF SEF VICE 

I, Samuel Dash, do hereby certify that on the 7th 
day of May, 1973, I served a notice of our intention to seek an 
order conferring immunity upon and compelling testimony and 
production of information from Jeb Stuart Magruder, upon the 
Honorable R ichaipd Kleindienst, Attorney General of the United 'T'j- 
States and Henry Peterson, his designate, by having said notice 
hand delivered to hinn at his office, located in the Main Justice 
Building, 10th and Constitution Avenue, N. W. , Washington, D.C. 
A copy of this notice is atta-ched to this Certificate of Service. 



Samuel Dash 

Chief Counsel -/r^,.. 



May 18, 1973 

EXHIBIT 2 



392 



FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL CAMPAIGN 
ACTIVITIES 



Misc. No. 70-73 



NOTICE OF APPLICATION FOR ORDER CONFERRING IMMUNITY 
AND COMPELLING TESTIMONY OF WITNESS 

•TOt;^ ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, 
:• ' • -..■.; . Main Justice Building, 10th and Constitution Avenue, 
N.W. , Washington, D.C. 20530 

PLEASE TAKE NOTICE that on the 17th day of May ; 

1973, at 10.-00 A.M. or as soon thereafter as counsel may be 

■heard, in the courtroom of the Honorable John J. Sirica, Chief 

Judge, United states District Court, District of Columbia, 

located in Courtroom No. 2, United States District Courthouse, 

Third and Constitution Avenue, N.W. , Washington, D.C.* the 

undersigned, acting on behalf of the Select Committee on 

Presidential Campaign Activities of the United States Senate, 

will apply to the Court, pursuant to the provisions of 

Title 18, United States Code, Sections 6002(3) and 6005, 

for an order conferring immunity upon and compelling 

Jeb Stuart Magrudar to testify and provide other information in 

aa.ioQoixy conducted by said CorasuLtte«. 



.^: > 







2h'ief Counse] 

Senate Select Committee on 

Presidential Campaign Activities 



Dated this 7th day of 
May . 1973 



;■•'•>;'.>;/■/•'"•' ■• 



393 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT: Misc. No. 70-73 

COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPOF T 
CF APPLICATION FOR ORDIR CONFE F FIN G IMMUNITY UPON 
AND COMPELLING TESTIMONY AND PRODUCTION OF 
INFORMATION FIROM JEB STUAR T MAGRUDEF 



The Select Committee on Presidential Campaign Activities of 

the United States Senate has applied to this Court for an Order conferring 

immunity upon and compelling Jeb Stuart Magrader to testify and provide 

other information before the Committee pursuant to the provisions of Title 

18, United States Code, Sections 6002 and 6005. 

These sections, in pertinent part, provide: 

"Section 6002. Immunity generally. 

"Whenever a witness refuses, on the basis 
of his privilege against self-incrimination 
to testify or provide other infornnation in a 
proceeding before or ancillary to -- 

*** 

"(3) either House of Congress, a joint Committee 
of the two Houses, or a committee or a subcommittee 
of either House and the person presiding over the 
proceeding connmunicates to the witness an order 
issued under this part, the witness may not 
refuse to comply with the order on the basis of 
his privilege against self-incrimination; but no 
testimony or other information compelled under 
the order (or any information directly or indirectly- 
derived from such testimony or other infornnation) 
may be used against the witness in any criminal 
case, except a prosecution for perjury, giving a 
false statement, or otherwise failing to comply 
with the order. " 



394 



Page 2 

"Section 6005. Congressional proceedings. 
"(a) In the case of any individual who has been or may- 
be called to testify or provide other information at any 
proceedings before either House of Congress, or any 
committee or any subcomnnittee of either House, or any 
joint committee of the two Houses, a United States district 
court shall issue, in accordance with subsection (b) of this 
section, upon the request of a duly authorized representative 
of the House of Congress or the Committee concerned, an 
order requiring such individual to give testimony or provide 
other information which he refuses to give or provide on the 
basis of his privilege against self-incrimination, such order 
to become effective as provided in section 6002 of this part. " 

"(b) Before issuing an order under subsection (a) of this 
section, a United States district court shall find that-- 

*** 

"(2) in the case of a proceeding before a committee or a 
subcommittee of either House of Congress or a joint 
committee of both Houses, the request for such an order 
has been approved by an affirmative vote of two-thirds of 
1 the members of the full committee; and 

•"(3) ten days or more prior to the day on which the request 
for such an order was made, the Attorney General was served 
with notice of an intention to request the order. 

"(c) Upon application of the Attorney General, the United 
States district court shall defer the issuance of any order 
under subsection (a) of this section for such period, not 
longer than twenty days from the date of the request for 
such order, as the Attorney General may specify." 

As the exhibits attached to the present Application indicate , the 

procedures required by Section 6005 have been met. All seven members 

of the Select Committee have approved this Application. Moreover, the 

Select Committee, through its Counsel, has notified the Attorney General's 

designate of its intention to request the instant order. The Attorney 

General's designate's ten day waiting period between notification and 
request for the order provided for in ^s 6005 (b)(3), has expired. 



395 



I 
V 



Page 3 



Because the requirements of Section 6005 have been complied 
with, the attached order should be entered. 



Bespectfully submitted. 



Samuel Dash 
Chief Counsel 

Select Committee on 

Presidential Campaign Activities 



James Hannilton -^ 

Assistant Chief Counsel 



May /^. 1973 O^^Jf/ ^O- CC^^..^ 



Ronald D. Rotunda 
Assistant Counsel 



396 



FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of: 

UNITED STATES SENATE SELECT : Misc. No. 70-73 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



ORDER CONFERRING IMMUNITY UPON AND COMPELLING 
TESTIMONY AND PRODUCTION OF INFORMATION FROM 
JEB STUART MAGRUDER 



The United States Senate Select Committee on Presidential 
Caii5>aign Activities, having made vrritten application for an order 
conferring immxuiity upon Jeb Stiiart Magruder and compelling 
him to testify and provide other information before it, pursuant 
to Title 18, United States Code, Sections 6002 and 6005, and 
on Court finding that all procedures specified by ®s 6005 have 
been duly followed, it is hereby this day of May, 1973 

ORDERED that the said Witness in accordance vrLth the 
provisions of Title I8, United States Code, section 6002 and 
6005, shall not be excused from testifying or providing other 
information before the Select Committee on Presidential Campaign 
Activities on the groiond that the testimony or other information 
sought may tend to incriminate him. 

AHD IT IS FURTHER ORDERED that the said Witness appesur when 
subpoenaed by said Committee and testify and provide such other 
information that is sovight with respect to the matters under 
Inquiry by said Committee, 

AND IT IS FURTHER ORDERED that no testimony or other informa- 
tion compelled under this ORDER (or for any other information 
directly or indirectly derived from such testimony or other 
information) may be used against the Witness in any criminal 
case, except for perjury, giving a false statement, or 
otherwise failing to comply with this ORDER. 



United States District Judge 



397 



CEIRTIFICATE OF SERVICE 

I, the undersigned, do hereby certify that on the 18th day of May, 
1973, served a copy of the attached documents on the Honorable Fichard G. 
Kleindienst, Attorney General of the United States and Henry E. Petersen, 
his designate, by having said papers hand delivered to his office, located in 
the Main Justice Building, 10th and Constitution Avenue, N. W. , 
Washington, D. C. and I served a copy of the attached documents on 
Mr. James Bierbower, attorney for Jeb Stuart Magruder, by having 
said papers hand delivered to his office, located at 1625 K Street, N. W. , 
Washington, D. C. 



^Orr>.cJ^ lD,\^^^'oftL 



398 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 



United States Senate Select Committee 
on Presidential Campaign Activities 



Misc. No, 



APPLICATION TO DEFER ISSUANCE OF ANY ORDER 
RE QUIRING THE TE STIMONY AND ' 
PRODUCTION OF INFORMATIO N 
FROM JEB STUART MAGRUDER 

Henry E. Petersen, Assistant Attorney General in 
charge of the Criminal Division of the Department of Justice, 
aooearinq herein pursuant to the avithority vested in him by 
18 U.S.C. 6005, and 28 C.F.R. 0.176, hereby -acknowledges the 
^rec^eipt by him on May 7, 1973, of Notice by Senate Select 
Committee on Presidential Campaign Activities that said 
Select Committee acting through its Chief Counsel, Samuel 
Dash, would on May 17, 1973, apply to this Court, pursuant 
tcthe provisions of 18 U.S.C. 6002(3) and 6005, for an order 
conferring immunity upon and compelling Jeb Stuart Magruder to 
testify and provide other information in an inquiry conducted 
by said Select Committee. 

Pursuant to the authority vested in him by 18 U.S.C. 6005, 
and 28 C.F.R. 0.176, the said Assistant Attorney General 
Henry E. Petersen hereby requests this Court, pursiant to the 



399 



- 2 - 



provisions of 18 U.S.C. 6005(c), to idefer tor a period of 
twenty (20) days from the date of the request by the Select 
Conunittee for such order the issuance of any order under 

18 U.S.C. 6005(a) requiring Jeb Stuart Magr'pder to give testimony 

I 

or provide other information at any proceeding before the Select 
Committee .... 




Assistant Attorney General 



Dated this -. '/ ■ day of 
May, 1973. 



CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a copy of the foregoing Application 
to Defer Issuance of any Order Requiring the Testimony and 
Production of Information from Jeb Stuart Magruder has been 
mailed to Samuel Dash, Chief Counsel, United States Senate, 
Select Committee on Presidential Campaign Activities, 
Washington, D.C. 20510, this 21st day of May, 1973. 



EARL J. SILBERT, Principal 
Assistant United States Attorney 



400 



IN T1!K UI-IITED STATES DISTRICT COITRX 
FO;i THE DISTRICT Oj' COLUHBL\ 






iiM- 






IM RE: , • ' 

{.J-;. APPLICATION OF THE UNITED STATES 

^ii"; SENATE SELECT COMMITTER OH 

:=^'r PRESIDENTIAL CAMPAIGN ACTIVITIES 



ORDER 



Misc. 






". - -i-ri ./•■■""' 'lit 'J 



V ■'■'.'"v'.'-fi.v^, .'.5 
; •» t.- ■ i- ^f •TV/ 

Upon consideration of the Application of 'the A6e»itt:^*ljJ'^yi:^ 
Attorney General to Defer Issuance of Any Order Flequirlpg ^he j jV',l'^^*y 



;'Te8timony and Production of Information from Jeb Stuart Magrflder^^vi;^'^' 
■ filed with the Court on May 21, 1973, it is by the Court t\ilt '^Jj^ArAVi 
V7^^^^ day of May, 1973, . : .v' . ^■"■^M^ 

. ■' ■ •■. ■ ' ■ ■ ' '■ V - ■■'■r'^Aif 

••;"• ■ . ORDERED that the Application of the Assistant Attornev'S: 



r>« 



U'Generalf be, and the same hereby is, granted. 



■*i.^'»- '•yS/*'-'*-\.: 




' .■ •7'. V ■: 'k « M »•;? iil 




A 



By. 



TKUE COPY ^ : '■ •-:^ ■ > -"fty^f^'-jiJ 
m F. DAVEY. ClerV^:'-^v5''4^'5^^ 




mm 






•:.i^r^--' 



401 



UNITED STATES niSTRTCT r.OITR T 
FOR THE DISTRICT OF CO ^UMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



FILED 



james f, davey 
cler;< 



Misc. No. 70-73 



SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN 
SUPPORT OF APPLICATION FOR ORDER CONFERRING IMMUNITY 
UPON AND COMPELLING TESTIMONY AND PRODUCTION OF 
INFORMATION FROM JEB STUART MAGRUDER 



On May 18, 1973, the Select Committee filed an Application to this 
Court for an order conferring inamunity upon and compelling Jab Stuart 
Magnider to testify and provide other information before the Committee 
pursuant to 18 U. S. C. s s 6002, 6005. The Court has asked for briefing 
as to whether it has discretion to deny this application if the procedural 
requirements specified by the statute have been met (as they ha'vfe-been in 
the present case). It is the Select Committee's position that it is patent 
from the language of the statute, its legislative history and applicable 
case law that no such discretion exists and, perforce, the requested order 
must issue. 

1. The prescription in I 6005 could hardly be plainer. That section 

provides that if the requisite procedures ha\e been followed- -L_e. , the 
request for an immunity order has been approved by a two-thirds vote of 
the members of the Committee and the Attorney General has been notified 
ten days previous to the filing of the Application- the order "shall issue." 
This provision, we respectfully urge, leaves no room for Court discretion. 

Moreover, the Attorney General has no power under the statute to 
block the issuance of an immunity order. The statute does provide that 



34-966 O - 74 - pt. 1 - 27 



402 



he be notified ten days before the request is filed (a right he can waive); 
it also provides that the Attorney General can require the Court to defer 
issuance of the order for an additional twenty days thereafter. Nowhere, 
however, is it even suggested that he has veto power over issuance of the 
order.* It is useful to juxtapose the Attorney General's powers in this 
regard with those he has under sections 6003 and 6004 regarding grants of 
immunity to those testifying before Grand Juries, in criminal trials, or 
in administrative proceedings; in each of these situations the Attorney 
General can prohibit the issuance of an immunity order. Surely, if 
Congress had intended that the Attorney General— or the Court—have power 
to deny an immunity order in the Congressional context, it would have used 
different language than that employed, 

2, The legislative history of section 6005 supports these conclusions. 

As stated in H. R. Rep. No. 91-1549, 91st Cong. , 2d Sess. (Sept, 30, 1970) 

at p. 43: 

"Section 6005 sets out the procedure to be followed in 
Congressional proceedings. A court order must be 
obtained based on an affirnnative vote of a majority en" 
membors present in a proceeding before either House 
or a two-thirds vote of the members of the full committee 
in a proceeding before a committee. Ten days' notice 
must be given to the Attorney General prior to seeking 
the order. The Court must defer issuance up to 20 days 
at the Attorney General's request. However, the Attorney 
General i s not given veto power. Nor is the court given 
any power to withhold the order if the factual prerequisites 
are met. " (Emphasis added) 



The right to what amounts to a thirty day delay between notice 
and the actual issuance of the order allows the Attorney 
General to isolate evidence independent of the witness' testis 
mony upon which to base a subsequent prosecution. National 
Commission on Reform of Federal Criminal Laws, Working 
Papers at 1406. This is the sole protection Congress has 
provided to insure that criminal prosecution not be jeopardized 
--there is no further provision allowing the Attorney General 
to block immunity if he believes it will make future prosecution 
more difficult. Moreover, we would suggest that, in the 
present case, the government has had enough time--around 
eleven months— to isolate independent evidence with which to 
prosecute Mr, Magrudcr. 



403 



The last two sentences of the above paragraph are repeated verbatim 

in Senate Report 91-617, 91st Cong. . 1st Sess. (Dec. 18, 1969), at 146. 

And, at 145, the Senate Report states: 

"The court's role in granting the order is merely to 
find the facts on which the order is predicated. The 
statutory language is 'shall. '" 

That neither the Court nor the Attorney General has discretion to 

deny an immunity order when the appropriate procedures ha\e been 

followed is also clear from the Working Papers of the National Commission; 

for the Reform of Federal Criminal Laws, the body that proposed the 

initial draft of what became section 6005. In regard to the powers of the 

Court, the Commission (at p. 1440) said: 

"The draft statute, accordingly, in continuing the 
requirement of application to a United States district 
court, makes more clear than the present statute the 
intention that the court's function is not discretionary. 
The court 'shall' issue the direction to testify 
subject to a finding that the procedural requirements 
concerning specified voting arrangements in Congress, 
and notice to the Attorney General, have been met . " 

(emphasis added) 
Respecting the Attorney General's prerogatives, the Commission 

(at 1440) declared: "^^"^ 

"In the special instance of congressional inquiries, in 
contrast to adnninistrative proceedings, it would be 
virtually unthinkable to give the Attorney General the 
additional power of disapproval of conferment of 
immvinity, because in a Teapot Dome-type congressional 
in\estigation, the Attorney General himself would be the 
focus of the inquiry. " 

i There is also case law in this jurisdiction that bolsters the 

conclusion that the Court must grant the order if procedural regularity is 



404 



apparent. In re McElrath , 101 U.S. App D. C, 290, 248 F 2d 612 (1957) was an 
en banc decision, involving a request for immunity by the Senate Committee 
on the Judiciary and its Internal Security Subcommittee to which the prospec- 
tive witness objected, that was decided under the predecessor to section 
6005. That statute would, on its face, have allowed far more discretion to 
the District Court than the present statute. The McElrath statute provided 
only that the requested immunity order "may be issued upon application by a 
duly authorized representative of. . . the committee concerned." Judge Burger, 
speaking for four concurring judges, stated: 

"The discretion of the District Court is limited 
at this stage to a determination of the procedural 
regularity of an application and does not embrace 
such issues as the scope of the inquiry of the 
Coinniittee, the pertinency and relevancy of the 
questions propounded or the constitutionality of 
the statute. " 101 U. S, App D. C. at 295. 

The present statute, of course, provides that "a United States 
district court shall issue .... upon the request of a duly authorized representa^ 
tive of the House of Congress or the Committee concerned, an order requir- 
ing such individual to give testimony ..." In view of the luichallenged 
language in the McElrath concurrence that concerned a far less restrictive 
statute than now involved, we fail to see how this Court in the present case 
can conclude that it has discretion to deny the requested order since all 
procedural requirements have been observed. 

4. There is a further consideration that counsels against the Court's 
denying immunity in this case. We deal here with a delicate issue of 
separation of powers. The Congress has enacted -- and the Executive has 
signed into law -- a statute that on its face allows a Congressional 
Committee, in regard to a witness testifying before it, to obtain an 
immunity order even if the District Judge believes the order is unfair 



The use of immunity is, of course, a well-recognized investigatory tool 
frequently employed by both prosecutorial and legislative bodies. See e.g. 
Kastigar v. United States, 406 U.S. 441 (1972y: Murphy v. Waterfront 
Commission, 378 U. S, 52, 94-95 {19i.l) (\Vhite, J, concurring) 



405 



or unwise. We urge with deference that this Court should be 
extremely hesitant to interfere with the Select Committee's prescribed 
investigatory prerogatives, which are plainly a necessary concomitant 
to the Senate's legislative functions, in the absence of a clear statutory 
command authcr izing such interference. 

Worthy of note in this regard is Justice Frankfurter's 
opinion for the Court in UUman v. United States. 350 U.S. s 422 (1956) 
which concerned a predecessor immunity statute dealing with applica- 
tions by the United States Attorney that required the immunity grant 
to be "necessary to the public interest. " Justice Frankfurter, in order 
to avoid a construction of the statute that would raise serious 
constitutional problems of separation of powers, held that the statute 
gave the District Court no discretionary power to determine whether an 
immunity grant was in the public interest once it was determined 
that certain procedural requirements had been met. Id, at 431-4. 
The conclusion that the "public interest" required immunity was to be 
left solely to the U, S, Attorney. Such a nondiscretionary function by 
the Court would be within its proper judicial power and would not usurp 
the constitutional power of a coordinate branch; 

"Since the Court's duty ... is only to ascertain 
whether the statutory requirements are complied 
with by the grand jur^, the United States Attorney, 
and the Attorney General, we have no difficulty 
in concluding that the district court is confined 
within the scope of 'judicial Power. ' Interstate 
Commerce Commission v. "rimson , 154 U.S. 447," 
350 U.S. at 434. 

The present statute, drafted with UUman in mind (see W orking Papers 

at 1408) avoids serious constitutional problems by giving the Court no 

discretion to deny the immunity a Congressional body requests if the 

procedural prerequisites are nrtet. 



40(3 



CONCL U SION 

For the above reasons, the Application for an order 
conferring immunity upon and compelling testimony and producing 
of information from Jeb Stuart Magruder should be granted. 



Respectfully sumitted. 




Samuel Dash 
Chief Counsel 



James Hamilton 
Assistant Chief Caansel 



Ronald D. Rotunda 
Assistant Counsel 



May 31, 1973 



407 



CERTIFICATE OF SERVICE" 

I, the undersigned, do hereby certify that on 
the 31st day of May, 1973* I served a copy of the 
attached Supplemental Memorandum of Law on the 
Honorable Elliot L. Richardson, Attorney General 
of the United States, and on Archibald Cox, 
special prosecutor, by having said Memorandum 
hand delivered to their offices in the Main 
Justice Building, Tenth Street and Constitution 
Avenue, N.W., V/ashington, D.C. I also served a 
copy of said Memorandum upon James Bierbower, Esq.^ 
attorney for Jeb Stuart Magruder, by depositing 
same in a United States Post Office, postage 
prepaid, addressed to his office at l625 K Street, N.W., 
Washington, D.C. 



Ronald D. Rotunda 



408 



;fi>; i'llE DISTH (.1 OF COl.U.-lElA 



In lh',1 Mettui oX the Ai't-' Icai ion. o! 

UM'tr:D STATES S.'ii-'ATE S"!! ECV 
CCMMITTIiK OK PrviiSIDENTlA;, 
CAW.aCN ACTIVJIIES 



Misc. No. 70-73 



MEMOR/.WDUl'l 0'.:'i?:':tlALr OF THE SPIiCIAI, PROSECUTOR 
ON iM'PLiC riON FOR 0;ll)E2S CONFERKIKG imUN'TTY 



This rxnoranJiire is !i:jniitred in response to a request that the Attorney 
General furni.^li his view:; legerdiuij the powers and duties of the District 
Couir:: in acting jpon rpijlicn t i ens by rhe Sffnaro Select ConimitteQ for orOors 
granting Irnm'.'.nity and compel 1 in? testimony pu'-suant to 18 U.P.C. 6005. Ey 
Dcparti-.ent of Justice C.dcr 517-73 (V.ny 31, 1573), ti:fc Attorney General 
dclegatad to the Special froseciaor the authority to investigate and prose- 
cuto, among orliers, all offenses arising out of the Watergate matter. 
Included in this authority is the re?:ponsibility for handling applications 
for immunity. 

The Special Prosecutor is of the opinion that the continued conduct of 
■public and televised Senate hearings creates very serious 'danger : (1) of 
impeding investigation of the Watergate affair and associated misconduct; 
(2) of wide.ipread, pre-trial publicity which might prevent bringing to 
justice those guilty of serious offenses in high government office. The 
examination of major participants and possible defendants under use inununity 



/ We are attaching, for the Court's informntion, a copy of the 
letter r.ant to Senator Ervin by the' Special Prosecutor. 



409 



will ii ! uiv.i f y '.V>; o i Cf icul r;' oT : '.icrr.;' r'l' ^ pror.v:vV iow. The Select 
Ccmuiittcr' of the Senate nevci ti.cless re j':: tod a request that hcavings be 
tempor.'ii i j y suspeiidiid. 

Under these circumstances^ the Spf^cial Prosecutor deems it inappropriate 
to raise technical obstacles to the Select Committee's further conduct of 
the hearings. At the same time, this Court has a duty to consider steps 
within its power to insure both the Integrity of grand jury proceedings and 
the fairness of any trial upon indictments resulting therefrom. We, as 
officers of the Court, have an obligation to advise the Court upon its 
powers, as we understand them, and also upon the circumstances affecting its 
exercise of discretion. 

In our view, these are the applicable principles: 

1. Once the express conditions set forth in 18 U.S.C. 6005 are 
met, unconditional denial of any order to testify und.2r immunity would be 
beyond the Court's discretion. Subject only to some question whether John 
Dean Is a witness within Section 6005(a) v;ho "refuses to give or provide 
/^testii'.'on^/ on the basis of his privilege against self-incrimination," we 
believe t'ae express conditions have been s.itisfied. 

2. Although the matter is certainly not free fro-.a doubt, wa believe 
the Court has power to condition any order granting immunity upon measures 
safeguarding the integrity of grnnd jury investigations and the fairness of 
any resulting trials for criminal offenses. 

3. From the standpoint of the integrity of grand jury proceedings 
and the fairness of any subsequent trials, the most appropriate order would 
be one requiring the testimony to be taken in execut^vi? .'■■r.-.sion without sub- 
sequent publication. Bearing in mind the decirion of the Select Senate 
Committee to push forward with public hearings, the most appropriate condi- 
tion would seem to be the exclusion, during the giving of compelled, self- 
incriminatory testimony, of live or recorded radio, television, and other 

_/ 
coverage not permitted at a criminal trial. 



/ The Specla_] Prosecutor would also seek from time to time to persuade 

the Select Committee to accommoda;.e its hearings to the needs of 
criminal investigation and prosecution. 



410 



Uncon'~licn.-ary'riT;^v.":ce Tf 'Jir. Tfarr..-..: .: :!. Crclcr. 



Tho tJelcct Coin-rdttee's request is prenented under 13 U.S.C 6005- 
Both the language of the statute and its history make clear that, once all 
statutory prferequisites have been met, the Court cannot deny, uncondi- 
tionally, a request for an order granting inununity. Section 6005(a) directs 
that a district court "shall" issue the requested order compelling testimony, 
if the various statutory conditions are mot. The legislative history aD.so 
demonstrates an intent that the decision to request an order should not be 
questioned. See Senate Report at lli6; cf . Ullman v. United States , 350 U.S. 
J;22, li33-3ii. 

The statute contains a number of explicit requirements upon which this 
.Court's power to issue the order is predicated. We ass'jme that aU. of these 
requirements have been met, but the record is unclear on cne point. Section 
60O5(a) requires some evidence that the vri-tness will invoke his Fifth Amend- 
ment privilege. On June 3, 1973, a news story appearing in the Washington 
Post reported that Mr. Dean has indicated his willingness to testify before 
the Committee v/hether or .not he is granted imm-onity. The record should be 
clear on this point. 

II. The District Court Has Power to Impose Conditions Upon 
a Grant of Immunity So As to Reconcile and Further the Purposes of 
Section 600^ ajid to Safeguard the Integrity of Criminal Proceedin[; s. 

A. It is by no means clear that section 6005 would be constitutional if 
it required a court to issue orders compelling testimony at Congressional 
request without granting the court, at the same time, the power to ijupcse 
protective conditions where these were necessary. There is certainly language 
in Kilbourn v. Thompson , 103 U.S. l68, 19309li (l880) suggesting that Congress 



_/\]e have no indication as to whether l-lr. Magruder intends to claim 
his privilege as a basis for refusing to testify. He has testified 
at some length before the grand jury. 



411 



coiild nt>l, prcperly coj.:p;;l tcstliaony wheiv: to do so wou"id be "to int'-rfere \ilh 
a Ku.it pending in a court of co;.ipetent jurisdiction." Fortvuiaifly this 
Court ncsd not reach any such issue, for analysis of thr; purposes of, and 
precedent related to l6 U.3.C. 6005 suggest a statutsrj' intention to permit 
such judicial conditions. 

Section 6005 of Title l8 and its legislative history reflect three basic 
Congressional policies: providing the Congress with access to needed testi- 
mony; protecting, at the same time, the Fifth Amendment rights of witnesses; 
and avoiding any unnecessary interference with prosecution for crimes against 
the laws of the United States. VJhero the terms and context of a particular 
request for immunity unnecessarily impinge vpon one of the three basic purposes 
of the statute, we believe the Court has power to condition a grant of immunity 
on steps designed to reconcile those basic purposes. 

The language of the section is silent on the subject of such conditions, 
and our res'jarch into the legislative histoi'y has uncovered no consideration 
of the question; but precedent under closely related statutes suggests that 
such power exists. For example, in several instances courts dealing with 
immunity requests under related statutes have held that the order to testify 
under a grant of immunity can be conditioned upon compliance with other pro- 
cedures desifp:ied to serve the statutory purpose of assuring adequate protec- 

_/ 
tion of the witness's Constitutional rights. 



_/ The Court stated (at 193-191*): "The case baig one of a judj.cial 
nature, for which the power of the courts usually afford the only • 
remedy, it may v;ell be supposed that those powers were more appro- 
priate and more efficient in aid of such relief than the powers 
which belong to a body whose function is exclusively legislative." 

_/ See Bur£,ey v. United States , 1*66 F.2d 1059, 180-1081 (C.A. 9) (in 
connection with immunity grant under 18 U.S.C 25lii court may order 
government to allow witnesses to inspect and copy transcript of 
his testimony); In re I-Iinkoff , 3k9 F. Supp. iSk (L. R. I.) (court 
conditioned an order compelling testimony under l6 U.S.C 60C3 on 
the government's agreement to prepare a transcript of the testimony 
and provide it to the witness); In re Russo , 53 F.R.D. $(>h (C.D. Cal.) 
(court ordered provision of transcript in connection with grand 
jury testimony compelled under 18 U.S.C. 25lli) . 

-h- 



412 



E. There: ccn be no iKvabt th->t oric; of the i'j;iJt.''\s;.t?-l pui-poses of 
S action COQ$ ijas to avoid imnuni^on,': n'lil'l-y p''-''^^-''-^^ froi'i proseculion :o;o 
conviction so long as tlds vras urirecGSsary to Corigress' obtaining t)ie infor- 
mation needed for the proper discharge of its legislative responsibilities. 
Prior to enactment of the "use jjimiunity" statute under vjhich these orders 
are being requested, federal compelled-testimony statutes conferred "trans- 
actional immunity," shielding a witness completely against prosecution for 
any matter respecting which lie had given compelled testimony. That resul.t 
\\'a3 thought to be required by the decision of tlie Supreme Court in Ccunsolman 
V. Hitchcock , ll(2 U.S. 5U7. However, follovjinj the decision in Murp hy v. 
V.'aterfront Conmission , 378 U.S. 52, which dealt uj-th interjurisdictioiiil 
iirmiunity, it became apparent that it might be constitutional]/ permissible 
to compel testjraony witliout automatically imntmiy.ing the witness fron all 
prosecution, a proposition subsequently confiv^ned by the recent decision of 
the Supreme Cor.rt in Kasti ;;ar v. Uni ted States , IjOo U.S. h^-; upholding the 
Vcilidity of the legislation under which this Court is asked to act. 

Thus, a fundamental policy underlying the enactment of l8 U.S.C. 6001- 

6005 was a Congressional judgment that the ability to prosecute vitnesses 

on the basis of evidence v.'holly independent of their compelled testijr-.ony 

should be preserved. See Senate Repoi t, pp. 53-53. As Senator McCleUan, 

the principal sponsor of this legislation, advised the ftenato (Cong. Rec. 

S. 2638 (daily ed. , March 11, 1S;65)): 

If the underl^T-ng preoise of Counsol:,i£m — that there is no 
way to protect the witness from the derivative use of his 
compelled testimony - hag indeed been rejected, it seems 
I clear that grantijig irmunity from piccecution rather than 
I use of testijiiony is no longer constitutionally coripell.ed 
on any level, State or Federal. Giving iramiuiity where it 
is not necessary is giving an unnecessary gratuity to a 
crime, a step no sane society ought ever to take. 

C. The Ninth Circuit and the District Courts in Rliode Island and 

California found that they had the power to impose conditions designed to 

serve one of the three basic purposes of statutes very similar to l6 U.S.C 

6005: protecting rUfth Aiiendnent rights against \uinecessary risks associat'id 



413 



with a'l. .■.;•' C'i of a tiV'.nocrnpt. Vaxs Ccurl- .'!.•^:; the ar.alf.jjoas pov.er i,o i."ipcs.; 
condition.; designed to prei;erv»;, r.^ainst \\r.:'Occssary riiks ar.scc.lated Kith 
widespread publicity, the statutory purpc';jO or not taking, in Senator 
McClellan's words, "a step no s&jie society ought ever to taJce": "giving 
an unnecessJiry gratuity to a crime." Such conditions on any grant of the 
Select Coimnittee ' s request are essential to preserve the purposer- cf Congress 
in this case. In the absence of conditions restricting the publicity 
accorded statements compelled by this Court, it now appears likely that the 
testimony will be carried on nation-wide television, reaching into millions 
of homes. VJhJ-le it is impossible to judge at this tii.ie the precise jjnpact 
of this publicity on the conduct of the forthcoming cases, there is, at the 
least, a significant possibility that the Committee's prccoedirj^s will 
imperil t}ie governmont's ability to empanel an unbiased jury for the trial 
of any offenses charged. Cf. Delaney v. United St'ates , 199 F.2d 107 (C.A. 1). 

The proposed testin^ony would raise difficulties exceeding even the tra- 
ditional problems associated vrith pre-trial publicity, since what is expected 
is the dramatic, broadcast confessions of these witnesses, implicating 
ther.selvep .-ind others in a variety of criirAnal acts. This ccmpellsd, ii:crlr»'i.- 
nating testimony v/ould, of course, be inadmissible at trial against the wit- 
nesses. Cf. Miranda v. Arizona , 38U U.S. h3^- Its avajj.ability to prc'spec- 
tive jurors prior to trial might make itimpossible to provide a fair trial at 
all. See Rideau v. Louisiana , 373 U.S. 723. If the anticipated publicity is 
given to the testimony of these witnesses, "the risk that the jury /that nay 
be called upon to try them and others_7 will not, or cannot, fcllov; instruc- 
tions ^o disregard the extra-judicial confeosions7 is so great, and the 
consequences of failure so vital-tneiv that the practical and human limita- 
tions of the jury system cannot be ignored." Bruton v. United States , supra , 
391 U.S. at 135. 

At least in the absence of an express v/aiver by a witness of objections 
to pre-trial publicity ibwing from national television coverage, the result 
of ari unconditional giant of "use iim.iunity" in this matter, therefore, niay 
viell be the avjard of complete anniesty to these witnesses and all those Uio 



414 



20 ted in conrcrt wi 1.h the.n. This cctisccjueriCO wo^ld stand on its head t.he 
voi^ statute under whic'a Uie Corjnittco rr.al:e3 it3 request - a atatute 
intended Id elirdaiate the canplcte freedom froii criminal liability associated 
with "trcinsaction" immunity. The Coiirt need not assiune that CongresSj uhich 
said nothing to preclude tho ijuposition of judicial condition^, iiit ended to 
authorize a Cornniittee tc impose grave risks of b.arring all future prosecu- 
tion of the iriitness called. Certainly no such assumption is warranted when 
judicial conditions on the grant of irmiunity, limiting the ajaount of publicity 
that can be accorded the tostimony of the immunized vrltnesSj does not inter- 
fere wit-h any other of the basic purposes of the l-a.rjnity statute. The 
Select Committee remains free, as Congress intended, to receive the \n.tness' 

testj'nor.y and to malte full aiJ effective use of that testimony in the Icgis- 

_/ 
lative process. Nor are Die iritness' Fifth Anendjncnt rights in anj' v;ay 

abridged by restricting the publicity that can be given his statement. 

Conditions restricting pre-trial publicity vfill, in sum, reduce substantially 

the risk of "giving an unnecessary gratuity to a crime" without impinging 

significantly on Congress' other purposes in passing l8 U.S.C 6005. 



_/ See, in this regard, the Supreme Court's decision of May 29, 1973, 
in Doe v. McMillan, reported at I4I L.W. UT^?. 



-/- 



415 



'1. W.iollv iif/.irt fror,i 'he need lo iVoost pvolective cori.i-: ; i ,ins in 
order lo preserve: the objective? of tlie ''uf.L- iramunJcy" statutt; iLsalf, grsm. 
of thv! protective relief we request is consonant wit\\ long establisherl and 
vjell recognized principles of judicial power and rejponslbillty to preserve 
the integrity of criminal trials. "Judicial supervision of the administra- 
tion of criminal justice in the federal courts implies the duty of establish- 
ing and maintaining civilized standards of procedure and evidence." McNabb 
V. United States . 318 U.S. 332, 340; Jenk s v. United States . 353 U.S. 657; 
Hill, The Bill of Rifihts and The Supervisory Power , 69 Colum. L. Rev. 181, 
214. 

Speaking in the context of inflammatory pre-trial publicity, the Supreme 
Court and the courts of appeals have emphawized the absolute necessity for 
the exercise of these supervisory powers. The Supreme Court has described 
the right to a fair trial as "the most funrfamental of all freedoms" vhich 
"must be maintained at all co.-;ts" (Estes v. T fexas . 331 U.S. 532, 540-541), 
and has diiacted the trial courts to take all necessary action to "protect 
their processes from prejudicial outside interferences" which pre-trial 
publicity may inject into criminal proceedings. Sheopard v. Maxwell , 384 
U.S. 333, 363. Sec also ABA Standards Relating to Fair Trial and Tree Press . 
54 A. B.A.J. 347, 350. 

Moreover, while many of the cases speak of the necessity of protecting 

a defendant's ability to obtain a fair trial, the government has an equal 

_/ 
Interest in this worthy objective. As the court of appeals observed in 

United States v. Ti jerina , 412 F.2d 661, 666 (C.A. 10), certiorari denied,' 
396 U.S. 990, affirming the contempt conviction of two defendants who vio- 
lated an order against making public statements (412 F.2d at 666): 

The public has an overriding interest that justice 
be done in a controversy between the government and 
individuals and has the right to demand and expect 
'fair trials designed to end in just judgments.' 
Wade V. Hunter , 336 U.S. 684, 689; 69 S.Ct. 834, 837; 
93 L. Ed. 974; and Mares v. United States , 10 Cir., 
383 F.2d 805, 808 and 809. This objective may be 
thwarted unless an order against extrajudicial 
statements appl les to all parties to .-i controversy. 
The concept of a fair trial applies both to the 
prosecution and the defense. 



_/ Under Article III, Section 2 of the Constitution, there is established 
a general policy that the "Trial of all Crimes, except in cases of 
Impeachment, shall be by Jury" and the government's right to insist 
on a trial by jury -- a fair and impartial jury, of course -- is 
confirmed by Rule 23(a), Fed. R. Crim. P. See Singe r v. United 
States, 380 U.S. 24. 



8 - 



416 



?! icy- V. Tex an , .' i^ or'4 , i >■ vvrLi cui." My ii.'lovo.'i. ^n the i)i"( .: cnnic:; . 

In Estc s, the Sr.pr'i:m<.- Court inva' idatpd a Ltcte crl':!inal convicl'ou becfliif.e 
the pmcecdlnas had been televised. The Coori. fopc i t icnlly ru]r;r that there 
was no First Amendment irapediirtnt to excliision of rfdio and television 
broadcasters where it is necessary to preserve the integrity of official 
proceedings. "While mnximutn freedom raust be allowed the press in carrying 
on li-t.s_/ important function in a democratic society its exercise must necet^- 
sarily be subject to the maintenance of absolute fairness in the judicial 
process." 381 U.S. at 539. 

The Supreme Court echoed this same theme in Sheppard v. Max\.'cll , supro , 

where the trial court was held to have erred in concluding that "it lacked 

power to control the publicity about the trial." "384 U.S. at 357. The 

Court ruled that trial courts have an obligation to usp imagination and 

discretion in regulating press coverage (384 U.S. at 358), in preventing 

witnesses from discus.sing their testimony v/ith the press (384 U.S. ot 359) 

and in controlling "the release of leads" by the "witnesses, and the counsel 

for both sides" ( Ibid ) . The Court sumir.ar Ized its approach as follows (384 

U.S. at 363): 

But we must remembjr that reversals are but palliatives: 
the cure lies in those remedial mea.sures that vill 
prevent the prejudice at its inception. The courts 
must take such steps by rule and regulation thet will 
protect their processes from prejud'cial outside 
interference. 

In the present matter, the Senate Committee, by invoking this Court '.■; 
jurisdiction and seeking the exercise of the judicial process to confer 
testimonial immunity, clearly has subjected \tsolA Id .•>c«r( ^..-mce ol xnuson- 
'able conditions designed to acconmodaiL- the fundamental cons ti t\itional 
Interests at stake. Cf. Krlppendorf v. Hyde , 110 U.S. 276, 283. The pro- 
posed public testimony of the witnesses Dean and Magruder on nationwide 
television would in all likelihood present a clear and present danger (1) to 
£he ability of other persons whom they may implicate to obtain a fair trial, 
(2) to the validity of any indictments which are handed up during the period. 



/ Compare De'lan-.y v. Unitpo' ftate s, 199 F.2d 107, 111-117 (C.A. 1) 

and Silverthornu v. United States , 400 K.2d 627, 633 (C.A. 10). 



- 9 



417 



and (3; to Llio r.'bLU^y oi" Li;^- f.overr .. nt - _■ pri'f;i...ii"c- t.!icsc ( -.r r iciilar •.-.ii.- 
nesseji who may bt riaking co'itesslons cm ..a jionwio'e teievislc; i.hjcli siicn;).d 
not be used asc^insC them at trial. Sc-r ''i deau v. Louisiana , 373 U.S. 1?A<. 

While, ordln.irily, techniques whii-h "induce continuance, change of 
venue, sequestration of the jurors, sequestration of witnesses, voir dire of 
prospective Jurors and cautionary instructions" may sufficr^ to avoid the 
effects of pre-trial publicity, "in many cases, perticulsrly those of a 
highly sensational nature, the use of those traditional procedures has not 
proven sufficient to assure the defendant a fair trial. Moreover, some of 
them will involve additional complications such as, in the case cf a pro- 
tracted continuance, prejudice to the right of a defendant to a speedy trial 
and the interest of the public in the prompt administration of justice." 
Repor t of the Judicial Confer en ce Committee on the Operation of the Jur y 
System on the "Free Press Fair Trial" Issue . 45 F.R.D. 391, 413. 

The Court here has the opportunity and, ^e respectfully subnit, the 
respon';ibility to take reasonable preventive action essential to the public 
Interest in insuring a fair and prompt disposition of most sericis criminal 
charges, particularly since such action will at the same time vindicate the 
legitimate Congressional interest in obtaining information essential to its 
legislative function. 

It is true that the imposition of protective conditions to guard against 
prejudicial publicity concerning the compelled testimony of witnesses Dean 
and Magruder v;ill restrict the latitude of the Committee in publicizing some 
of its activities. But it is the Committee which has asked to use the 
Court's process in this case and it thereby necessarily subjects itself to 
'reasonable conditions under long-established principles. The recent 
decision of the Supreme Court in Doe v. McMillan , No. 71-6356, 41 U.S. L.W. 
4752 (decided May 29, 1973), lays to rest doubts about the constitutional 
propriety of judicial action to block publication of Congressional reports 



_/ It is fundamental that a federal court has both the inherent power 
and the positive "duty to pirevent its process from being abused to 
the injury of third persons"; "* * * the equitable powers of courts 
of law over their own process to prevent abuse, oppression, and 
injustice, are inherent and equally extensive and efficitat, as is 
also their power to protect their own jurisdiction * * *." 
Krippendorf v. Hyde , 110 U.S. 276, 283. This inherent power is 
now codified in the All Writs Act, 28 U.S.C. 1651, which authorizes 
the federal courts to "issue all vnrits necessary or appropriate in 
aid of their respective jurisdictions and agreeable to the usages 
and principles of law." 



- 10 



418 



pi: i .'lOL; vil I ;•■; bcy.md ci;;.- reeds, of i.h ■ J e^isl.-;r . v^ pioctss. Ttl NcKi ) ) ■ :», 
H}iere even injut.cuive r-ilief wai so-.j;?.U'-, the Supi or.e Court lietciminad that. 
neither the Speccli and Debate Clau.e, nor the pri.icl.ple oi cc-paratioii of 
powers, nor the doctrine of official imtnunity barred this Court from prevent- 
ing a Congressional cctnmittee. Its staff, and othtr officials from publishing 
certain information that Congress had an interest In developing as part of 
the legislative process but did not have a protected interest in disseminating 
to the public. In speaking of its own history of involvenif:nt in this area, 
the Supreme Court noted (Al U.S.L.W. at 4756 n.l2): 

While an inquiry such as is involved in the present 
case, because it involves tv70 coordinate branches of 
Government, must necessarily have separation of 
powers i.nplicatior.s , the sepatation of pov;ers doctrine 
has not previously prevented this Court from reviewing 
the acts of Congr^>ss, sea, e^.f^. , Kll bou rn v. Thompr;on , 
supra (103 U.S. 163); Dombrows kl v. Ea£tU- ;nd, supr^; 
(387 U.S. 82); even vjhen tho Frecutivo Branch is also 
involved, see, e. ^. , United States v. Brewster , supra 
(408 U.S. 501); Gr avel v. Un ited Stntes , supra (408 
U.S. 606). 

See also Powell v. McCorni .:i ck , 395 U.S. 486. 

III. The Conditions Which the Court Shoulil Consider Imposing . 

In view of the foregoing analysis, wc belicvr it would be sppropriste 
for the Court to impose reasonable conditions on the orders granting immunity 
.in these cases -- conditions designed to accommodate the Committee's need 
for the testimony of these witnesses with the legislative policy underlying 
the "use immunity" statute, the public interest in criminal Justice, and the' 
rights of potential defendants. Among the alternatives that have either 
been approved by the Supreme Court or adopted by other federal courts in 
somewhat similar contexts are the following: 

1. Requiring, as In the case of criminal trials, the exclusion of 
the broadcast media (radio and television), when an immunized witness is 
required to furnish self-incriminating testimony^ at least in the absence 
of an express waiver by the witness and his counsel of any objection to such 
potentially prejudicial coverage. _ ' 



- 11 



419 



2. Mmitir,^: l'...-; grinr c' a.'i ordcv diVcjt in^ lIa'. w.'tnef.s t" L.:..li.f/ 
bi'fore the CoiT.nittee l.r Cestii;i().-.y Rivcti in executive .?c'.r-icn. 

3. Conditioning the grant of the Co.nnii t tee 's application on the 
.issuran.-e that it will receive the testimony only in executive sessioa and 
i;ill not release the transcript of the testimony or any summary of it pend- 
ing completion of the Coniniittee ' s investigation. 

A. Supplementing one or more of' the above by directing the witnesses 
not to discuss or comment upon their testimony with members of the press or 

■3 

with any persons other than their counsel, members of the Committee and its 
staff, and prosecuting officers of the Department of Justice. 

5. Supplementing one or more of the above by conditioning the 
grant of immunity on an understanding that the Committee and its staff will 
not make publii? statements about the witnesses' testimony pending completion 
of the Com.Tiittee 's investigation. 

This listing of possible conditions is not intended to be exhaustive; 
nor do we suggest that each of these conditions would be appropriate in this 
case. We do contend that the plain purposes of IS U.S.C. 6005 would be 
furthered by some such conditions; that the judicial authority found in the 
immunity statute itself i's supplemented by the Supreme Court's decisions in 
cases like Doe v. McMilla n , supra , Dombrowski v. Eastland , s upra , and Powell 
V. McCormack , supra , establishing the Court's power to require such protective 
action; and, finally, that under the decisions in Sheppard and EsCes the 
Court may have an obligation to tailor some form of order that will protect 
the integrity of the criminal justice process. As we have indicated above, 
from the standpoint of the integrity of grand jury proceedings and the avail- 
; ability and fairness of subsequent trials, the proper condition might require 
the use of executive sessions. But, in light of the decision of the Select 
Senate Committee to push forward with public hearings, the most appropriate 



12 - 



420 



rcrid j .. J >... Diilti St..-; io be tr.c i.::c.!Miii <.•;,, -"ij-iii^ Lhi- s.' ing o£ cr.i;i lied, 

ECif-lricr ir.inatinj; t ; .'i L Inon y , of 'Ivc rr tecordcd radio, te]evit;ic .,, >,nd 

_/ 
other CO- crsj-.e no'. |<irr.itted r.c •:• crlMxiiiil trial. 

Respectfully sub^nitted. 



ARCHIBALD COX 
Specj .- il Prosecuto r, 

Wafcr j;at c; Special I'ro secutlo p Force , 
Dapnrt i - -n t o f Ju:, tic f! , 
1425 K _:• trcet. KM . , 
Wash inp, ton, D.C. 20005 



JUNE 6, 1973. 



_/ This Is much the position adopted by tlie American Bar Associstion 
In 1952 and 195A. See 77 ABA Reports 429. 



13 - 



421 



WATERGA I h SPECIAI. i'kOSrCU i . .-X FORCE 
■ UnilC(i States [)cp '; imcnt of .fuslict: 
1425 K Street. \AV. 
Washington, D.C. 20005 



June 4, 1973 



Honorable Sani J. Ervin 

Chairinan 

Select CoiriRiittee on Presidential 

Campaign Activities 
United State's Senate 
VJashington, D. C. . 

Dear Senator Ervin: 

I am v;riting you as ChaitTia-n of the Select Committee 
on Presidential Campaie^n Activities to urge the national 
importance of at least temporariDy suspencing public 
hearings. The continuation of hearings at this time v.'ould 
create grave danger that the full" facts about the VJatergatc 
case and related matters V7ill never come to light, and that 
many of those v.-ho ai'e guilty of serious wrongdoing will 
never be brought to Justice. 

I am not suggesting that the hearings now be called . 
off. I am urging that the Special Prosecutor be given 
time to assess this enormously complex case and to advise 
the Select Committee about the consequences of the appear- 
ance of particular witnesses at televised hearings. 



Today, we all face a new situation -- which requires 
nev,' thought. V/hen the Select Committee began its hearings. 
the Executive Branch had not undertaken an exhaustive 
investigation with adequate resources. Now a Special 
Prosecutor has been given full authority, the assurance of 
adequate resources, and absolute independence iri investiga- 
ting and prosecuting not only the Watergate affair but also 
all other offenses during the 197^ Camipaign and all 
allegations against the President, memiters of the White 
House staff, and Presidential appointees. I have pledged 
myself to pursue every avenue of investigation wherever 
it leads. 



422 



- 2 - 



The creation of a Special Prosecutor was largely the 
work of the Senate, including the Select.. Cominittee. The 
Select Committee and I have the same goals: to get at the 
truth whatever it may be, to have the truth brought out in 
public fairly and responsibly, and to restore public con- 
fidence in the integrity and capacity of our governmental 
institutions. I have the additional duty of prosecuting 
the wrongdoers. 

II 

My reasons for believing that a suspension of the 
hearings will promote our mutual goals fall into four groups: 

1. Immediate public hearings v^ill impede investigation . 
They make it impossible to get at the truth I'rcm bottom to 
top . ' ' 

(a) V/itnesses often come forward with testimony because" 
of fear of heavy prison sentences. Additional publicity 
through televised hearings will relieve this fear by 
increasing the chance that pre-trial publicity will fore- 
stall successful prosecution, and this will, in turn, reduce 
the chance of getting truthful testimony. The pressure en 
witnesses to tell the truth would also be diminished by the 
other impediments to successful prosecution (discussed 
below) that may result from irrunediate continuation of hearings. 

(b) Premature disclosure of testimony and other leads 
in the possession of investigators aids anyone disposed to 
fabricate explanations, and it increases the difficulty of 
getting truthful information from potential witnesses. 

(c) Witnesses torn between conscience, on the one 
hand, and awe of office or loyalty to superiors, on the 
other, are likely to be more willing to give information 
to the Special Prosecutor than to make full disclosure in 
front of television cameras. 



(d) I have been assured of access to all documents 
files and other papers in the Executive Branch. This 
assurance, plus the determination to publicize any with- 
holding, gives my office great power to develop evidence 
of this character. 



423 



- 3 - 



2 . Publ ic hearings prior to the further d evelopment 
of the investigation will increase the rlsK that maj or 
guilty parties will go unpunisl:ed. Quite possibly, all 
would go free . 

Each of the points made above supports this proposition. 
There are tv.'o additional, important considerations: (1) the 
danger that pre-trial publicity will prevent fair trials 
from ever being held; (2) the risk that the Committee's 
granting imiriunity to major potential defendants will bar 
successful prosecution. Prosecution of a Senate vjitness 
may be impossible if he testifies under use immunity before 
a record can be made by the Special Prosecutor demonstrating 
that the case was developed with9ut leads from the immunized 
testimony. 

There is m^uch more to this question than v/hether one or 
two people go to jail. Confidence in our institutions is 
at stake. We must find a way both to expose the truth and 
to punish the wrongdoers. Failure to convict persons in 
high office shown guilty of crime -- even as a consequence 
of Senate hearings -- could well shatter public confidence 
in our governmental institutions, particularly confidence 
in our system of justice. At a tine when the Nation's 
concern about crime has focused attention on our system of 
justice, it would be discriminatory and therefore demoraliz- 
ing for the powerful to go scot-free while ordinary citizens 
are sentenced to prison. 

3. Both the Senate Committee and the Specia l Prosecutor 
should pr"e s"erve, for the present, freedom to brln p, out at 
one tim e and in a coir.prenensive presenta'cion all the lac^s 
concerning the Presidenx, of the United States . 

Allegations have been made concerning 'the implication 
of the President of the United States. It seems unlikely 
that all the facts are known and all the available evidence 
has been assembled. There is grave danger of confusion if 
bits and pieces emerge from day to day or week to week. 
This method of disclosure also makes it more difficult to 
develop additional information. 



424 



_ 2| - 



I do not now kjiov; what facts will develop or the best 
place ^ time or procedure for a comprehensive presentation. 
Perh.'ipc it is before the Select Committee. Quite possibly 
it v/ill turn out that no such pi-esentation can be made, aijd 
that the Senate should later resume its hearings as planned. 
My only point is that, for the present, this option should 
be preserved. 

4. We should also remember that innocent persons can 
be questioned and exonerated v/ithin the confines of grand 
Jury secrecy while even the most. careful public hearing 
may injure the innocent. ' 

III 

• 

I must emphasize that I am not requesting -- and have 
never requested -- the Select Committee immediately to 
call off all hearings. My only request is that the Committee 
having forced a broacl, i/igorous and independent investigation' 
--now enable the Spco-lal Prosecutor to pursue his responsi- 
bilities unimpeded until an appropriate time for reviev;ing 
the situation together and deciding in cooperation how 
next to proceed. 

It is very difficult to specify the exact amount of 
time needed before discussing the problem again with the 
Select Committee. Three months seems reasonable, but I 
v;ould be grateful for any significant period. The mere 
time I can have, the more accurately I can later advise 
the Select Committee c.n the likely effect of resumption of 
the hearings upon the full development of information and the 
best v.'ay to assure the possibility of fair trials. 1 would 
expect, of course, to keep the Select Committee advised of 
the general progress of our v;ork. 

Ii>Balize that this is a very trying request to put to 
the Select Coirjriittee because granting it. might give rise 
to unwarranted charges that the Committee v/as delayed or 
diverted in bringing out the truth. It is an even more 
difficult request for me to make because there will be 
false charges that I am attempting to cover up the truth. 



425 



- 5 - 



Only the conviction that the above points have critical 
importance induces me to write this letter -- and to hope 
that upon full consideration the Select Coimnittee will 
grant my request. 

If you think it useful, I would value the opportunity 
to explore these points with the. Select Committee in 
Executive Session in more detail. 



■ • Sincerely, 

ARCHIBALD COX 
Special Prosecutor 



Copy to Senator Edward J, Gurney 

Senator Hov/ard H. Baker, Jr. 
Senator Herman E. Talmadge 
Senator Daniel Inouye 
Senator Joseph M. Montoya 
Senator Lowell P. Weicker, Jr, 



Copy also to members of Senate Judiciary Committee 



426 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 



UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



r 



FIIi^ 



JUN 7 1973 



CLjblKK 



Misc. No. 70-73 



REPLY MFJ^ORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 
APPLICATIONS FOR ORDERS CONFERRING IMMUNITY UPON AND COMPELLING 
TESTIMONY AND PRODUCTION OF INFORl^lATION. 



I . INTRODUCTION 

The Special Prosecutor seeks to persuade this Court not 
only to violate the clear terms of the immunity statute under 
consideration (18 U.S.C. s § 6002, 6005), but also to ignore 
the Constitutional doctrine of separation of powers. His 
extraordinary request should be denied. 

The Special Prosecutor admits as he must that the 

immunity statute gives the Court no power to deny a Select 
Committee request for immunity that is attended by the 
required procedural regularities. He contends, however, that 
this Court has power to impose severe conditions to the 
immunity grant that would impinge upon basic Committee 
prerogatives and perhaps debilitate its effectiveness. 

If the Special Prosecutor's position were accepted, the 
testimony of critically important witnesses would be excluded 
from public view. It was, however, the judgement of a unanimous 
Senate and a unanimous Select Committee that, at this time of 
crisis in government, there is a pressing need not only to 
explore remedial legislation, but also for full public scrutiny 
of all the facts relating to the Watergate scandal. There can 
be no doubt that a basic function of Congressional hearings is 
to inform the populace of corruption in government. As the 



427 



-2- 



Supreme Court stated in Watkins v. United States , 354 U.S. 178, 

200 (1957): 

"/"There is a/ power of the Congress 
to inquire into and publicize corrup- 
tion, maladministration or inefficiency 
in agencies of the Government. That 
was the only kind of activity described 
by Woodrow Wilson in Congressional 
Government when he wrote: 'The inform- 
ing function of Congress should be 
preferred even to its legislative func- 
tion. ' Id,, at 303. From the earliest 
times in its history, the Congress 
has assiduously performed an ' informing 
function' of this nature."-^ (emphaa\5 added) . 

Indeed, the informing process is a necessary concomitant to 
the enactment of legislation; it is a well recognized fact of the 
legislative process that legislation lacking popular support 
rarely survives. 

It is the Select Committee's view that the Special 
Prosecutor's bold attempt to employ the immunity statute to 
impose on this Committee his own views as to the proper conduct 
of Congressional hearings flies in the face of the statutory 
language, does violence to its legislative history, is not 
supported by the relevant case law, and raises serious Constitu- 
tional problems of separation of powers that this Court has a 
duty to avoid. Moreover, this Committee rejects the Special 
Prosecutor's dire predictions that its proceedings will prevent 



1. President Wilson's discussion continued with the following 

significant observation: 

"The argument is not only that discussed 
and interrogated administration is the 
only pure and efficient administration, 
but, more than that, that the only really 
self-governing people is that people 
which discusses and interrogates its ad- 
ministration. ., . It would be hard to con- 
ceive of there being too much talk about 
the practical concerns... of government." 
Congressional Government (Boston: 1885). 
303-304. 



428 



-3- 



the conviction of guilty parties. To the contrary, we are 
confident that this Court, by granting appropriate continuances 
and following the other procedures suggested in Delaney v . 
United States , 199 F.2d 107 (1st Cir. 1952), and its progeny, 
can devise means by which the right of fair trial for all 
concerned can be secured. 



429 

-4- 
II. THE STATUTORY LANGUAGE 

Section 6005 is unambiguous. It expressly provides that, 
where the procedural prerequisites are met, the Court "shall 
issue" the immunity order. Nov;here in the statute is there the 
faintest suggestion that the Court may impose conditions upon 
the grant of the order. The Special Prosecutor himself concedes 
that Section 6005 offers no support to his position. The 
statute does impose one qualification on the issuance of the 
order. The Attorney General (as he has done in the cases 
of John Dean and Jeb Magruder) can require the Court to defer 
the issuance of the order up to twenty days from the date 
the request v;as made. It is clear from the statutory language 
that this was the only qualification Congress intended and 
the explicit recognition of this qualification precludes the 
a,ppendage of any qualifications on the order not expressly 
allov^ed by the statute. 

V/hen this statute was enacted in 1970, Congress v/as 
quite aware that Committee hearings could v/ell be conducted 
before television cameras and the writing press, and thus be 
widely publicized. Surely, if Congress had intended that 
immunity grants connected with hearings of extreme public 
interest be made conditional on restricting or prohibiting 
televised hearings, then it would have so provided in the 
statute. 



430 

-5- 

III. THE LEGISLATIVE HISTORY 

That the Court, under sections 6002 and 6005, has no 
power to condition a grant of immunity is also completely 
clear from the statute's legislative history. The Special 
Prosecutor states that he finds no support for his unique 
theory in the legislative history, but he neglects to inform 
that, far from being silent on the issue, the legislative 
history plainly indicates that conditional grants are linauthor- 
ized. 

The working papers of the National Commission on Reform 
of Federal Criminal Laws (whose draft statute formed the model 
for the statute under consideration) state, at l44o, that the 
Congressional imjnunity statute v;as drafted to avert "problems 
both of constitutionality and of insufficiency of information 
for meaningful judicial scrutiny .... by making the court's 

function a vfeak and paltry thing ministerial, not 

discretionary in nature. " (emphasis added) We fail to 
perceive hov; a statute, which makes the Court's fimction 
"a weak and paltry thing," permits the Special Prosecutor to 
divine some extraordinary power of the Court to control the 
internal procedures of a Select Committee established by a 
coordinate branch of government. 

It appears to be the Special Prosecutor's notion that, 
because the Select Committee under the statute must come to 
the Court for the immunity order, the Court somehow has 
Jurisdiction to impose conditions on the conduct of the 
Coimnittee's business. The Working Papers (at p. l4o8) belie 
such a conclusion. It is clear that Congress intended to 
remove the Court from all determinations (excepting those 
regarding procedural regularity) in the Congressional Immunity 
context: 



431 



-6- 



"An immunity grant is not a matter of 
right or wrong, but a discretionary 
governmental act. The Federal district 
court may of course scrutinize the 
record to make certain that the congressional 
request for an immunity order is 
jurisdictionally and procedurally well 
founded, and that the Attorney General 
has been notified. But if the Attorney 
General should oppose the congressional 
request for an immunity order solely because 
he feels it is "unvjise," the court would 
have no constitutional or~ other le^al basis 
f or siding vjith t.he Congres s, siding" vfiih 
The Attorney General, or maYxng it s ov.'n 
calculation o"i' i,ne o.e.'Tree of puDlic need 
for the Ini'orrar.Lion, baTanced apainsr 
the loss of the nossiole oppor tunity to 
prosecute a possible crirrilnE lT" VJorking 
Papers at 14177 (emphasis added) 

The V/orking Papers go on to make plain that the stat\ite, by 

eliminating any discretion on the Court's part, V7as devised 

to obviate "a conflict between congressional and executive 

policy concerning granting immunity to a congressional v;itness 

/that/ the Court vrould have no basis under our separation 

of powers system for deciding." Patently the Special 

Prosecutor's recommendations vrauld, contrary to the legislative 

purpose, place the Court "squarely in the middle" "of an 

open conflict between the Attorney General /through his 

Special Prosecutor/ and the Congress on an issue of policy." 

See Working Papers at pp. l4o8-9.* 



*It is worthy of note that Congress, in 1970^ basically 

expanded rather than restricted its immunity power since 

previous to that time it could obtain immaoity only in 

national security cases. See Working Papers at l4o6. 

The immunity prerogatives of the Attorney General, however, 

were diminished being reduced from transactional to use 

immunity. 



432 



-7- 



IV. THE CASE LAW 

Decisional authority also supports the Conmittee's 
contentions regarding lack of authority to condition an 
immunity grant. 

While the Special Prosecutor (at p. 3) acknowledges the 
Supreme Court's decision in Ullmamv. United States. 350 U.S. 
422 (1956) (Frankfurter, J.) he fails to deal with the problems 
its holding creates for his legal theory. In Ullmam a potential 
witness sought to have the Court reject a request for an immunity 
order put forth by the Attorney General. Although the Ullmann 
statute required the immunity order to be in the "public interest, 
the Court (per Justice Frankfurter) held that the judicial 
branch had no discretion to deny the order if the procedural 
prerequisites were met. Quoting District Judge Weinfeld, the 
Court stated that an interpretation giving the Court discretion 
would "raise a serious constitutional question under the doctrine 
of separation of powers." Id. at 433. 



1. As the National Commission's Working Papers (p. 1418-9) make 
clear, Ullmann holds that a district court is "simply to certify" 
that the statutory requirements have been met. The court "is 
not to exercise any independent judgement on the merits of grant- 
ing immunity." Under the present statute, courts should "continu 
to view their role here as being solely ministerial — i.e. ; ser- 
vice as a recording agency. This approach was outlined in the 

leading case of Ullmannv. United States, 350 U.S. 422 (1956) " 

Id . at 1435. 

The National Commission, in fact, wondered whether the then 
proposed immunity statute should allow any role for the Court at 
all: it concluded that a deletion of the requirement of a 
congressional application to the Court "would not sacrifice any 
vital interest," but " the retention of the requirement is 
harmless as long as district courts respect the Ullmam principle. 
Id, at 1442. 



433 



-8- 



The Special Prosecutor's interpretation of the instant stat- 

1 
ute, which was carefully drawn with Ullmam in mind, would allow 

a Court discretion to place its conditions on the internal 

workings of a legislative committee. We submit that, after, 

Ullmann , the Special Prosecutor's interpretation is indefensible. 

Oddly enough, the Special Prosecutor offers (pp. 6, 9) only 
casual reference to Delaney v. United States , 199 F.2d 107. 
(1st Cir. 1952), the leading case involving pretrial publicity 
provoked by a congressional hearings. After Delaney was indicted 
on matters relating to the administration of the Internal 
Revenue laws, he was subjected to adverse publicity by hearings 
dealing with tax matters conducted by the so-called King sub- 
committee. The Circuit Court reversed Delaney 's conviction 
because of the District Court's failure to grant such a continu- 
ance, but noted that this indictment could still stand and that, 
with an appropriate continuance, Delaney could have received a 
fair trial. The Court stated further: 

"We mean to imply no criticism of the 
King Committee. We have no doubt that 
the Committee acted lawfully, within 
the constitutional powers of Congress 
duly delegated to it. It was for the 
Committee to decide whether consider- 
ations of public interest demanded at 
that time a full dress public investi - 
gation / of Delaney./" Id . at 114. 
(emphasis supplied) 

The Court emphasized that the Delaney case involved an 

individual already under indictment. in a statement that portend^ 

the present situation, the Court said: 

"We limit our discussion to the case 
before us, and do not stop to consider 
what would be the effect of a public 
legislative hearing, causing damaging 
publicity relating to a public official 
not then under indictment. Such a situation 



1. See , p. 7 , supra , note l 



34-966 O - 74 - Dl. 1 - 29 



434 



-9- 



may present important differences from 
the instant case. In such a situation 
the investigative function of Congress 
has its greatest utility : Congress is 
informing itself so that it may take 
appropriate legislative action; it is 
informing the Executive so that exist- 
ing laws may be enforced; and it is 
informing the public so that democratic 
processes may be brought to bear to 
correct any disclosed executive laxity . 
Also, if as a result of such legislative 
hearing an indictment is eventually pro- 
cured against the public official, then 
in the normal case there would be a much 
greater lapse of time between the publicity 
accompanying the public hearing and the 
trial of the subsequently indicted official 
than would be the case if the legislative 
hearing where held while the accused is 
awaiting trial on a pending indictment." 
Id . at 115. (emphasis added.) 

The language of Delaney provides compelling support for the 
Select Committee's present hearing; indeed it is our viev; that 
we would be unpardonably remiss if, in this time of national 
emergency, we did not push forward to full revelation of the 
facts. We also note, in this regard, that further indictments 
in the Watergate Case are not expected for three months and that 
consequently trial must be six months to a year away, thus 
minimizing the effect of pretrial publicity at this time. 
The cases that follow Delaney support its reasoning. 
E.g. , United States v. Rosenberg , 200 F 2d 666 (2d Cir, 1952) 
(Swan, C.J.); United States v. Flynn , 216 F2d 357, 375(2d Cir. 
1957) (Harlan, J.,) where the court also noted that there was no 
proof " as to the extent to which already existing public 
opinion... was heightened by any of the activities of 
Government officials and agencies of which complaint is made." 
( emphasis added); in this regard, it would appear most un- 
likely that public information would be reduced if the Select 
Committee's hearings were placed in Executive Session or other- 



435 



-10- 



wise interferred with by this Court. Indeed, it is more reason- 
able to believe that public speculation, as opposed to infor med 
opinion , would increase. Beck v. United States , 298 F2d 622, 
628 (9th Cir. 1962). In the recent case of Silverthorne v. 
united states , 400 F 2d 627, 633-4 (9th Cir. 1968) the Court 

said: 

"The Senate investigation was, among 
other things, initiated for the pur- 
pose of informing the Executive so 
that existing laws may be enforced: 
In this respect the Senate Committee 
and the federal grand jury are 
associa tes in exposing criminal activity 
and moving tov/ards its curtailment. 
What illegality the Senate Committee 
uncovers cannot become the forbidden 
fruit of the grand jury's consideration 
merely because in the process of un- 
covering, prejudice to the perpetrator 
may accrue." (emphasis added). 

In his concurring opinion in Hutcheson v. United State t-, 
369 U.S. 599 (1962}'- Justice Harlan observed: ~ 

" . . ./ s7urely a congressional committee 
which is engaged in a legitimate legis- 
lative investigation need not grind to a 
halt whenever responses to its inquiries" 
might potentially be harmful to a witness 
in some distinct proceeding. . .or w hen 
crime or v.'rong doing is disclosed. Mc G rain 
v. Daugherty , 273 U.S. 135,179-180." 369 
U.S. at 618 (emphasis added). 

* * * 

"Nor can it be argues that the mere pendency 
of the state indictment ipso facto constitution- 



1. This case, in which the witness before the Congressional 
Coirjnittee v;as already under indictment in a state court, was 
argued (and won) for the government by Solicitor General Cox. 



436 



-11- 



ally closed this avenue of interrogation 
to the /~Congressional7 Conmittee." Id . 
at 613. 

Finally, see Hearst v. Black , 87 F 2d 68, 71-72 (D.C, 

Cir. 1936): 



"If a court could say to the Congress that 
it could use or could not use information 
in its possession, the independence of the 
Legislature would be destroyed and the 
constitutional separation of the powers 
of government invaded. Nothing is better 
settled than that each of the three great 
departments of government shall be inde- 
pendent and not subject to be controlled 
directly or indirectly by either of the 
others." (Emphasis added). 1 

Cf. Mississippi v. Johnson , 4 Wall, 475 (1886). 



1. We suggest to the Court that our Committee, as it has already, 
will take all appropriate steps to insure that ours is a digni- 
fied hearing that does not unduly prejudice those who may 
be eventually indicted. We submit that, because we are a 
committee of a separate branch of government, the responsibility 
for determining how we run our business rests with us rather 
than the Special Prosecutor. In his only request to the Committed 
the Special Prosecutor asked that the hearings be recessed. He 
did not recommend any of the conditions he now asks this Court 
to impose on the SelectCommittee. A copy of the Committee's 
resolution and rules is appended to this memorandum. 



437 



-12- 



The cases and materials upon which the Special Prosecutor 
chooses to rely are, for the most part, irrelevant and, in 
any event, totally \inpersuasive. 

The references (pp. ^,5) to cases in which courts have 
ordered the Department of Justice Attorneys to allow 
witnesses to copy and inspect transcripts of their testimony 
are inapplicable. Such cases did not confront separation of. 
powers problems. 

The Special Prosecutor's reference (pp. 8-10) to 
Sheppard v. Maxwell , 284 U.S. 333 (1966), and related cases, 
and the ABA Standards Relating to Fair Trial and Free Press, 
ignores several important facts. First, all of these 
authorities must be read in the context of the doctrine of 
separation of powers. That a court should' regulate its 
own proceeding, (as proclaimed in Sheppard ) does not mean 
that it has power to regiilate proceedings before a coordinate 
branch of government. The most the Sheppard case would 
suggest is that a criminal trial be postponed because of 
a Congressional hearing; in no way can a pov:er in the court 
to regulate a Congressional proceeding be squeezed out of its 
language .i/ 



T7 In Sheppard , ev"en after massive pretrial publicity by nev.'s 
media explicitly designed to stir up passion, the indictment 
was not dismissed. Rather, the trial court was held in error 
because it did not grant a change of venue, or continuance, or 
use other judicial devices ( e.g. , extra preeraptory challenges, 
a careful voir dire of the jurors) to assure a fair trial. 
Surely the Special Prosecutor is not arguing that one who 
commits a heinous crime must go free because of the resulting 

pretrial publicity that a Sirhan Sirhan or Charles Kanson 

may not have a fair trial because of the notoriety resulting 
from their acts. Both such individuals received much 
publicity; they still received a fair trial and their convictions 
withstood attack. As noted above, we reject any notion that 
this Court cannot secure a fair trial for those involved after 
the Select Committee's hearings. 



438 



-13- 



The Special Prosecutor's reference to the ABA Standards 

Relating to Fair Trial and Free Press (Approved Draft, 

March, I968) is misleading. None of the recommendations of the 

Standards are designed to regulate Congressional committee 

hearings, but were solely intended to apply to court proceedings. 

For example, although Section 2,1 of the Standards recommends 

that lav; enforcement officials adopt certain internal regulations 

to curb pretrial publicity. Section 2.1 adds a significant 

exception: 

"Nothing in this rule precludes any 
law enforcement officer . . . from 
participating in any legislative, 
administrative, or investigative 
hearing . . . . " 

Other authorities relied on by the Special Prosecutor are 

equally unpersuasive. Doe v. McMillan , U.S. 

(May 29, 1973) (No. 71-6356) (see Mem. pp. 10-12) only holds 

that in certain limited circumstances involving the privacy 

of small children there may be a justiciable cause of action 

against the Government Printing Office printer and the 

Superintendent of Documents that is not prohibited by the 

Speech or Debate Clause of the Constitution. To this cause 

of action the defendants could raise defenses, "constitutional 

or otherwise." Slip Opinion at 19. However, the fiercely 

divided Court did appear to be unanimous that the Separation 

of Powers doctrine protects the Congressional power to hold 

public hearings. Dombrowski v. Eastland , 387 U.S. 82, 85 (I967) 

and Powell v. McCormack , 395 U.S. 486 are factually unique 

cases with holdings not relevant to the present matter. 

(See Mem. 11-12)2/ 



£/ Certain citations by the Special Prosecutor are, at best, 
mystifying. He appears (p. 10) to find some solace in the 
All Writs Act but surely would not contend that this statute 
overrides the Constitutional doctrine of separation of powers. 
(Footnote continues on next page.) 



439 



-14- 



( Footnote continues from preceding page) 

He cites (p. 6) Miranda v. Arizona 387 U.S. 436 (1966), a case 
that vrould seem singularly irrelevant v.'here a grant of 
immunity that vrould prohibit the use of compelled testimony is 
involved. Finally, reference is made to ICilbourn v. Tlio nnson, 
103 U.S. 168 (1881), but this case, which involved" a conten-.p't 
proceeding, only held that Congress may not pry into private 
affairs beyond the scope of its resolution and without some 
valid legislative purpose. But see Sinclair v. Un ite d States , 
279 U.S. 263 (1929). Hutcheson v. United State s, 309 U.S. 
599 (1962). 



440 



-15- 



V. CONCLUSION 

As' we have previously stated to this Court, the present 
matter deals not only with a statute clear on its face but 
with a delicate issue of separation of powers. We submit 
thatj in these circumstances, the Court should not tamper 
with the inter-workings of the legislative process. The 
requested immunity orders should issue.* 



Samuel Dash 
Chief Counsel 



James Hamilton 
Assistant Chief Counsel 



^^2^,Z/ Y^:^ 



-''^-^-^^.^J 



Ronald Rotunda 
Assistant Counsel 



*To resolve our final issue, counsel for both John Dean and 
Jeb Magruder have represented to the Committee that their 
clients, without immunity, will invoke their Fifth Amendment 
privilege where appropriate; the Committee has so certified to 
this Court and has received no subsequent representation 
from counsel for Dean and iMagruder to the contrary. 



441 



CERTIFICATE OF SERVICE 

I certify that on the 7th day of June, 1973, I so served a copy 
of the attached Reply Memorandum on the Honorable Elliot Richardson, 
Attorney General of the United States, on Archibald Cox, Esq., Special 
Prosecutor, and James Bierbower, Esq, attorney for Jeb Stuart Magi-uder, 
by hand delivery. I also served a copy of the attached Reply Memorandum 
on Charles Shaffer, attorney for John W. Dean III, by depositing the same, 
postage prepaid, in a United States Post Office. 



^/^s^^/^. v^^ L^^v^^. 



442 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 






'M,\ 



'^S] 



■':} 



In the Matter of the Application of 






/^/y 



t> 



UNITED STATES SENATE SELECT 
COM-IITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



C/o 



Misc. No. 70-73 




MOTION FOR LEAVE TO FILE 
AMICUS STATEMENT 

American Broadcasting Companies, Inc. (ABC) , Columbia 

Broadcasting System, Inc. (CBS) , National Broadcasting Company, 

Inc. (NBC) and Public Broadcasting Service (PBS) hereby 

respectfully request leave to file the attached Statement as 

amici in connection with this Court's consideration of the 

Application of the Special Prosecutor for Orders Conferring 

Immunity. 

Respectfully submitted, 

-77 ,,...- M {^'Lxly Mh 

Thomas N. Frohock, Esq. 

Attorney for American Broadcasting 

Companies, Inc. 
1150 17th Street, N. W. 
Washington, D. C. 20036 



Joseph De 



i'-C' r v'-'i--^-i'" /■/•■■''V 



;ph DeFranco, Esq.* 
Attorney for Columbia Broadcasting 

Company, Inc. 
1990 M Street, N. W. 
Washington, D. C. 20036 

^^- ■■. ■il:'^vU.^X'\J 

Howard Monderer, Esq. 

Attorney for National Broadcasting 

Company, Inc. 
1800 K Street, N. W. 
Washinqfron, D. C. 20006 

/ • , ' • / 

i__ ___ .:,:..'■.. ■ <■ J' ■-! 

Noi'man M. Sine] , Esq„ 

Attoi.ncy for Public Broadcasting Srrvu.o 

405 )-.'):nf;uit Plcir.a, S. W. 

W.ir;hiiv)l,on, n. C. 7\M?A 



Juno 7, rv/3 

* MiMiib.-j- oi; iho n.ur of viii! ;;i..ito la ucw voik 



443 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



'•■T 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE OH PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



Misc. No, 70-73 



STATEMENT 



Araer.ican Broadcasting Conipanios, Inc. (ABC), 
Columbia Broadcasting System, Inc„ (CBS), National Broadcasting 
Company, Inc. (NBC) and Public Broadcasting Service (PBS) 
join in this amicus statement. If the Senate Watergate 
Committee proceeds in open session, the broadcast press 
should not J:-e prevented from exercising its responsibilities 
to the public. 

We do not address ourselves to the merits of the 
arguments of the Senate Committee and Special Prosecutor, 
except in this respect. We urge this Court to take cognizance 
of the fact that the Senate Committee investigation and 
its hearings are important news events of which the public 
has an undeniable right to know. 

Public Senate hearings have historically been open to 
live televi:iion coverage. If the Senate Watergate Committee 
hearings are open to p^ress coverage — as tliey should be if 



444 



-2- 

the hearings are public -- there should be no court 
prohibition against live radio and television coverage. 

Respectfully submitted. 



June 7, 1973 



Thomas N. Frohock, Esq. 

Attorney for Amex'ican Broadcasting 

Companies, Inc. 
1150 17th Street, N. W. 
Washington, D. C. 20036 

■'-^ I - ■ ■ ■ • r- ■ t 

Joseph DeFranco, Esq.* 

Attorney for Columbia Broadcasting 

System, Inc. 
1990 M Street, N. W. 
Washington, D. C. 2003G 



O / 






Howard Monderer, Esq. 

Attorney for National Broadcasting 

Company, Inc. 
1800 K Street, N. W„ 
Washington, D. C. 20036 

Norman M. Sinel, Esq. 

Attorney for Public Broadcasting 

Service, Inc. 
485 L'Enfant Plaza, S. W. 
Washington, D. C. 20024 



* Mi>iiilic-i: o\ the l'..ii- of t]i<> Sl.itc of New "b'oi Is 



445 



CERTIFICATE OF SERVICE 

lone M. Feldmann hereby 

certifies that on this 7th day" of June, 1973, she served 

the foregoing KOTION FOR LCAVE TO FILE AMICUS STATEMENT and 

STATEMENT by hand on the follov;ing: ^ 

The ITonorable 

Archibald Cox 

Special Prosecutor 

Watergate Special Prosecution Force 

U. S. Department of Justice 

Suite 928 

1425 K Street, N„ W. 

Wa^ngton, D, C. 

Sarr.uel Dash, Esq. 

Chief Counsel 6; Staff Director 

Senate Select Committee on 

Presidential Campaign Activities 
1418 NSOB 
Washington, D. C. 20510 

The Honorable 

John J. Sirica 

Chief Judge 

U. S. District Court for the District of Columbia 

3rd and Constitution Avenue' - 2nd Floor 

Washington, D, C. 

/ 



/-^. 



' > 1 ■---''■/ -f 4 ,^^\ 



lone M„ Feldmann 



446 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



APPLICATIONS OF UNITED STATES SENATE ) 

SELECT CCMMITTEE ON PRESIDENTIAL CAMPAIGN ) MISC. NO. 70-73 

ACTIVITIES ) 



Friday, June 8, 1973 

The above-entitled cause came on for hearing at 

10:00 a.m., before THE HONORABLE CHIEF JUDGE JOHN J. SIRICA. 

APPEARANCES: 

FOR THE CCMMITTEE: 

SAMUEL DASH, Chief Counsel 

JAMES HAMILTON, Assist. Chief Counsel 

RONALD D. ROTUNDA, Assist. Counsel 

FOR THE WATERGATE SPECIAL PROSECUTION: 

PHILIP HEYMANN, Assistant to Mr. Cox 
EARL SILBERT, Asst. U.S. Attorney 
SEYMOUR GLANZER, Asst, U.S. Attorney 
DONALD CAMPBELL, Asst. U.S. Attorney 

CHARLES SHAFFER 

ROBERT C. MC CANDLES, Counsel for John W. Dean, [III 

JAMES BIERBOWER, Counsel for Jeb Stuart Magruder 

HOWARD MONDERER (NBC) 
JOSEPH DE FRANCO (CBS) 
THOMAS FROHOCK (ABC) 

NOTE: Said proceedings in two parts. The following is Part I. 
Part II filed under separate cover at earlier date. 

NICHOLAS SOKAL 

OFTICIAL CX)URT REPORTEti 

4800 -r UNITED STATES COURT UOi Sv. 

WASHmCTON, D C 20001 

426 - 7454 





447 



Z ^ C E E D 2 N G _S 

THE COURT: All right. 

MR. DASH: May we approach the bench. Your Honor? 
( AT THE BENCH ) 

MR. DASH: Your Honor, 1 am approaching the Bench to 
advise I am a manber of the Supreme Court of Pennsylvania and 
the Supreme Court of Illinois but not yet admitted to this court 
and would like to be admitted for this case. 

THE COURT: Glad to have you participate. Will you 
make a motion? 

MR. HAMILTON: Yes, sir. I am James Hamilton. I 
would so move, Your Honor. 

THE COURT: All right. 

MR. HEYMANN: I am a member of this Bar, Your Hf nor. 

THE COURT: You may be admitted. 

MR. SHAFFER: I second Mr. Dash's motion. 

THE COURT: All right. I received a motion to inter- 
vene this morning by the three networks and 1 granted leave to 
file. I can't see there is any objection to the attorneys par- 
ticipating in this argiment. It is only a two or three page 
i memorandum attached. Did everybody get a copy? 

MR. HEYMANN: We did not, Your Honor. 

THE COURT: We will peimit you to argue your matter 
today. All right. 

( END OF BENCH. OPEN COURT ) 



448 



THE COURT: Mr. Dash, are you ready to proceed? 

MR. DASH: Yes, Your Honor. 

Your Honor, I am Samuel Dash, Chief Counsel for the 
Senate Select Committee onPresidentialcampaign Activities and 
I am arguing in case No. Misc. No. 70-73 before this Court. 

This case comes before the Court on the application 
by the Senate Select Committee for Presidential Campaign 
Activities for immunity orders for Mr. Jeb Magruder and Mr. 
John Dean under 18 U.S.C, Sections 6002 and 6005 which in 1970 
gave Congress for the first time powers of granting immunity, 
use immunity, to witnesses who would not testify before an 
investigating committee on constitutional grounds. 

The issue that the Court asks counsel to argue is the 
interpretation of the statute where a congreasLonal committee 
has submitted application to the Court, where if the requirementjs 
of the statute are met — and the requirements of this statute 
are that two-thirds of the members of the committee have voted 
to apply for such an order and that there be notice, ten days 
initial notice given to the attorney general that an application 
will be filed and that after such notice is given that application 
is filed the attorney general may request twenty additional day« 
and be granted. 

If those procedural requirements are met does the 
Court have the mandatory duty to sign the order, or does the Couij't 
have discretion to sign it or not sign it? 



449 



Although the Special Prosecutor, Mr. Cox, concedes in 
his memorandum to this Court that 18 U.S.C. Section 6005 makes 
it mandatory that the Court issue the Immunity order as to Mr. 
Magruder and Mr, Dean which has been applied for by the Senate 
Select Committee, he seeks to dilute this clear mandatoryprovisijon 
by advocating that the Court attach conditions to the immunity 
order and the conditions generally without specifying them would 
limit up to the publicity of the hearings, to one extreme that 
the hearings be held in executive session and if not that, that 
there be restrictions on television and radio broadcasting and 
commenting until the final report or after trials by members of 
the staff or members of the committee. 

It is submitted that the Special Prosecutor request 
flies in the face of the express language of the statute and 
its legislative history and it invites this Court to engage in 
a severe invasion of the constitutional doctrine of separation 
of powers. 

First, on behalf of the Committee, I would like to ad- 
dress myself to Mr, Cox's reasons for seeking to have these 
conditions imposed. And basically his reason is that ongoing 
public televised hearings involving the testimony of witnesses 
like Mr, Magruder and Mr, Dean testifying under a use immunity 
order will prevent the criminal prosecutions of major principals 
involved in the Watergate case. 



34-966 O - 74 - pt. 1 - 30 



450 



Your Honor, the Comnittee rejects this claim made by 
the Special Prosecutor. First, it must be emphasized that the 
Select Ccramittee is not a regular committee of Congress which 
is seeking to butt in in an existing criminal prosecution. It 
was created by a unanimous vote of the Senate at a time of cris Ls 
and of course I think I need not press this kind of argument 
before Your Honor who presided at the first Watergate trial and 
knew of the extreme interest of the public and your own expressed 
positions as to the need to know who else besides those who werij 
indicted were involved and what the real facts were. I think 
this was an area and a period, and still is, in which the at- 
mosphere in the country presented an overwhelming impact or 
evidence of loss of public confidence in government, and when 
there was obvious suspicions of cover-up due to what was apparent 
to a nvmber of people of incomplete prosecution of the first 
Watergate trial in January. And I make that statement without 
any reference or any Implication to the diligence or efforts 
of the present prosecutor, but I think that the present evidenc^ 
that is accumulating now indicates that that trial was in fact 
an incomplete trial in terms of who was involved. 

The Committee's broad reeolution, and a copy of that. 
Your Honor, is attached to our uiemorandim , shows that the 
Committee is mandated to conduct an imsediate public investigat ton 
of the facts of the Watergate case and any other illegal or impropei 



451 



activities connected with the presidential campaign of 1972. 
That such a function is a proper f unction of the Congress is 
made very clear in the Supreme Court decision of Watkins vs 
United States, cited on page 2 of our memorandun, and I would 
like to quote what I think is a pertinent quotation. The Court 
said at page 200: 

"There is a power of the Congress to inquire into 
and publicize corruption, maladministration or in- 
efficiency in agencies of the government." 

That was the only kind of activity described by 
President Woodrow Wilson in Congressional Government, a book 
he wrote, when he wrote in that book: 

"The informing function of Congress should be 
preferred even to its legislative function. From the 
earliest times in its history the Congress has assiduously 
performed an informing function of this nature." 

I state to the Court the informing function of Congress 
is not to be just a convening investigating committee to inform 
the public. The Congress cannot do its business. No legislation 
of importance can really be enacted unless it has public suppon: 
and if enacted without public support it cannot long survive. 
Therefore, the public informing function is an integrated role 
of the legislative function as well in order to receive public 
support for what Congress wishes to do. 



452 



At the time the Committee began its public hearings 

on May 17th there were no new indictments returned by the grand 
jury and still a t this time there are no new indictments. 
Indeed, the U.S. Attorney's Office has indicated that indictmenj:s 
may not be forthcoming for about 60 to 90 days. By that time 
the Watergate phase of the Committee's hearings will have been 
completed. No witness testifying under use immunity before the 
Committee is shielded from prosecution. If the Prosecutor has 
independent evidence such a witness can be indicted, tried and 
convicted. Indeed, this was the very purpose of the new legis- 
lation in 1970, to limit the immunity to use immunity rather 
than tranactional immunity, so if a Congressional committee 
needs the testimony of a witness and has to grant immunity ot 
does not impede the prosecutor from prosecuting that person if 
the prosecutor has independent evidence. And the only immunitjy 
which we are requesting before this Court under the statute is 
use immunity alone. And we submit that Mr. Cox's fears that 
our receiving such testimony under such use Immunity would lmpe|de 
or prevent prosecution is totally unfounded, and in fact was 
contemplated by the Congressional act and was taken care of by 
the use immunity provision. 

Further, despite the attendant publicity of the 
public hearings this alone, Your Honor, has never been held by 



453 



8 

any court to prevent a prosecution. 

The Delaney case has frequently been cited and we 
refer to that case in our brief and I will go into it more in 
depth later, but in t h e Delaney case which Is probably the 
leading case on the issue of the impact of a prosecution and 
a Congressional committee hearing, the remedy was not conditioning 
or restricting the Congressional conmittee but was continuing 
the criminal case. In Delaney a request for continuance by the 
defendant was denied and the Court reversed on that basis. But 
Delaney clearly, as I will indicate, states that the Congressional 
committee's hearing has a right to go on and makes this a very 
special distinction in a situation where the Congressional 
committee hearing is begun prior to indictment. 

Now, first I would like to address myself to the 
specific language of the statute. 

Section 6005 and Section 6002 in no way by the clear 
language of the statute support the position of Mr. Cox that 
this Court can impose conditions on the order of immunity. 
Indeed, the statute says that when the application is made and 
alleges and sets forth that the statutory requirements are met 
the Court shall issue the order. And the word "shall" was not 
put there without particular purpose because the legislative 
history makes it clear that "shall" was meant, and I will brief [Ly 
get into that legislative history. 



454 



Prior to that, I think if one wanted to read into 
the statute the kind of condition that Mr. Cox would suggest 
to this Court one would have to do major surgery on this statutej. 
One has to recognize that the statute is only three years old. 
It was passed by Congress at the height of television communi- 
cations. Clearly, Congress contemplated highly publicly charged 
hearings in the Congress that would be on television, on radio, 
and covered by the press, and if Congress was concerned and 
wanted to give the Court the power t o condition an order by 
restricting television or radio communication, Congress clearly 
has the means to do so. It could put such words in the statute 
or legislative history but the legislative history makes it 
clear that Congress was so concerned about the Important consti- 
tutional doctrine of separation of powers that it didn't even 
contemplate adding any condition to the Court's power to grant 
the order, and rather it emphasized in its legislative history 
that the Court's duty was ministerial and mandatory and not dis- 
cretionary. 

Let me just briefly get to that legislative history. 
It is very clear in the legislative history from the House 
Report and the Senate Report, that the Congress in contemplating 
this statute made it clear that there would be no discretion 
in the court and that the court's responsibility was to sign 
the order and that the attorney general himself had no discretitjin 
to vetoe the application of the Committee. 



455 



10 

Perhaps one of the most Important parts of the legis- 
lative history are the working papers of the National Commisslori 
on the Reform of Federal Criminal Laws. This is the socalled 
Brown Commission which for a period of years drafted recommendations 
for the revision of Title 18 of the penal code. And the Brown 
Commission, actually the draft on immunity, was the very model, 
was actually the initial draft of the statute that found its 
way into the Organized Crime Control Act of 1970, which is 18 
U.S.C. 6005 and 6002. And much of the legislative history is 
to be found t here. On page 1440 the working papers in con- 
struing what the statute was to mean said that the Congressiona 
statute was drafted to avert problems both of constitutionality 
and of insufficiency of information from meaningful judicial 
scrutiny. By making the court's function a weak and paltry 
thing, ministerial and not discretionary in nature: 

And m ore illuminating, the working papers at page 
1417 which was I think quite pathetic of what is occurring this 
morning before the Court, the draftsmen of the working papers 
said the following concerning this provision: 

"An immunity grant is not a matter of right or 
wrong but a discretionary governir.ent act. The federal 
district court may of course scrutinize the record to 
make certain the Congressional request for immunity order 
is jurisdictionally and procedurally well founded, and 



456 



11 



that the attorney general has been notified, but if the 
attorney general should oppose the Congressional request 
for immunity order solely because he feels it is unwise, 
the Court would have no constitutional or other legal 
basis for siding with the Congress, siding with the attorney 
general, or making its own calculation of the degree of 
public need for the information balanced against the loss 
of a possible opportunity to prosecute a possible criminal 
Later on it goes on to say that it was never contem- 
plated with the three separate branches of government under 
separation of powers that a confrontation between the Executive 
Branch and Congressional Branch and put the Court in the middle, 
and in order t o preserve that t he Court was given a mandatory 
ministerial or really record keeping function to see the statutary 
provisions are met. 

Now under the case law I would submit. Your Honor, 
that actually there is really no support for Mr. Cox's position. 
Rather, the major cases both in t he Supreme Court of the Unitei 
States and lower courts clearly support the position of the 
Select Committee before this court. 

There is a reference in Mr. Cox's brief to the leading 
of 
case/ Ullman . vs United States, 350 U.S. 422, 1956. This case, 

Your Honor, dealt with the statute that preceded the Organized 

Crime Control Act of 1970 and dealt with the immunity powers 



457 



of the attorney general at that time. In that statute, Your 
Honor, the attorney general in his application had to allege th^t 
it was in the public interest and the question presented by a 
person who was to be granted Immunity as to the constitutionality 
of that statute was that the Court had to resolve that decision 
as to whether or not it was in the public interest, and since 
the Coutt had to do so the statute required the Court to impose 
discretion on the prosecutor's discretion and this involved a 
violation of the doctrine of separation of powers. 

Mr. Justice Frankfurter indicated that really is not 
so, that despite the language there had to be an allegation of 
public interest, that was a requirement of the statute but that 
determination of the public interest was solely the attorney 
general's and the Court could not go behind it if it were to 
preserve its judicial power and not go into executive power. 
And therefore, in order to read the statute and make it 
constitutional. Justice Frankfurther said that the statute 
meant so long as the attorney general said it was in the public 
interest and put forth all the other requirements of the statut j, 
then the duty of the court was ministerial and had to issue the 
order. 

That was the only way the Supreme Court said the 
statute would be constitutional under the doctrine of separatio^ 
of powers. 



458 



13 

THE COURT: May I interrupt you a minute on that poin^, 
I have some questions here I want to ask you but I think this 
is an appropriate point to discuss this. 

First of all, is it your contention that 6005 gives 
the attorney general time to isolate his evidence against a 
potential defendant and to urge the committee to reconsider 
its Immunity request, but that it does not give the attorney 
general the right to object in court to the grant of immunity? 
Is that your position? 

MR. DASH: Yes, Your Honor. In fact that is the cle^r 
statement, iijhat you just read is in the legislative history. 

THE COURT: Now, second: if the Court should — and 
I am not saying that I will or I can — if the Court for some 
reason believes that an application for immunity pursuant to 
Section 6005 in some way constitutes an abuse of the Court's 
process, is the Court powerless to deny the application for 
immunity?, 

MR. DASH: I would say. Your Honor, under Ullman 
the application for an immunity order by the attorney general 
or by Congress, was held not to be an abuse of the Court's 
process but actually a proper use of the Court's process. In 
fact, in further response to Your Honor's question, the legis- 
lative history for Section 6005 actually went into the question 
whether when Congress now in light of Ullman was enacting a 
new immunity provision, should they leave any role for the Court 



459 



14 

at all? Why not have a provision which if Congress wants to 
grant Immunity to have a two-thirds vote, notify the attorney 
general and after the notification is over the iranunity attache^, 
or if the attorney general wants it he makes the decision and 
that is the ultimate decision. And there was some feeling that 
perhaps was an appropriate thing to do, but in reviewing the 
role of the court in the past, the traditional role, to serve 
as a recording function to see to it the statutory requirements 
are met; and also I think another important role and I think 
Your Honor yourself has seen this role when you notified the 
counsel for the parties referred to in these immunity applications 
to be present although the statute doesn't require it, I think 
Your Honor has notified them and I think it is quite appropriati 
because in the legislative hisOory it states there may be situ- 
ations where a congressional committee is before a court asking 
for an order of Immunity when the scope of its authority in its 
resolution would not allow it to have that witness come before 
it because no question put to that witness would fit within the 
scope of authority. I think if the witness so felt he could 
make that arguaent to the Court that is a matter the court coul^ 
determine because the scope of the resolution is clearly within 
Your Honor's jurisdiction. 

So the legislative history makes it clear there is a 
very proper formal function of the court, it is a mandatory 
function in the sense of issuing an order the statutory requirm^nts 



460 



15 



are met, but that determination is an important function and not 
abuse of process of this court. 

•'■t is true that in coming to court we do invoke the 
process of the court and I think this is sort of the weak straw 
that Mr. Cox relies on in asking Your Honor to impose condition^ 
because his position is since we come to court to ask for an 
order then we subject ourselves to whatever conditions the cour^ 
seeks to impose or feels is appropriate to impose. But Ullman 
was a similar case. The attorney general also had to invoke 
the process of the court and Justice Frankfurter made it very 
clear that if t he court went beyond ministerial function of 

determining the statutory requirements were met it would step 

the statute 
on the doctrine of separation of powers and/would be unconsti- 
tutional and therefore I suggested what Mr. Cox is asking this 
court to do is to take that step which would violate the 
separation of powers. 

Now the case which is also referred t o but not 
really at length by the Special Prosecutor is Delaney vs 
United States, which I referred to earlier. And here the sub- 
committee on the administration of internal revenue laws which 
was called the King Committee, held hearings. In Delaney, and 
I think it is very Important, the witness had already been 
indicted and then he was called before the committee. Then wh4n 
he went to trial he asked for a continuance and the continuancti 
was denied. Delaney holds that where there is highly publicized 



461 



16 

coramittee 
congressional/hearings and a trial follows, that the defendant 

has a right to a continuance to a time when the prejudicial 
effect of those hearings has been dissipated. But it is clear 
in the Delaney case what the court said was that is the remedy 
because the court in the Delaney case itself said — and I am 
quoting from page 8 of our memo: "We mean to imply no criticisiji 
of the King Committee. We have no doubt the committee acted 
lawfully within the constitutional powers of Congress duly dele^ 
gated to it. It was for the committee to decide whether con- 
siderations of public interest demanded at that time a full 
dress public investigation." 

And I think much more important, Your Honor, is what 
the court had to say about our situation because Delaney was 
the case where indictments had come d own and then the committed 
went ahead with its hearings. Delaney said we do not decide 
that case but suggested this in the dictum of the opinion, and 
I think this is very pathetic and important at this time. 

The court said: "We limit our discussion to the case 
before us and do not stop to consider what would be the effect 
of a public legislative hearing causing damaging publicity re- 
lating to a public official not then under indictment. Such a 
situation may present important differences from the instant 
case. In such a situation the investigative function of Congre(ss 
has its greatest utility, Congress is informing itself so that 



462 



17 

It may make appropriate legislative action, it is informing 
the Executive so existing laws may be enforced, and is informing 
the public so the democratic processes may be brought to bear 
to correct and disclose executive actions. Also, if as a resul^ 
of such legislative hearings an indictment is eventually pro- 
cured against a public official then in a normal case there 
would be much greater lapse of time between the publicity ac- 
companied by the public hearing and trial of a subsequently 
indicted official than would be the case if legislative heariiig ^ 
were held while the accused is awaiting trial pending indictmen 

Your Honor, I think that language fits like a glove 
the case before you. 

Now, one of the leading cases is the Hutcheson case. 
And we cite the Hutcheson case on page 10 of our memorandum. 
I think it is a very relevant case because it is a very recent 
case. Hutcheson dealt vj ith the McClellan Committee hearings 
and I would suppose if any hearings were more publicly charged 
and received more publicity on television and the news media 
it was the Mc Clellan hearings looking into improper labor 



activities, sometimes called the Hoffa hearings, or Teamster he 
ings. 

THE COURT: This w as back in about 1960? 

MR. DASH: In the '60s, yes. There, Your Honor, you 
had even, I think, a tougher situation for the particular 



ar- 



463 



18 






Individual involved. Hutcheson had been indicted. And he was 
called before the McClellan Committee and was asked questions. 
Now, the Mc Clellan Comraittee astutely kept away from asking 
any questions which would relate to the pending indictment; 
but nevertheless, it asked many questions involving criminal 
activity and improper activity. The defendant, or the witness, 
appearing before the ccramittee refused to answer questions on 
the ground he was indicted pending trial and that this would 
seriously jeopardize his chances for a fair trial. The Committee 
ordered hixn to answer, he didn't, and he was cited for contempt 
I think it may be significant that the lawyer who successfully 
argued that case before the Supreme Court taking the position 
that we take before you this morning was Solicitor General Cox 
who argued that the congressional committee had a right to 
continue its hearing and had a right to issue that citation for 
contempt, and this was upheld by the Supreme Court. 

I think that is a case. Your Honor, which probably is 
even a stronger situation than this one because there indictmer^ts 
were down and it really affected a witness before a committee 
held in contempt while he was under i ndictraent. 

Now, Your Honor, very briefly I would just like to 
distinguish a nimber of cases which Mr. Cox has raised in his 
memorandum. I think overall, and I respectfully submit to the 
Court that none of these cases are either relevant or support 
his position. 



464 



19 

THE COURT: In their legal tnemorandim , the government 
they rely upon cases In which the indictments were returned. 
In this case we have no indictments, no defendants in this second 
phase. 

MR. DASH: That is true, Your Honor. 

THE COURT: This does make, I think, a considerable 
difference. 

MR. DASH: But even in those cases, Your Honor, the 
cases where indictments, like Hutcheson the Court still said 
that the Legislative Committee had a right to continue. In 
Dglaney the Court did make the distinction that you make, 
and I think the distinction is this: that if indictments come 
down the courts have held that the congressional committee ough^ 
to be very careful in considering whether it should proceed in 
public hearings. But if there are no indictments Delaney says 
there is practically a duty on the congressional committee to 
proceed because its public function is t o go forward so t he 
Executive of the government will do its job, 

THE COURT: As a practical matter doesn't it frequent 
happen in connection with congressional investigations, assunin^ 
that no indictments have been returned, that the government is 
at somewhat of an advantage in this respect, that it gets certain 
leads and information from the congressional investigation that 
might be helpful in connection with the grand jury proceedings? 
I don't know whether they have gotten any information helpful 



465 



20 

to the grand jury investigation or not, but I recall many years 
ago, I think it was 1957 or '58, when I became a member of the 
Court , I t link I tried the first case growing out of the labor 
racketeering investigation on the Hill. I think President 
Kennedy was then chairman of that ccmniittee and there was a man 
by the name of Frank Brewster in charge of the Western Division 
of the Teamsters, he was convicted in my court for contempt of 
congress for failure to answer certain questions. It seemed 
to me the investigation had gone on for sometime and indictment^ 
were returned after the investigation and there was quite a bit 
of publicity around the country, front page news, etc. So it 
is not without precedent that an investigation precedes indict- 
ments. 

MR. DASH: I think that is true. Your Honor. I think 
a congressional investigation actually could first-clause a 
prosecutor to contemplate, 

THE COURT: I think that happened in the Teapot Dome 
scandal. I think there was an investigation first on the Hill 
and subsequent to that there were indictments returned. 

MR. DASH: Yes. And that is why I think although 
that may not be the case here because there is an on-going 
grand jury investigation of the U.S. Attorney's Office and it 
was not our position that it was instigated because of our 
committee hearings but as a matter of precedent in the future 
in order to maintain public confidence in government and permit 



466 



21 



Congress to initiate these things it is important to preserve 
the right of Congress to conduct these investigations. 

I think, in the Hutcheson case the important language 
should be quoted. It says on page 10 of our brief: 

"Surely a congressional committee which is engaged 
in legitimate legislative investigation need not grind 
to a halt whenever responses to its inquiries might 
potentially be harmful to a witness in seme distinct 
proceeding or when crime or wrong-doing is disclosed." 

And as indicated in that case there was in fact an 
indictment and we don't have it here. 

Just briefly, Your Honor, I would like to touch upon 
a nunber of cases which are presented by Mr. Cox. As I sug- 
gested most of these cases, what he attempts to do with these 
cases is provide a basis or platform for the court drawing seme 
power to impose these conditions. And what I suggest to Your 
Honor none of these cases even suggested, he doesn't find help 
in the statute, he doesn't find any help in the legislative 
history, rather far from being silent as he suggests, it is 
quite compelling there is no power to impose conditions. He 
then looks for a number of cases which are fragmentary in theii^ 
references to the issue and helps to build up a platform. 

I think one of the cases he relies on heavily is a 
recent Supreme Court case — Doe vs Mellon, and emphasizes this 
is a case in which the court did interfere with the publication 



467 



22 



of a canmittee's hearing, but that case, Your Honor, was House 

District of Columbia Committee which looked into the public 

school system and after the hearings was going to issue a repor^ 

and in that report was going to public the records of little 

children test- takers, their absenteeism, their delinquency, and 

what the court said there didn't seem to be sufficient legislative 

purpose to expose the little children's absenteeism and failing 

test records to the public. 

By the way, the interesting thing is the court said 

there could have been no interference with the congressional 

coDomittee itself if during the hearing it wanted to have the 

evidence submitted there would be no effort to enjoin or prevent 

it, but felt there was no legislative purpose to bring it out. 

The suit was brought by the families of these kids, 
compare that , to 
To/protect the privacy of children in school with an 

investigation mandated by the Senate where there is evidence 

of major official corruption, and I read the Watkins quote, 

clearly there is quite a distinction between whe ther or not the 

informing function of Congress to inform the public about 

official corruption and a case that deals with the privacy of 

little children in school I think there is no basis to compare 

that case to the instant case. 

The Dcmbrowski vs Eastland case that Mr. Cox cites 

on page 12 of his memo merely states where the act of the 



468 



23 

congressional committees, mainly its staff, is not any way re- 
lated to its authority or resolution the Court can permit a cau^e 
of action to proceed. 

Sheppard is cited by Mr. Cox, and it is a very famous 
case involving fair trial, free press and the extreme publicity 
of a famous murder case. That had to do with court room decoruH 
and what was going on at the time of trial. 

THE COURT: They d idn't have a sequestered jury in 
the case, they had 20 newspapermen stretched across inside the 
rail and one was a few feet from the jurors, I think. The 
judge was running for reelection, and the prosecutor. Every- 
thing happened, 

MR. DASH: And, Your Honor, despite all that the 
decision of the court isn't that the case be dismissed but that 
it could be retried at a proper time. 

By the way, I am really mystified. My famous case 
— I consider famous — 

THE COURT: — you notice I have the reporters, if I 
have room, sit behind the rail when I have a jury inthe box. 

MR. DASH: As I say, the case which mystifies me is 
the Miranda case, but Miranda deals with custodial confessions. 
We are dealing with use immunity which can never be used against 
that witness. What Miranda has to do with this situation I dorl't 
know. Bruton is a case where a confessL on of the co-defendant 



469 



24 



was used in trial, and it deals with the fact realistically a 
judge's instruction may not be able to wipe o ut that prejudice 
of a jury but here we are dealing with pretrial publicity where 
the remedies are continuance, voir dire, and other matters and 
the Bruton case I submit is completely irrelevant. 

Kilbourn, also cited by Mr. Cox, on page 3 deals 
again with a congresaonal conmittee trying to stick its nose 
in a bankruptcy suit where it didn't nave a resolution and I 
think our resolution is quite different. 

So I say this respectfully. Your Honor, to the Court 
and to Mr. Cox, that his line of authorities cited support his 
position probably as strongly as would a thread of gossamer. 

Now in conclusion, we are before this Court at a time 
of great emergency concerning public confidence in its government, 
The Select Conmittee fully respects the role of the Special 
Prosecutor and urges him to push ahead to secure indictments 
and prosecute at trial those indicted in appropriate time. If 
he has the evidence we have, and if he has the evidence that we 
no doubt know he had, he can obtain conviction. However, the 
Select Committee is doing the urgent public business in public 
under a unanimous mandate of the Senate with the need to report 
the facts now. The statute makes it mandatory that the order 
issue without conditions and t hat the manifest public interest 
is against the Special Prosecutor's proposal to conceal the fact 



470 

25 

• 

of what happened in the Watergate cdfe from the public at this 
time when this is the greatest time for the public to know. 

THE COURT: Mr. Dash, one or two questions just so I 
can get your position clear in my mind. 

Now, is it your understanding t hat if the Immunity 
orders are signed the witness must invoke his Fifth Amendment 
privilege in response to a question? 
MR. DASH: Yes, Your Honor. 

THE COURT: From the committee before the immunity 
actually takes effect? 

MR. DASH: Yes, Your Honor. 

THE COURT: I am referring to the following language 
and I say this for the benefit of counsel for the government, 
referring to the following language found in the working papers 
of the National Ccmmission on the Reform of Criminal Laws which 
are cited in your memorandum on page nimbered 1442 which state: 
"In subsection (b) of Section 1 the proposed draft 
authorizes the issuance by the appropriate authority of 
the direction to the witness to testify or produce other 
information in advance of the time when the witness actually 
asserts his privilege against self incrimination. t is 
made clear, however, that the direction does not become 
effective, that is, immunity is not conferred until the 
witness does assert his privilege on the direction to 



471 



26 

testify is communicated to him by the presiding official 
at the inquiry." 

That is the way I understand it. 

MR. DASH: Yes, Your Honor, very much so. Any order 
you may sign based on our application does not become effective 
until the witness who is sworn appears before the committee and 
in fact refuses to answer the question on the grounds of the 
Fifth Amendment or any other constitutional grounds that protect^ 
him. If he answers without it he does not have immunity. 

THE COURT: We have in some cases followed a different 
procedure. I think Mr. McCord appealed before the grand jury 
first, asserted his Fifth Amendment privilege and was brought 
into court and the reporter took the stand and read a series c£ 
questions propounded to him, I heard the questions, I think eveijy. 
body in the courtroom heard it, but apparently you do it a littl 
differently. 

MR, DASH: I think similarly — it is our position tha|t 
if the witness is asked the first question and refuses, as 
Senator Ervin who sits in executive session will generally pro- 
pound a couple other questins and will then ask the witness if 
questions of the same sort were put to him within the resolution 
of the committee, would he persist in refusing to answer, and 
I think if you have that statement that meets the requirement. 

THE COURT: Now, in what way is televizing of the 
testimony of Mr. Magruder and Mr. Dean necessary to fulfill the 



472 



27 



legislative functions of the committee? 

I think you touched upon that briefly. 

MR. DASH: Yes, Your Hjjnor. Just briefly it is not 
our purpose, and I would like to make it very clear, it is not 
the purpose of the committee to put a show-hearing on in this 
country. It never was our purpose and I hope the hearings as 
they are being presented are being presented with dignity and 
professionally. 

New, as to the televized portions and why it is our 
position that the hearings should be not only public but reach 
every home in the country if possible is because we are in this 
time of crisis and loss of confidence by the public and this needs 
remedial legislation. Our committee is not a prosecuting committee, 
It is an investigating committee for legislation and we hope whtn 
we are through we vjill have documented the need for remedial 
legislation, but we are in an area where the kind of remedial 
legislation will have tremendous impact in the political sector 
and the only way I think Congress will enact such remedial 
legislation it have very strong support from the public, and 
that support from the public will not come forward unless the 
public is convinced if certain things that occurred, if they occi^r 
again can destroy democracy. 

THE COURT: One further question. You may not be able 
to answer this question, maybe Mr. Silbert can. 



473 



^ . 28 

Has Mr. Magruder testified before the grand jury? 

MR. DASH: I don't know the answer to that, Your Hono 

THE COURT: I will ask Mr. Silbert. 

If he has testified has he been granted Immunity? 
I don't recall signing an order granting him Immunity. Maybe 
Mr. Silbert can answer that. 

If he has testified before the grand jury and waived 
any Fifth Anendment privilege he might have, does that affect 
your request? 

MR. DASH: I submit it doesn't based on counsel's 
position to us. I presented, by the way, Mr. Bierbower who is 
in court, who sent a letter to me prior to our wishing to interf 
view Mr. Magruder, that if he were called he would reserve the 
right to assert constitutional privileges. I did raise the 
question with him if he is appearing before the grand jury and 
testifying without immunity in what way should he be asking 
immunity from our committee and his answer was that our resolutHon 
is much broader than the focus of the grand jury and t hat questions 
that we will and may put to Mr. Magruder will go beyond the 
focus of the present grand jury and therefore he may want to 
— and I use this terra advisedly — purchase a certain amount of 
criminality but not much more, and I think in this particular 
case before our committee he feels he is not waived, and anythijng 
he testifies before t he grand jury I don't believe serves as a 



474 



29 

waiver of the defendant's rights when he ccmes before a legis- 
lative committee and is being asked broader questions in terms 
of other criminal acts. 

THE COURT: All right, thank you. 

MR. HEYMANN: ... 

( NOTE: The remainder of these proceedings 

have been previously transcribed and 
are filed under separate cover. 



CERTIFICATE 

It is certified the foregoing is the official 
transcript of proceedings indicated. 

^NICHOLAS SOKAL 
Official Reporter 




475 

UNITED STATES DISTRICT COURT , 
FOR THE DISTRICT OF COLUMBIA 



[ USA vs JOHN DOE, ET AL. MISC. NO. 77-73 

IN THE MATTER OF THE UNITED STATES MISC. NO. 70-73 
SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES. 

IN THE MATTER OF THE UNITED STATES MISC. NO. 83-73 
SENATE PERMANENT SUBCOMMITTEE ON 
INVESTIGATIONS. ] 



Tuesday, June 12, 1973. 
BEFORE THE HONORABLE CHIEF JUDGE JOHN J. SIRICA. 

COUNSEL PRESENT 

EARL J. SILBERT, ESQ. 
SEYMOUR GLANZER, ESQ. 
DONALD CAMPBELL, ESQ. 
TOM NEAL, ESQ. 



'RONALD D. ROTUNDA, ESQ. 
PHILLIP HAYMAN, ESQ. 
ALLAN H. FRIEDMAN, ESQ. 
THOMAS J. McTIERNAN, ESQ. 

CHARLES NORMAN SHAFFER, ESQ. 
ROBERT C. McCANDLES, ESQ. 
JAMES BIERBOWER, ESQ. 



Jack Maher 
Court Reporter 



476 



[ PROCEEDINGS ] 

9:30 a. m. 

THE COURT (Sirica, C. J.)-' This morning I have 
filed an opinion outlining the reasons for my decision con- 
cerning the immiinity request from the Senate Select Committee. 

After careful study, it is the Court's opinion that 
its duties in this matter are purely ministerial and that 
any attempted exercise of discretion on its part either to 
deny the request or to grant immunity with conditions would 
be an assumption of power not possessed by the Court. 

I will, therefore, sign the order granting immunity 
and compelling testimony as proposed by the Select Committee. 
Inasmuch as the Court" is without discretion in this matter, it 
has not invited comment and will not comment on the wisdom or 
unwisdom of granting immunity in this case or on the desirability 
or undesi rabili ty of implementing the Special Prosecutor's 
proposal. My decision and action, therefore, cannot be 
interpreted as anything more than the Court acting as is 
required by the law to act. 

Copies of the Court's Opinion will be made available 
to those who desire them in my Chambers following the 
proceedings this morning. Please see my secretary or lawclerk. 

The Court also has before it a motion to quash a 
Grand Jury Subpoena filed on behalf of Mr. Johan Dean. After 



477 



careful consideration of the papers and oral argument, the 
Court has decided to deny the motion to quash. Mr. Dean will, 
therefore, be required to appear before the Grand Jury 
immediately following the proceedings this morning. 

[Recess at 9:35 a. m. ] 
[CERTIFIED The Official Transcript. 



M-'/i 




(/^Jack Maher 

Court Reporter 



478 



UNITED STATES DISTRICT COURT "X. 

FOR THE DISTRICT OF C JMBIA ''■UL 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



Misc. No. 70: 






ORDER CONFERRING IMMUNITY UPON AND COMPELLING _ "i ■^ry'\ 
TESTIMONY AND PRODUCTION OF INFORMATION FROM , .■- . tnj ?" ■ 
JEB STUART MAGRUDER . ■.:■ 




The United States Senate Select Committee on PreBl<|ential i;^ '., 

Canqjaign Activities, having made \n:itten application for an ,prfller, 

■ ' "',' - ■■-.'""•i^'-i^'- 
conferring immunity upon Jeb Stuart Magruder and compelllng'.Jcii-f 

him to testify and provide other information before it,'Tpur8Uiant!^' 



'\ 



to Title l8. United States Code, Sections 60O2 and 6005» andS^rV 

,'.•■ '\''?''\*^ 
on Court finding that all procedures specified by ^s 6005 hav:aV~_f^; 

been duly followed, it is hereby this / ^ ^^iay of .May],' 197^^^^ 

ORDERED that the said Witness in accordance with the '^.,i-^ys' 

■.'■■'.■. '-^y-ti^ 
provisions of Title l8. United States Code, section 6002 (9nd,'^^.^_ 

'"'■'- ■ v--°/-''r;v' 
6005, shalli<not be excused from testifying or providing otlxey.j-'S 

information before the Select Committee on Presidential! Cn inpal g n. ' k j 

Activities on the ground that the testimony or other lnformat|,9ns , 

sought may tend to Incriminate him. 'y^*^'.^'-f~M''j^ 

AND IT IS FURTHER ORDERED that the said Witness appear wh&i^'v' 
subpoenaed by said Committee and testify and provide euch^Othpr L. 
Information that is sought wlto respect to the matte^'6 uaider ■ l»!*^(v- 
inquiry by said Committee. T,.-^. >vCv'^i|^a' 

AND ITE FURTHER ORDERED that no testimony or other IrUformaf-'rv 
tion compelled under this ORDER (or for any other lnforma,tion**; ; .^ 
directly or Indirectly derived from such testimony or other ''tij'^ 
Information) may be used against the Witness in any criminal /;^|J'%j'. 
case, except for perjury, giving a false statement, ^^^i-''\,}yXj't'^' 
otherwise falling to con5)ly with this ORDER. , r:^ ,.' "> *lv5 

., fJ^ ■: ■■ ■';'**■ ■.■-t^fi;T y: 
1/ • ^ ♦ •.?!^ *■'■■* 'Vfrj"'- 



United St4tes -Dletiflct. JUdge;V^,."^^^^ 






479 



V^-^i /\^ 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



IN RE: APPLICATION OF ] 

UNITED STATES SENATE SELECT J Misc. No. 70-73 
COMMITTEE ON PRESIDENTIAL 

CAMPAIGN ACTIVITIES ] 



OPINION 



FILED 

JMiWhS F. mil Cleric 



The Court has today entered orders which will confer what 
Is commonly termed "use immunity" on two witnesses who are scheduled 
to appear before the Senate Select Conmlttee on Presidential Campaign 
Activities (Select CoiBDlttee) . The orders provide that should the 
witness refuse on Fifth Amendment grounds to give testimony as re- 
quested by the Select Committee, "use immunity" may be conferred by 
the Comnittee chairman. Thereafter, on pain of contempt, the witness 
will be required to fully answer the questions put to him and provide 
the information sought unless such testimony is otherwise privileged. 
The prospective witnesses, Jeb Stuart Magruder and John W. Dean, III, 
have not opposed entry of these orders. The Attorney General, however, 
as represented by Special Prosecutor Archibald Cox, — has objected to 
grants of Immunity without attendant conditions limiting the publication 
of testimony. The Court, upon application of the Attorney General's 
representative, granted a 20-day delay in consideration of the Senate 
requests, and in the meantime asked the Select Committee and the Special 

Prosecutor to file written memoranda treating the question of judicial 

2/ 
discretion under the applicable statute. — Specifically the Court 

asked whether 



1 / Throughout these proceedings, the Court has considered 
the Special Prosecutor to be acting, for the purposes of his assignment, 
in the capacity of Attorney General. 

2 / A Joint statement amicus curiae was also filed on be- 
half of four networks: American Broadcasting Companies, Inc., Columbia 
Broadcasting System, Inc., National Broadcasting Company, Inc. and 
Public Broadcasting Service. 



480 



a court might properly exercise any discretion to deny an Immunity 
request of the legislative branch even though procedural prerequisites 
were met. The Court subsequently heard oral argument In the matter. 
Pursuant to the reasoning set forth below, the Court has concluded 
that in this case, its duties are purely ministerial, and that any 
attempted exercise of discretion on its part, either to deny the 
requests or to grant immunity with conditions, would be an assumption 
of power not possessed by the Court. 

We are dealing with the series of statutes under Title 18 
of the United States Code, beginning with S 6001, which control the 
granting of immunity to witnesses. The specific section here construed 
is § 6005, titled "Congressional proceedings" and is set out below: 

(a) In the case of any individual who has been 
or may be called to testify or provide other infor- 
mation at any proceeding before either House of Con- 
gress, or any committee, or any subcommittee of either 
House, or any Joint conmlttee of the two Houses, a United 
States district court shall Issue, in accordance with 
subsection (b) of this section, upon the request of a 
duly authorized representative of the House of Congress 
or the committee concerned, an order requiring such 
Individual to give testimony or provide other infor- 
mation which he refuses to give or provide on the 

basis of his privilege against self-incrimination, 
such order to become effective as provided in section 
6002 of this part. 

(b) Before Issuing an order under subsection (a) 
of this section, a United States district court shall 
find that — 

(1) in the case of a proceeding before 
either House of Congress, the request 
for such an order has been approved by an 
affirmative vote of a majority of the Mem- 
bers present of that House; 

(2) In the case of a proceeding before a 
conmlttee or a subconmilttee of either House 
of Congress or a Joint committee of both 
Houses, the request for such an order has 
been approved by an affirmative vote of 
two-thirds of the members of the full 
committee; 

(3) ten days or more prior to the day on which 
the request for such an order was made^ the 
Attorney General was served with notice of 

an intention to request the order ■ 



2 - 



481 



(c) Upon application of the Attorney General, 
the United States district court defer the issuance 
of any order under subsection (a) of this sec- 
tion for such period, not longer than twenty days 
from the date of the request for such order, as the 
Attorney General may specify. — 

Prior to the effective date of S 6005 and its companion sec- 
tions (December 15, 1970) the immunity of witnesses was controlled by 

4/ 
at least 50 spearate statutory provisions. — With the enactment of 

S 6001, et seq . , however, all other such provisions have been repealed 

thereby bringing under one roof and standardizing for the first time 

federal immunity measures.—^ 



3 / § 6002, referred to in subsection (a) of § 6005, defines 
the practical import of immunity whether in a court, grand jury, 
legislative or administrative setting. § 6002 reads as follows; 

Whenever a witness refuses, on the basis of his privilege 
against self-incrimination, to testify or provide other 
information in a proceeding before or ancillary to — 

(1) a court or grand jury of the United States, 

(2) an agency of the United States, or 

(3) either House of Congress, a joint consnittee 

of the two Houses, or a committee or a subcommittee 

of either House, 
and the person presiding over the proceeding communicates 
to the witness an order issued under this part, the witness 
may not refuse to comply with the order on the basis of 
his privilege against self-incrimination; but no testimony 
or other information compelled under the order ( or any 
Information directly or indirectly derived from such testi- 
mony or other information) may be used against the witness 
in any criminal case, except a prosecution for perjury, 
giving a false statement, or otherwise failing to comply 
with the order. 

4/ Hearings, Senate Subcommittee on Criminal Laws and 
Procedures, 91st Cong., 1st Sess. (March 26, 1969) at 281-288. 
[Hereinafter cited as Senate Hearings]. 

5 / Though not relevant to the instant matter, one current 
exception should be noted. Title 18 U.S. C. § 2514, which allows 
United States Attorneys to seek immunity from prosecution for a 
witness for any "transaction, matter or thing" about which the wit- 
ness may testify, the so-called "transaction immunity," has a repeal 
date of December 15, 1974, and is. therefore still in force at the 
present time. 



482 



f 6005 deals with "use" as opposed to "transaction" Immunity. 
Transaction immunity may be simply described as that which precludes 
prosecution for any transaction or affair about which a witness testi- 
fies. Use Innunlty, by contrast. Is a grant with limitations. Rather 
than barring a subsequent related prosecution, it acts only to suppress. 
In any such prosecution, thw witness" testimony and evidence derived 
directly or Indirectly from that testimony. Evidence obtained wholly 
independently of immunized testimony may serve as a basis for prosecut- 
ing the witness for activities and transactions including those covered 
in his own statements. 

The question has naturally arisen as to whether use immunity 
adequately supplants one's Fifth Amendment right against self-incrimination. 
Following . the Supreme Court's decision in Counselman v. Hitchcock . 142 
U.S. 347 (1892), in which a use immunity statute was struck down, it was 
for some time supposed that only transaction immunity could afford pro- 
tection co-extensive with the privilege against self-incrimination. A 
later case. Brown v. Walker , 161 U.S. 591 (1896), upheld the immunity 
concept (that of exchanging the right to silence for protection from 
prosecution) but dealt only with a transaction immunity statute. The 
Murphy v. Waterfront Commlsalon , 378 U.S. 52 (1964) decision, however, 
implied that the traditional interpretation of Counselman was incorrect 
and that protection against the direct and derivative use of compelled 
testimony could adequately replace the Fifth Amendment privilege. 
Finally, last year, the Supreme Court sustained Title 18 U.S.C. $ 6001, 
et seq . as constitutionally sound on Its face. See Kaatigar v. United 
States . 406 U.S. 441 (1972). For the purposes of the matter now under 
consideration, the Court considers Kastigar as definitively establish- 
ing the constitutionality of i 6005. 



4 - 



483 



The model for what is now S 6005 originated with the National 
Conmlsslon on the Beform of Federal Criminal Laws (Commission) . — At 
the time the Commission was pursuing its studies, the Senate Judiciary 
Committee was engaged in hearings on S. 30 (organized crime control 
bill) which included at Title II provisions treating the question of 
inmunity in grand Jury and court proceedings. The Commission later 
recommended to the President that a general and comprehensive use immunity 
statute be adopted which would be applicable In grand Jury, court, 
legislative, and administrative proceedings. In April, 1969, the 
President conveyed such a recommendation to the Congress, and on May 
12, 1969, Senator McClellan for himself and Senators Ervin and Hruska 
introduced S. 2122 in the Senate and Congressmen Poff, Edwards and 
Kastenmelex — introduced a companion bill, H. 11157, in the House. 
These bills l(q>lemented the Conmlsslon 's recommendation with no sub- 
stantive changes as far as the provisions for congressional proceedings 

8/ 
were concerned. — xhe Senate Judiciary Comnittee substituted S. 2122 



6 / The Commission was appointed by the Congress in 1966 
"to undertake a study of the Federal criminal laws and recommend 
improvements." The Commission consisted of twelve members: three 
appointed by the President, three Federal judges appointed by the 
Chief Justice, three Senators appointed by the President of the 
Senate, and three members of the House of Representatives appointed 
by the Speaker. See Senate Hearings at 280. 

7 / All three House sponsors were members of the Commission. 
Congressman Poff served as its Vice-Chalrman . 

8 / As drafted by the Commission, the proposed statute read: 

Section (4) . Inmunity Before Congress 

(a) When the testimony or other Information is to be pre- 
sented to oither House or a committee of either House or a 
Joint committee of both Houses of Congress, the direction 

to the witness to testify or produce other information shall 
be Issued by a United States District Court, upon application 
Chax&fd: by a duly authorized representative of the House or 
committee concerned, and subject to the requirements of this 
section. 

(b) Before issuing the direction, the court must find 
that application was authorized, in the case of proceedings 
before one of the Houses of Congress, by affirmative vote 
of a majority of the members present of that House, or in 
the case of proceedings before a committee, by affirmative 
vote of two-thirds of the members of the full coimiittee. 
(continued to next page) 

- 5 - 



484 



for the original Title II o£ S. 30, and the House Judiciary CooDlttee 
subsequently reported out the new version of S. 30 Title II. The bills 
were enacted trlthout further amendment on October 15, 1970. ~^ 



8/ (continued) 

(c) Notice of the application for Issuance of the direction 
shall be served upon the Attorney General at least ten days 
prior to the date when the application Is made. Upon request 
of the Attorney General, the court shall defer issuance of 
the direction for not longer than thirty days from the date 
of such notice to the Attorney General. 
See Senate Hearings at 292. , 

S. 2122, by comparison, was as follows: 

S 6005. Congressional proceedings 

(a) In the case of any individual who has been or nay 

be called to testify or provide other information at any pro- 
ceeding before either House of Congress or any committee, or 
any subcommittee of either Rouse, or any joint committee of 
the two Houses, a United States district court shall issue, 
in accordance with subsection (b) of this section, upon the 
request of a duly authorized representative of the House of 
Congress or the committee concerned, an order requiring such 
individual to give testimony or provide other information 
which he refuses to give or provide on the basis of his 
privilege against self-incrimination , such order to become 
effective as provided in section 6002 of this chapter. 

(b) Before issuing an order under subsection (a) of this 
section, a United States district court shall find that — 

(1) in the case of a proceeding before either 
House of Congress, the request for such an order 
has been approved by an affirmative vote of a 
majority of the Members present of that house. 

(2) in the case of a proceeding before a 
committee or a subcoiMnlttee of either House of 
Congress or a joint committee of both Houses, 
the request for such an order has been approved 
by an affirmative vote of two-thirds of the 
members of the full cosDlttee; and 

(3) ten days or more prior to the day on which 
the request for such an order was made, the Attorney 
General was served with notice of an intention to 
request the order. 

(c) Upon application of the Attorney General, the United 
States district court shall defer the issuance of any order 
under subsection (a) of this section for such period, not 
longer than twenty days from the date of the request for such 
order, as the Attorney General may specify. 

See Senate Report No. 91-617, 9l8t Cong., Ist Sess.. (Dec. 16, 1969} at 
7. [Hereinafter cited as Senate Report]. 

9 / For a complete account of the legislative history see 
Senate Report at 55, 56. 



6 - 



485 



In Its Working Papers, Che National Conmlsslon thoroughly 
explored the language and Intent of what Is now i 6005, and indeed 
anticipated the type of situation now before the Court. Both the 
Bouse and Senate Committees relied heavily on the testimony of 
Commission members and adopted the Commission's recommendations 
concerning imnunity without significant modification. Counsel for 
the Select Committee and for the Special Prosecutor have both made 
references to these Papers. For these reasons, the Court believes 
it appropriate to refer In Che following discussion to the clarifying 
and interpretive language of the Conmlsslon 's Working Papers. 

I. 

On its face, S 6005 casts the role of the Court in terms 
of ministerial duty. The language is mandatory: "... a United 
States district court shall issue , . . . upon the request of a duly 
authorized representative of the House of Congress or the comnittee 

concerned, an order . . . ." (emphasis added). The statutory language 

10/ 
Imposes only two prerequisites or conditions, — both procedural, for 

issuing the requested order: (1) if the proceeding is before a House of 
Congress, the reque8.t for an Immunity order must have been approved by 
a majority of the Members present; if Che proceeding is before a com- 
mittee, subcommittee, or Joint committee, the request must have been 



10 / It is taken as granted by the statute that: (1) the 
individual from whom the testimony is sought, has been or may be called 
to testify, (2) the witness refuses or will refuse to give testimony 
on the basis of his privilege against compulsory self-incrimination, 
(3) the request from the concerned House of Congress or committee 
is made through a duly authorized representative, and (4) the proposed 
order indicates that the witness' privilege against self-incrimination 
is Co be supplanted by the limited imnunity conferred under S 6002. 



7 - 



486 



approved by two-thlrda of the full committee inembershlp , (2) at least 
ten daya prior to filing the immunity request with the court, the 
committee or House must have provided the Attorney General with notice 
of an intention to seek immunity for the named witness or witnesses. 
In short. Judicial discretion cannot be found on the face of the 
statute. 

It is significant also to note that when the insaunity re- 
lates to congressional proceedings, the Attorney General is deprived 
of the discretion he enjoys under other sections of the stat;ute. For 
grand Jury and court proceedings (S 6003) and certain administrative 
proceedings (S 600A) the Attorney General may deny permission to seek 
an ianunity order from the Court. Although S 6005 permits the Attorney 
General to apply to the court for a 20-day extension in which the court 
"shall defer the issuance of any order," no veto power or other authority 
is bestowed. 

A recourse to the legislative history of $ 6005 for aid in 

defining the Court's role indicates that the drafters specifically 

Intended the court, in normal circumstances, to grant iamunity orders 

without regard to its own Judgment or opinion. The Senate and House 

Reports contain almost identical statements on this point. 

A court order must be obtained based on an affir- 
mative vote of a majority of members present in 
a proceeding before either House or a two-thirds 
vote ot the members of the full committee in a 
proceeding before a committee. Ten days' notice 
must be given to the Attorney General prior to 
seeking the order. The court must defer issuance 
up to 20 days at the Attorney General's request. 
As in administrative proceedings, however, the 
Attorney General is not given veto power. Nor 
is the court given any power to withhold the order 
if the factual prerequisites are met. (Enphasis 
added) . 

See Senate Report at 1A§, and House Report No. 91-15A9, 
9l8t Cong., 2nd Sees. (Sept. 30, 1970) at 43. 

The language of the Working Papers, though somewhat blunt, is clear. 



- 8 - 



487 



In speaking of what Is now i 6005, the Papers state: 

. . . [PJroblems both of constitutionality and 
of Insufficiency of information for meaningful 
judicial scrutiny, have been averted by making 
the court's function a weak and paltry thing -- 
■inlsterial, not discretionary in nature. 

The draft statute, accordingly, in continuing 
the requirement of application to a United States 
district court, makes more clear than the present 
statute the intention that the court's function is 
not discretionary. The court "shall" issue the 
direction to testify subject to a finding that the 
procedural requirements concerning specified voting 
arrangements in Congress, and notice to the Attorney 
General, have been met. 

Working Papers of the National Commission on Reform 
of Federal Criminal Laws, Vol. II (1970) at 1440. 
[Hereinafter cited as Working Papers]. 

Counsel have directed the Court's attention to two cases 
which discuss judicial discretion in the context of the predecessor 
statutes to i 6001, et seq . The first of these is Ullman v. United 
States , 350 U.S. 422 (1956). In Ullman , a potential witness sought 
to have the Court reject a request for an immunity order put forth 
by the Attorney General. Although the Oilman statute required the 
lonunity order to be in the "public Interest," the Court (per Justice 
Frankfurter) held that the judicial branch had no discretion to deny 
the order if the procedural prerequisites were met. Quoting District 
Judge Weinfeld, the Court stated that an interpretation giving the Court 
discretion would "raise a serious constitutional question und%r the 
doctrine of separation of powers." (350 U.S. at 433). 

A nondiscretlonary function on the court's part, said Justice 
Frankfurter, would be within its proper judicial power and would not 
usurp the constitutional power of a coordinate branch, in this case the 
Executive. The second case, a decision by the Court of Appeals in this 
Circuit, construed a statute which again was phrased in terms less 
restrictive on the court than f 6005. In re McElrath , 101 U.S. App. D.C. 

- 9 - 



488 



290, 248 F. 2d 612 (1957), an en banc decision. Involved a request 

for Immunity by the Senate Committee on the Judiciary and Its Internal 

Security Subcommittee to which the prospective witness objected. The 

statute Involved wotxld, on Its face, have allowed far more discretion 

to the District Court than the present one. It provided only that the 

requested Immunity order "may be Issued upon application by a duly 

authorized representative of . . . the committee concerned." Judge 

Burger, speaking for four concurring Judges, stated: 

The discretion of the District Court is limited 
at this stage to a determination of the procedural 
regularity of an application and does not embrace 
such issues as the scope of the inquiry of the 
Committee, the pertinency and relevancy of the 
questions propounded or the constitutionality of 
the statute. 101 U.S. App. D.C. at 295. 

If then, neither the Attorney General nor the court may deny 

a congressional application, the question naturally arises, "For what 

purpose does S 6005 require notice to the Attorney Generiil and approval 

by the court?" Though the statute itself is silent here, the Working 

Papers again include a comprehensive discussion. With respect to the 

Attorney General, the Working Papers state at page 1440: 

In the special Instance of congressional inquiries, 
in contrast to administrative proceedings, it would 
be virtually unthinkable to give the Attorney General 
the additional power of disapproval of conferment of 
immunity, because in a Teapot Dome-type congressional 
investigation the Attorney General himself would be the 
focus of the inquiry. 

Nevertheless, the Comnission and the Congress o did recognize the 

seriousness of immunization against punishment for crime and the potential 

adverse effect the conferring of imaunlty might have on criminal law 

enforcement. It was with the intent of ralnimizing any prejudicial impact 

on present and future law enforcement plans that the provision requiring 

notice of intended immunization was adopted. It was expected that timely 

notice would allow the Attorney General to assess the effect of a grant 

of imaunlty on investigations or prosecutions and then, should he feel it 



10 - 



489 



necessary, communicate with the concerned House of Congress or com- 
mittee to "lobby" for a modification of immunity plans. (Working 
Papers at 1A06) . The memorandum filed by the Special Prosecutor 
indicates that he has made use of this opportunity although to no 
avail, as yet. It was also anticipated that a period of time up to 
30 days would permit the Attorney General to "Insulate from the immunity 
grant any incriminating data already in his files prior to the witness' 
testimony." (Working Papers at 1406). Presumably, if such incriminat- 
ing data is available to the Special Prosecutor In this case, he has 
taken advantage of the opportunity to "Insulate" it. Thus, though he 
is accorded no right to be heard in court in opposition to an immunity 
request, the Attorney General is given some protection in his role as 
the administrator of Federal law enforcement by the notice requirement 
of § 6005. 

With regard to court approved., the Commission expressed some 
strong reservations. It suggested at page 1436 of .the Working Papers, 
that Congress give serious consideration to eliminating the judicial 
role altogether. The basic objection to court participation concerned 
the constitutional "separation of powers" doctrine. The problem was 
highlighted in the Ullman v. United States case cited earlier. To uphold 
an immunity statute which required use of the judicial process, the Supretae 
Court felt constrained to read the statute as giving courts no discretion 
to deny immunity, the reason being that the Judicial function is a determina- 
tion of "right" or "wrong" while a decision to grant immunity Is not "right" 
or "wrong" but purely a matter of discretion. The Working Papers sum up 
the Import of Ullman thusly: 

Immunity is the fixed price which the government must 
pay to obtain certain kinds of information, and only 
the government can determine how much information it 
wants to "buy" in the light of the fixed price. Viewed 
thusly, a court has nothing on which to base a deter- 
mination whether a given immunity grant is "right" or 
"wrong," whether it should be made, or whether it should 
not be made. Indeed, for a court to attempt to make such 
a decision, or for Congress to attempt to confer such a 
role upon a constitutional court, would raise serious 
questions of separation of powers under article III, i.e. , 
conferment on a constitutional court of a function not 
"Judicial" in nature. 

- 11 - 



490 



Working Papers at 1A3A-35. 

An attempt to force upon the courts the necessity of second-guessing 

the propriety or wisdom of specific Immunity requests would, perhaps 

unconstitutionally, put the courts "in the middle." 

An immunity grant is not a matter of right or 
wrong, but a discretionary governmental act. 
The federal district court may of course scrutinize 
the record to make certain that the congressional 
request for an immunity order is Jurisdictionally 
and procedurally well founded, and that the Attorney 
General has been notified. But if the Attorney 
General should oppose the congressional request 
for an Immunity order solely because he feels it 
is "unwise," the court would have no constitutional 
or other legal basis for siding with the Congress, 
siding with the Attorney General, or making its 
own calculation of the degree of public need for 
the Information, balanced against the loss of the - 
possible opportunity to prosecute a possible 
criminal. 

Working Papers at 1417. 

All this is not intended to suggest, however, that the court 
is nothing but a rubber stamp. 9 6005 clearly requires that it be a 
checkpoint for assuring proper compliance with the established pro- 
cedures. The Commission has suggested additional functions as well 
which derive largely from the courts' inherent powers. 

A further supporting reason for continuance of the 
requirement of application to a district court is that 
it could conceivably be converted into a sort of declara- 
tory Judgment proceeding not on the wisdom of conferring 
immunity or no, but on the question of constitutional 
jurisdiction of Congress over the inquiry area, statutory 
(or resolution) jurisdiction of the particular agent of 
Congress over the Inquiry, and relevance of the Informa- 
tion sought to the authorized inquiry. 



Under our decided cases concerning congressional investi- 
gations there are potentially four kinds of restraints 
of a jurisdictional nature which the courts may impose, in 
an appropriate proceeding. First, a court may review to 
ascertain whether the investigation falls within the 
total constitutional scope of the congressional investiga- 
tory power. Kilboum v. Thompson , 103 U.S. 168 (1880); 
McGrain v. Daugherty , 273 U.S. 135 (1927); Sinclair v. 
United States . 279 U.S. 263 (1929). Second, a court may 
review to eiacertaln whether a committee investigation ex- 
ceeds the scope of the authorizing resolution, or perhaps 
is wholly unauthorized. United States v. Rumely , 345 U.S. 
41 (1953). Third, a court may review to ascertain whether 
the testimony sought is constitutionally privileged under 
the fifth amendment's self incrimination clause, which is 
irrelevant in this immunity statute context, or is privileged 



- 12 - 



491 



under some other constitutional provision such 
as the first amendment. Although the Supreme 
Court has not yet allowed a congressional witness 
to shelter under the first amendment, it has been 
willing to take a look and has split five to four 
on the Issue. Barenblatt v. United States , 360 
U.S. 109 (1959); cf . Gibson v. Florida Legislative 
Investigation Committee , 372 U.S. 539 (1963). ' 
Fourth, a court may review to ascertain whether 
the testimony sought is relevant to the authorized 
inquiry. Watkins v. United States , 354 U.S. 178 
(1957); Deutch v. United States . 367 U.S. A56 (1961). 

Working Papers at 1441-42. 
To this list might be added the sort of discretion which a court exercises 
in denying an immunity request because it believes that the statute 
compelling testimony may be unconstitutional as applied. (See e.g.. 
In Re Grand Jury Witness Sara Baldlnger , Crim. Misc. No. 3016 (WF) , 
U.S. Dlst Ct. Cent. Dist. Calif. March 14, 1973.) In the present cir- 
cumstances, none of the above-noted situations are disclosed. 



II. 

While the Special Prosecutor acknowledges that the Court 
cannot withhold entry of the Immunity orders here at issue, he never- 
theless asks the Court to make such orders conditional. The specific 
conditions recommended are listed from the Special Prosecutor's memo- 
randum. 

1. Requiring, as In the case of criminal trials, 
the exclusion of the broadcast media (radio and 
television), when an immunized witness is required 
to furnish self-Incriminating testimony, at least in 
the absence of an express waiver by the witness and 
his counsel of any objection to such potentially pre- 
judicial coverage. 

2. Limiting the grant of an order directing the 
witness to testify before the Conniittee to testimony 
given in executive session. 

3. Conditioning the grant of the Committee's 
application on the assurance that it will receive 
the testimony only in executive session and will 
not publicly release the transcript of the testimony 
or any summary of it pending completion of the 
Committee's investigation. 

4. Supplementing one or more of the above by direct- 
ing the witnesses not to discuss or comojent upon their 



- 13 



492 



testimony with members of the press or with any 
persons other than their counsel, menders of the 
Committee and Its staff, and prosecuting officers 
of the Department of Justice. 

5. Supplementing one or more of the above by con- 
ditioning the grant of Immunity on an understanding 
that the Committee and Its staff will not make pub- 
lic statements about the witnesses' testimony pending 
completion of the Consnlttee's Investigation. 

In oral argument, counsel for the Special Prosecutor apparently 

abandoned most of the above recommendations and urged upon the Court 

a single restriction; that the immunity orders direct the witnesses 

to testify only outside the presence of television cameras and radio 

microphones, thus permitting them to assert a Fifth Amendment privilege 

based on the type of news coverage given their testimony. 

Insofar as the Special Prosecutor's proposals ask the Court 
to judge the wisdom of granting immunity to these witnesses or the 
appropriateness of coverage by the broadcast media, the foregoing dis- 
cussion suffices to show that the Court lacks completely any power of 
intervention. Insofar as the proposals ask the Court to exercise in- 
herent powers in the Interest of preserving the rights of potential 
defendants, additional considerations forbid Judicial interference with 
the Select Committee's investigation and procedures. 

The Special Prosecutor has cited a variety of cases which 
highlight the sort of Judicial protections which he seeks. Prominent 
among these are: Sheppard v. Maxwell . 284 U.S. 333 (1966), Miranda v. 
Arizona . 387 U.S. A36 (1966). Estes v. Texas . 381 U.S. 532 (1965), 
Rldeau v. Louisiana . 373 U.S. 723 (1963), and Delany v. United States . 
199 F.2d 107 (1st Cir. 1952). As precedents for Judicial Intervention 
in legislative matters he cites such cases as: Powell v. McCormack , 
395 U.S. A86 (1969), Dombrowski v. Eastland , 387 U.S. 82 (1967), and 
Kllboum V. Thompson . 103 U.S. 168 (1881). 

- 14 - 



493 



These decisions, however, are not precedents for what the 
Special Prosecutor proposes. The one distinguishing feature found In 
each of the cases regarding fair trials and defendants' rights is the 
fact that indictments were extant and defendants identifiable. The 
Court here cannot confront any such "case or controversy." Counsel 
for the Special Prosecutor at the hearing represented to the Court 
that Indlctnents In the matter being investigated by the Select Com- 
nlttee are sure to be forthcoming, although a time cannot be estimated, 
and that Mr. Magruder and Mr. Dean would very probably be named as 
defendants in such indictments. To broadcast nationally the possibly 
self-incriminating testimony of Messrs. Magruder and Dean, compelled 
pursuant to the orders herein, would, asserts the Special Prosecutor, 
endanger (1) the ability of any persons named by the witnesses in 
their testimony to obtain a fair trial, (2) the validity of future 
indictments, and (3) the ability of the Government subsequently to 
prosecute the witnesses. The fact remains, however, that there are 
no indictments, no defendants, and no trials. However much the Court 
may sympathize with the Special Prosecutor's wish to avoid serious 
potential dangers to his mission, it cannot act on suppositions, and 
the Special Prosecutor himself has been unable to show where any court 
has so acted. The matter is simply not ripe for Judicial action. 

Where a court has indictments or trial proceedings pending 
before it, it can draw on a well-stocked arsenal of measures designed 
to preserve the integrity of proceedings and the rights of individuals. 
It may act to change venue, ^rant a continuance as in Delany , supra , 
restrict extrajudicial statements as in Dnited States v. Tljerina , 
412 F.2d 661 (10th Clr. 1969), cert , denied 396 U.S. 990 (1969), control 
the courtroom as per Sheppard v. Maxwell , supra , etc. But even suppos- 
ing that a court might be able to act in a premature situation such as 
the instant one, it is clear that the court could not go beyond administer- 
ing its own affairs and attempt to regulate proceedings before a coordinate 
branch of government. The case authorities cited by the Special Prosecutor 

- 15 - 



494 



cannot sustain Intervention in this situation under the immunity 
statutes. On the contrary, decisional law mandates a "hands-off" y 
policy on the Court's part. A sampling of cases will suffice. 

Delaney v. United States . 199 F.2d 107 (Ist Cir. 1952), la 
a leading case involving pretrial publicity provoked by a congressional 
hearing. After Delaney was indicted on matters relating to the adminis- 
tration of the Internal Revenue laws, he was subjected to adverse pub- 
licity by hearings dealing with tax matters conducted by the so-called 
King subcommittee. The Circuit Court reversed Delaney 's conviction 

because of the District Court's failure to grant a continuance, 

but noted that this indictment could still stand and that, with on 
appropriate continuance, Delaney could have received a fair trial. 
The Court stated further: 

We mean to imply no criticism of the King 
committee. We have no doubt that the Com- 
mittee acted lawfully, within the constitutional 
powers of Congress duly delegated to it. It 
waa for the Committee to decide whether con- 
' sideratlons of public interest dememded at that 
■ time a full dress public investigation [of - > 

Delaney.] 199 F.2d at 114. (emphasis supplied) 

The Court emphasized that the Delaney case involved an individual 

already under indictment. In a statement that portends the present situation 

Che Court said: 

We limit our discussion to the case before us, 
and do not stop to consider what would be the 
effect of a public legislative hearing, causing 
damaging publicity relating to a public official 
hot then under Indictment. Such a situation may 
present important differences from the instant 
case. In such a situation the investigative 
function of Congress has its greatest utility; 
Congress is informing itself so that it may take 
appropriate legislative action; it is informing 
the Executive so that existing laws may be en- 
forced; and it is informing the public so that 
democratic processes may be brought to bear to 
correct any disclosed executive laxity. Also, if 
as a reault of such legislative hearing an indict- 
ment is eventually procured against the public 
official, then in the normal case there would be a 
much greater lapse of time between the publicity 
accompanying the public hearing and the trial of 
the subsequently Indicted official than would be 



- 16 



495 



the case If the leglalative haarlog vera held while 
the accused la awaiting trial on a pending indlctnant. 
199 F.2d at 115. 

In hie concurring opinion in Hutcheaon v. Dnlted States , 369 U.S. 599 

(1962) Juatice Harlan observed: 

. . . [S]urel7 a congressional coamittee which 
is engaged in a legitimate legislative investiga- 
tion need not grind to a halt whenever responses 
to its inquiries might potentially be harmful to 
a witneas in some distinct proceeding . . • or when 
crime or wrong doing is disclosed. McGrain v. 
Dau^herty . 273 U.S. 135, 179-180. 369 U.S. at 618. 



Nor can it be argued that the mere pendency of 
the state indictment ipso facto constitutionally 
closed this avenue of interrogation to the 
[Congressional] Committee. 369 U.S. at 613. 

The recent Supreme Court decision in Doe v. Macnillan , 

0.8. 41 U.S.L.W. 4752 (1973) holds that public diatribution by a 

congressional comslttee of libelous or actionable material may impose 
liability on persons outside the legislative branch, for example, those 
«iho do the publiahing. Thus, as a practical matter, a coanittee might 
in some cases want to be satisfied with internal distribution of infor- 
mation so as not to subject others to liability. Mot^re in the decision, 
however, does the Court even hint that the Judiciary has power to direct a 
congreasional coaoittee so to act. 

It is apparent as well that a cosnlttee's legislative purpose 

may legitimately include the publication of information. As the Supreme 

Court etated in Watklns v. United Statea , 354 U.S. 178, 200 (1957): 

[There is a] power of the Congress to inquire 
into and publicize corruption, maladministration 
or inefficiency in agenclea of the Govemmant. 
That was the only Iclnd of activity described by 
Hoodrow Wilson In Congressional Government when 
he wrote: "The informing function of Congress 
should be preferred even to its legislative 
function." (citation omitted). Prom the earliest 
times in its history, the Congress has assiduously .' 
performed sn "informing function" of this nature, 

Sea also Hearst v. Black. 87 F.2d 68 (D.C. Cir. 1936). 



- 17 - 



496 



In conclusion, the Court finds that the Select Committee 
requests have B«t the two procedural requirements established by 
f 6005. The Court is, therefore, compelled to grant unconditionally 
the inmunlty orders sought. Inasmuch as the Court is wltfiout dis- 
cretion in this matter. It is not Invited to coment on the wisdom 
or unwisdom of granting iimunlty in this case Mr to express its opinion 
on the desirability or undesirablllty of implementing the Special 
Prosecutor's proposals. To comment would be not only gratuitous but 
graceless. The Court's decision and action, therefore, cannot be 
interpreted as anything more than the Court acting as it is required 
by the law to act. 




June 12, 1973 



497 



UNITED STATES DISTRICT COtl^rMB 
FOR THE DISTRICT OF COLUV BIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



JUN 2 1 1973 



JAXK t. OAVEY 
CL£RK 



MISC. NO. 70-73 



APPLICATION FOR ORDER CONFERRING IMMUNITY UPON AND 
COMPELLING TESTIMONY AND PRODUCTION OF INFORMATION 

FROM DAVID YOUNG 



The Select Committee on Presidential Campaign Activities 
of the United States Senate, by its Counsel, hereby applies to this Court 
for an order conferring immunity upon and compelling David Young to testify 
and provide other information before this Committee pursuant to the 
provisions of Title 18, United States Code, Sections 6002 and 6005. In 
support of this application the Committee states: 

1. The Select Committee on Presidential Campaign 

Activities, pursuant to Senate Resolution 60, Section 1(a), 93fd Congress, 

1st Session, is inquiring into the extent, if any, that illegal, improper, or 

unethical activities were engaged in by any persons, acting individually or 

in combination with others, in the Presidential election of 197Z, or any 

» 

campaign, canvass, or other activity related to it. 

2. David Young will be subpoenaed to appear before this 
Committee during hearings that will be held in the near future. 

3. It is anticipated that Mr. Young will invoke his Constitu- 
tional privilege against self-incrimination and refuse to testify or provide 
other information relating to his activities that come within the scope of 
the investigatory authority established by Senate Resolution 60. 



498 



Page Two 

4. This Application has been approved by an affirmative 
vote of all members of the Select Committee present, as attested to by 
the Certification of Samuel Dash, Chief Counsel, Senate Select Committee 
on Presidential Campaign Activities. The Certification is attached hereto 
as Exhibit 1. 

5. Notice of an intention to request this order was given 

to the Attorney General of the United States as required by Title 18, U.S.C. 
I 6005 (b)(3) on June 13, 1973, as attested to by the Certificate of Service 
attached hereto as Exhibit 2. The Attorney General has acknowledged 
service of this notice and has waived his statutory right to a ten day waiting 
period between notification and request for the order provided for in i 6005 
(b)(3), as indicated by the documents attached hereto as Exhibit 3. The 
Attorney General has also stated that he will not seek a deferral of the 
order pursuant to s 6005(c). See Exhibit 3. 

Respectfully submitted. 



Samuel Dash 
Chief Counsel 

Select Committee on Presidential 

Campaign Activities 

James Hamilton 
Assistant Chief Counsel 

Ronald D. Rotunda 
Assistant Counsel 



c2/. 



June oLij 1973 



499 



BAM J. ERVIN. JR.. CHAIRMAN 

HOWARD M. BAKER. JR.. TENM.. VICE CHAIRMAN 
HERMAN E. TALMAOGE, GA, EDWARD J. GURNEV. FLA. 

DANIEL K. INOUYE. HAWAII LOWEI-I. P. WEICKER, JR.. CONN. 

JOSEPH M. MONTOYA, N. MEX. 

SAMUEL. DASH 
CHIEF COUNSEL AND STAFF DIRECTOR 

FRED D. THOMPSON 

MINORITY COUNSEL 

RUFUS L. EDMISTEN 

DEPUTY COUNSEL 



QlCniicb S>l<xie^ S)ena{e 

SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 

(pursuant to S. res. 60. 93D CONGRESS) 

WASHINGTON. D.C. 20510 



CERTIFICATION OF VOTE 

I, Samuel Dash, Chief Counsel of the Select 
Committee on Presidential Campaign Activites of the United 
States Senate, do hereby certify that the APPLICATION FOR 
ORDER CONFERRING IMMUNITY UPON AND COMPELLING 
TESTIMONY AND PRODUCTION OF INFORMATION FROM 
DAVID YOUNG filed pursuant to the provisions of Title 18, 
United States Code, Sections 6002 and 6005 was approved 
by a unanimous vote of the members of said Committee 
present on June 12, 1973. 



^..^'dLeLr-rvoc^ 



^c^ r^ ^/gj 



Samuel Dash 
Chief Counsel 



June 



X/. 



1973 



EXHIBIT 1 



500 



SAM J. ERVIN. J ;.. CHAIAMAN 

HOWARD H. BAKfR. JR.. .tNN.. VICE r MAIRMAN 
HERMAN C. TALMAOGt'. GA. EDWARD J. GUKNCV. FLA. 

DANIEL K. INOUYE. HAWAII LOWELL P. WtlCKCH, JR.. CONN. 

JOSEPH M. MONTOVA. N. MEX. 

SAMUEL DASH 

CHtO^ COUNSEL AND STAFF DIRECTOR 

FRED P. TMOmpgON 

MINORITY COUNSEL 

RUFUS L. COMI-iTtN 

DEPUTY COUNSLL 



'^CnUcb Pieties S)enaie 

SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 

(PUKSUANT TO S. RES. W, SID CONGRESS) 

Washington. D.C. Z05I0 



CERTIFICATE OF SERVICE 

I, Samuel Dash, do hereby certify that on 
the 13th day of June, 1973, I served a notice of our intention 
to seek an order conferring immunity upon and compelling 
testimony and production of infornnation from David Young, 
upon the Honorable Elliot L. Richardson, Attorney General 
of the United States, and Archibald Cox, Special Prosecutor, 
by having said notice hand delivered to them at their offices 
located respectfully in the Main Justice Building, 10th and 
Constitution Avenue, NW, Washington, DC and at 1425 K St., 
KW, Washington, DC. A copy of this notice is attached to 
this Certificate of Service, 



.J^^.J JDc^j^ fRmj 



Samuel Dash 
Chief Counsel 



June 5./ 1973 



EXHIBIT 2 



501 



WATERGATE SPECIAL PROSECUTION FORCE 

United States Department of Justice 

1425 K Street, N.W. 

Washington, D.C. 20005 

June 15, 1973 



Mr, Samuel Dash 

Chief Counsel 

United States Senate 

Select Committee on Presidential 

Campaign Activities 
Washington, D.C. 20510 

Dear Sam: 

This is in response to your letter of June 13th to 
Attorney General Richardson requesting a waiver of the ten- 
day notice provided for in Title 18 United States Code Section 
6005 with respect to an order conferring immunity on and 
compelling testimony of David Yoimg. I hereby waive the ten- 
day notice provided for in the statute, and I shall not apply 
for the twenty-day deferral of issuance of an order under 
Section 6005 which is permitted by subsection (c) of that 
Section. You are free, of course, to submit this letter to 
the Court as evidence of my waiver of the notice requirement. 



Sincerely, 



ARCHIBALD COX 
Special Prosecutor 



fcxHIBIT 3 



502 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 



UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



Misc. No. 70-73 '•• 



NOTICE OF APPLICATION FOR ORDER CONFERRING IMMUNITY 
AND COMPELLING TESTIMONY OF WITNESS 



TO: ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, 

MAIN JUSTICE BUILDING, 10th and Constitution Avenue, N.W.', . 
Washington, D.C. 20530 

PLEASE TAKE NOTICE that on the 2 3rd day of June , 1973 at 

10;00 a.m. , or as soon thereafter as counsel may be heard, in 

the caurtroom of the Honorable John J. Sirica, Chief Judge, 

United States District Court, District of Columbia, located in 

Courtroom No. 2, United States District Courthouse, Third and ■ -, 

Constitution Avenue, N.W. , Washington, D.C, the undersigned,- 

acting on behalf of the Select Committee on Presidential ^ 

Campaign Activities of the United States Senate, will apply 

to the Court, pursuant to the provisions of Title 18, United -::' 

States code. Sections 6002(3) and 6005, for an order conferring 

immunity upon and compelling David Young to testify and provide/ 

other information in an inquiry conducted by said Committee, r^'^j. 



. /V ,r^^u...//^r.-^ 



Mi 



Dated this 13th day of 
June, 1973 



"? Cfiief Counsel 

Senate Select Committee on •-,■ 
Presidential Campaign Activities 



I. •,. 



503 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



MISC. NO» "fO- 73 



MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 
APPLICATION FOR ORDER CONFERRING IMMUNITY UPON AND 
COMPELLING TESTIMONY AND PRODUCTION OF INFORMATION 

FROM DAVID YOUNG 



The Select Committee on Presidential Campaign Activities 

of the United States Senate has applied to this Court for an Order conferring 

immvmity upon and compelling David Young to testify and provide other 

information before Sections 6002 and 6005. These sections, in pertinent 

part, provide: 

"Section 6002. Immunity generally. 

"Whenever a witness refuses, on the basis of his 
privilege against self-incrimination to testify or provide 
other information in a proceeding before or ancillary to-- 



"(3) either House or Congress, a joint committee of 
the two Houses, or a committee or a subcommittee of 
either House, and the person presiding over the pro- 
ceeding communicates to Ihe witness an order issued 
under this part, the witness may not refuse to comply 
with the order on the basis of his privilege against self- 
incrimination; but no testimony or other information 
compelled under the order (or any information directly 
or indirectly derived from such testimony or other infor- 
mation) may be used against the witness in any criminal 
case, except a prosecution for perjury, giving a false 
statement, or otherwise failing to comply with the order." 

"Section 6005. Congressional proceedings. 

"(a) In the case of any individual who has been or 
may be called to testify or provide other information at 
any proceedings before either House of Congress, or any 



504 



Page Two 



subcommittee of either House, or any joint committee 
of the two Houses, a United States district court shall 
issue, in accordance with subsection (b) of this section, 
upon the request of a duly authorized representative of 
the House of Congress or the connmittee concerned, an 
order requiring such individual to give testimony or 
provide other information which he refuses to give or 
provide on the basis of his privilege against self- 
incrimination, such order to become effective as provided 
in section 6002 of this part. " 

"(b) Before issuing an order under subsection (a) of 
this section, a United States district court shall find that-- 



"(2) in the case of a proceeding before a committee or 
a subcomnnittee of either House of Congress or a joint 
committee of both Houses, the request for such an order 
has been approved by an affirmative vote of two-thirds of 
the members of the full committee; and 

"(3) ten days or more prior to the day on which the 
request for such an order was made, the Attorney General 
was served with notice of an intention to request the order 

"(c) Upon application of the Attorney General, the 
United States district court shall defer the issuance of 
any order under subsection (a) of this section for such 
period, not longer than twenty days from the date of the 
request for such order, as the Attorney General may 
specify. " 

As the exhibits attached to the present Application indicate, 
the procedures required by Section 600F have been met. All members of 
the Select Committee present have approved this Application. Moreover, 
the Select Committee, through its Counsel, has notified the Attorney General 
of its intention to request the instant order. The Attorney General' has 
acknowledged notice and has waived his right to ten days delay between 
notice and request under Section 6005(b)(3), as well as his right to further 
deferral of the order pursuant to Section 6005(c). 



505 



Page Three 



Because the requirements of Section 6005 have been complied 
■with, the attached order should be entered. 

Respectfully submitted, 



Samuel Dash 
Chief Counsel 

Select Committee on Presidential 

Campaign Activities 



June 2/ 1973 
J 



James Hamilton 
Assistant Chief Counsel 



Ronald D. Rotunda 
Assistant Counsel 



506 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



Misc. No. 70-73 



ORDER CONFERRING IMMUNITY UPON AND COMPELLING 
TESTIMONY AND PRODUCTION OF INFORMATION FROM 
DAVID YOUNG 



The United States Senate Select Committee on Presidential 
Campaign Activities, having made written application for an order conferring 
immunity upon David Young and compelling him to testify and provide other 
information before it, pursuant to Title 18, United States Code, Sections 
6002 and 6005, and on Court finding that all procedures specified by i 6005 
have been duly followed, it is hereby, this day of June, 1973, 

ORDERED that David Young, in accordance with the provisions 
of Titl^ 18, United States Code, Sections 6002 and 6005, shall not be excused 
from testifying or providing other information before the Select Committee 
on Presidential Campaign Activities on the ground that the testimony or 
other information sought may tend to incriminate him. 

AND IT IS FURTHER ORDERED that said David Young appear 
when subpoenaed by said Committee and testify and provide such other infor- 
mation that is sought with respect to the matters under inquiry by said 
Committee. 

AND IT IS FURTHER ORDERED that no testimony or other 
information connpelled under this ORDER (or any information directly or 
indirectly derived from such testimony or other information) may be used 
against David Young in any criminal case, except a prosecution for perjury, 
giving a false statement, or otherwise failing to comply with this ORDEH, 



United States District Judge 



507 



CERTIFICATE OF SERVICE 

I do hereby certify that on the oQ/ day 

of June, 1973, I served copies of the attached documents upon the 
Honorable Elliot L. Richardson, Attorney General of the United 
States, Archibald Cox, Special Prosecutor, and Tony Lapham of 
Shea and Gardner, attorney for David Young, by causing said 
copies to be hand delivered to them at their respective offices. 



SJ^j^^^Ct^xD. ^^^^fc^ 



June^f 1973 



508 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
CCM^ITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



MISC. NO. 70-73 



MEMORANDUM OF POINTS AND AUTHORITIES SUBMITTED 
BY DAVID R. YOUNG IN RESPONSE TO APPLICATION OF 
UNITED STATES SEMTE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES FOR ORDER 
■ CONFERRING IMMUNITY UPON AND CQJIPELLING 
TESTIMONY AND PRODUCTION OF INFORMATION FRCM 
DAVID YOUNG. AID IN RESPONSE TO PROPOSED ORDER 

1. Introduction 

David R. Young submits the following memorandum in response to 
the application for an order, and the proposed order, compelling him to 
testify before the Senate Select Committee on Presidential Campaign 
Activities (hereinafter referred to as "the Committee"), and to provide 
other information to the Committee, pursuant to the federal use immunity 
statute, 18 U.S.C. §6001 et sea. 

The purpose of this memorandum is to urge an amendment of the 
last paragraph of the order proposed by the Committee, clarifying a point 
of statutory construction that bears importantly on Mr. Young's rights and 
liabilities \inder that order. The need for clarification arises mainly as 
a result of the recent decision in In Re Baldinger . 356 F.Supp. 153 (CD. 
Gal. 1973), holding that the immunity provisions in 18 U.S.C. §6002 do not 
preclude the use against a witness of his compelled testimony in support of 
possible criminal charges relating to prior statements or testimony of the 
same witness on the same subject matter. If that interpretation of the 
statute is sound, then there is little room for doubt as to the soundness of 
the constitutional holding in Baldinger that the use immunity conferred by 



509 



2 - 



18 U.S.C. §6002, where it leaves a witness exposed to the possibility that 
his compelled testimoivy could be used against him to establish criminal 
conduct in relation to past statements or testimony, is not an effective 
or adequate substitute for the Fifth Amendment privilege against compulsory 
self-incrimination. 

Mr. Young has made a prior statement to the FBI and has given prior 
grand jury testimony touching matters that in all probability will be covered 
in any examination before the Committee. Thus Mr. Young is within that class 
of persons who, according to Ealdinger . v/ould be deprived of their Fifth 
Amendment rights if compelled to testify by an order issued pursuant to 
18 U.S.C. §6002. That is true even though Ivlr. Young has no apprehension 
that his prior FBI statement or prior sworn testimony were false in any 
respect. To assure that his Fifth Amendment rights are preserved, Mr. Young 
therefore requests that the order proposed by the Committee be amended to 
make it clear that, contrary to the interpretation of 18 U.S.C. §6002 adopted 
in Baldinger . no testimony or other information may be used against Mr. Young 
any criminal case relating to prior conduct, including prior statements or 
testimony. 

2. The issues in the context of 
the relevant statutory language 

The legal consequences that attach when a witness testifies or 

provides other information pursuant to an order issued under 18 U.S.C. §6002 

are spelled out in that section in the following terms: 

"- . . . no testimony or other information 
compelled under the order (or any information 
directly or indirectly derived from such testimony 
or other information) may be used against the 
witness in any criminal case, except a prosecution 
for per.iury. giving a false statement, or otherwise 
failing to comply with the order ." (Emphasis added) 

These exact terms, including the underscored language, are tracked in the 

order proposed in this case by the Committee. The question of statutory 

construction is whether the underscored language refers only to possible 



510 



prosecutions relating to the compelled testimony, or whether as held in 
Baldinx'er that language refers also to possible prosecutions relating to 
prior statements and testimony of the witness. The constitutional question 
is whether, assuming a construction of the language that would permit use of 
the compelled testimony in possible prosecutions relating to prior statements 
or testimony, 18 U.S.C. §6002 is constitutional as applied to a witness — 
such as the witness in this case — who has made prior statements and given 
prior testimonor or whether, again as held in Ealdinger . the statute is un- 
constitutional as applied in such circ\mistances. 

3. The issue of statutory construction 
There are persuasive reasons to believe that the Baldinger decision 
does not reflect an acciorate interpretation of 18 U.S.C. §6002, and that it 
defines too narrowly the scope of the immunity conferred by that section. 
To begin with, Baldinger appears to be in direct conflict with Kastigar v. 
United States . ^06 U.S. -441 (1972), the Supreme Court's comprehensive decision 
upholding the constitutionality of the federal use immunity statute. Further, 
the traces of legislative history of the provision in 18 U.S.C. §6002 granting 
immunity against use of compelled testimony "in any criminal case, except a 
prosecution for perjury, giving a false statement, or otherwise failing to 
comply with the order," are also at odds with the interpretation of this 
provision in Baldinger . as indeed is the wording of the provision itself. 
These considerations are discussed briefly below. So far as they concern the 
issue of statutory constiniction, they all point to a conclusion that 18 U.S.C, 
§6002 precludes the evidentiary use of compelled testimony in possible 
prosecutions relating to prior statements or testimony. However, if the 
contrary conclusion reached in Baldinger is correct, then so must be the 
conclusions reached in that case on the constitutional issue — namely, that 
the use immunity conferred by the statute affords significantly less pro- 
tection than the privilege against compulsory self-incrimination and that 
the Fifth Amendment therefore bars, as to a witness who has given prior 



511 



- -4 - 



statements or testimony covering the same subject matter, enforcement of 
an order compelling testimony and the production of other information 

X 

pursuant to 18 U.S.C. §6002. 

(a) The Kastirar decision 

In Kastigar v. United States , supra . decided shortly after the 

1970 enactment of the federal use immunity statute, the Supreme Court 

reviewed and affirmed contempt judgments entered against witnesses who had 

refused to answer questions before a grand jury in the face of an order 

compelling them to do so and granting them immunity pursuant to 18 U.S.C. 

§6002-6003, The view expressed by the Court as to the scope of use immunity 

was central to its holding that the statute met constitutional standards: 

"We hold that such immiinity from use and derivative 
use is coextensive with the scope of the privilege 
against self-incrimination, and therefore is sufficient 
to compel testimony over a claim of the privilege. 
While a grant of immunity must afford protection 
commensurate with that afforded by the privilege, it need 
not be broader. . . . Immunity from the use of compelled 
testimony, as well as evidence derived directly and in- 
directly therefrom, affords this protection. It pro- 
hibits the prosecutorial authorities from using the 
compelled testimony in any respect, and it therefore 
insures that the testimony cannot lead to the in- 
fliction of criminal penalties on the witness." 
i/dd U.S. at 453 (Emphasis in opinion) 

Thus the Court was emphatic in construing the immunity provisions of the 
statute as precluding any use of compelled testimony against a witness in 
criminal proceedings, and that construction was basic to the approval of 
the statutory procedures as coextensive with the privilege against self- 
incrimination. To the extent that these same immunity provisions were 
construed in Baldinger to permit the use of compelled testimony as evidence 
against a witness in connection with criminal charges relating to prior 
statements or testimony of the witness, that decision is fundamentally 
inconsistent with Kastigar . 



/ ^ 



512 



(b) Lejrisiative history and other considerations 

As recognized in Baldinper . 356 F.Supp. at 157-158, what little 

legislative history there is on the point indicates that the proviso in 

18 U.S.C. §6002 authorizing the use of ccrapelled testimony against a witness 

in "a prosecution for perjury, giving a false statement, or otherwise failing 

to comply with the order," refers only to prospective conduct of the witness. 

So, for exajnple, the Justice Department comments on the legislation included 

the following: 

"'Title II provides that v;hen a witness refuses 
on the hasis of the privilege against self-incrimination 
to testify or to provide information in a proceeding 
before a Federal co\urt or grand jury, a government agency, 
or either House of the Congress or a Congressional 
committee, testimony may be ordered, but the testimony 
which is compelled or information obtained from the 
testimony which is compelled may not be used against 
the v/itness in any criminal case. An exception of 
course is made for criminal offenses committed during 
the testimony , such as perjury and false statement, 
and for failure to comply with the order itself . ' 
Hearings on S. 30 Before Subcomm. No. 5 of the House 
Gomm. on the Judiciary, 91st Cong., 2d Sess., 
at 162 (1970)." (Emphasis added) 

Similarly, the House Report on the legislation contained a remark to the 
effect that the "exception for perjury, false statements or other failure 
to comply with the order is probably unnecessary," — ' and the only ex- 
planation for a remark of that kind is that the liability of a witness 
for offenses committed after entry of an order would be obvious even without 
an exception in the statute. Certainly the exception would not have been 
thought "probably vinnecessary" if the intention was to expose witnesses to 
use of compelled testimony as evidence of prior offenses. 

Finally, 18 U.S.C. §6002 indicates on its face that compelled 
testimony or other information compelled by an order may not be used as 
evidence of prior offenses. The statute provides that such testimony or 



3^/ H.R. Rep. No. 91-15^9, 91st Cong., 2d Sess. (1970), 1970 U.S. Code Cong. 
& Admin. News 4018, citing United States v. Monia . 317 U.S. L,2L, (19-43). 
That decision also stands for the proposition that a grand jury investigation 
is a "criminal case" for purposes of the Fifth Amendment and for purposes 
of immunity legislation. Jd. at ^27. 



513 



other information may not be used against a witness "in any criminal case, 
except a prosecution for perjury, giving a false statement, or otherwise 
failing to comply with the order," (Emphasis added). The word "otherwise" 
simply makes no sense in this context vmless it mesms that a prospective 
failure to comply with the order is the only event v/ith which the exception 
is concerned, and that "perjury" and "giving a false statement" are but two 
examples of such a failure. If prosecutions relating to prior statements 
or testimony, neither of which could involve a failure to comply with the 
order, were within the contemplation of the exception in the statute, the 
word "otherwise" would obviously have been omitted. 

4. The position of the witness in this case 
Mr. Young has given a prior statement to the FBI and has testified 

twice under oath concerning at least some of the matters about which he is 

2 / 
likely to be examined by the Committee. He has no specific reason to 

expect that any compelled testimony before the Committee will differ in any 

material respect from his prior FBI statement or sworn testimony. Nevertheless, 

Mr. Young does not have access either to his FBI statement or to transcripts 

of his prior testimony. Obviously he does not have total recall as to the 

questions that were asked or the answers that were given on those occasions. 

In these circumstances there is at least a theoretical danger that on some 

point a contradiction could appear between any compelled testimony before the 

Ccmmittee and lUr. Yovmg' s prior FBI statement or sworn testimony. 



2 / The FBI statement was taken in July 1972. The first of the two examinations 
under oath was a deposition taken in September 1972 and subsequently read 
to the Watergate grand jury in the District of Columbia. The second 
examination \jnder oath took place on May 16, 1973, when Mr. Young ap- 
peared before the Watergate grand jury pursuant to an order issued by 
Judge Sirica under 18 U.S.C. §§6002-6003. In connection with his May 16 
appearance before the grand jury, Mr. Young had no occasion to voice the 
concerns expressed in this memorandum, since the Baldinger decision had not 
yet been officially reported. His understanding at that time was that his 
compelled testimony could not be used against him in support of criminal 
charges relating to prior sworn or imsworn statements. 



514 



7 - 



Under the interpretation placed on 18 U.S.C. §6002 in the Paldinper 
case, Mr. Young's compelled testimony before the Committee could be used 
against him to establish criminal charges relating to his prior FBI state- 
ment or sworn testimony. Still worse, if Baldinjer is accepted and if as 
much as an inadvertent contradiction appears between any compelled testimony 
before the Committee and prior sv/orn testimony before the grand jxtry, evidence 
of that fact wo\ild not only be usable against Ivlr . Young but might alone be 

.2-/ 

sufficient to convict him. These are possibilities, however remote, to which 
Mr. Young may not be exposed without depriving him of his Fifth Amendment 
privilege against compulsory self-incrimination. 

5. Conclusion 

As noted at the outset, the purpose of this memorandum is to seek 
an amendment of the order proposed by the Committee, clarifying the scope 
of the immunity conferred by 81 U.S.C. §6002, in the light of the Baldinger 
decision. Absent such a clarification, ¥x . Yoijng cannot determine with anj' 
certainty what protection is afforded to him by the proposed order compelling 
him to testify and to provide other information to the Committee. He there- 
fore cannot determine whether that protection is coextensive with his Fifth 
Amendment privilege, as the Supreme Court has said in Kastigar that it must 
be before compulsion to testify may be exerted under the federal use 
imm\mity statute. 

Mr. Young would not object to the issuance of the order proposed 

by the Committee if the last paragraph thereof were amended to read as 

follows : 

"AND IT IS FURTHER ORDERED that no testimony or 
other information compelled \inder this ORDER (or any 
information directly or indirectly derived from such 
testimony or other information) may be used against 
David Young in any criminal case, except a prosecution 
for perjury or giving a false statement while testifying 
or providing other information pursuant to_ t]^,i /; ORnF.R , 
or otherwise failing to comply with ^Ehis ORdER." 



2_/ See the federal false declaration statute, 18 U.S.C. §1623.' 



515 



In consenting to the issuance of the proposed order if amended 
in the manner provided above, Mr. Young of course does not intend to waive 
any rights he may have, v/hether under the Committee's rules of procedure or 
otherwise, in connection with any appearance before the Committee. 

Respectfully submitted, 



Anthony A. Lapham 

734 Fifteenth Street, N.W, 
Washington, D. C. 20005 
737-1255 



Counsel for David R. Young 



Dated: June 29, 1973 



516 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT : Misc. No. 70-73 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



MEMORANDUM OF SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES SUBMITTED IN RESPONSE TO DAVID R. 
YOUNG'S REQUEST TU'VT THE SELECT COMlvlITTEE<S PROPOSED 
ORDER BE AMENDED 

This Memorandum is in response to the request of David R. 
Young that the Select Committee's proposed immunity order be 
amended to provide additional protection from the use of 
testimony compelled under the order to prove that he has made 
previous false statements which v;ould subject him to criminal 
charges. The Select Committee opposes this amendment as 
unnecessary. 

The Select Committee's proposed order, an order that this 
Court has previously adopted in regard to other witnesses before 
this Committee, tracks the provision of l8 U.S.C. i 6002 which 
provides an exception from immunity for "prosecution for perjury, 
giving a false statement, or other'/d.se failing to comply with 
the order." Mr. Young is concerned that this exceptions clause 
would expose him to a. "theoretical danger"i' of prosecution for 
previous statements that are demonstrated false or perjurious by 
his compelled testimony. But the language of § 6002 and its 
legislative history clearly indicate that the exceptions clause 
Is meant only to apply to criminal offenses committed in 

T7 Young Memorandum, p. 6 



517 



connection with an immunity order. ^ Indeed, the validity of 
this reading of the statute was established by the Supreme Court 
in Kastigar v. United States , 4o6 U.S. 44l (1972) where the Court 
held that the immunity provided by § 6002 was coextensive with 
the Fifth Amendment's protection against self-incrimination. 
If the statute allowed present testimony to be used in a 
prosecution for prior perjury and false statements, it would not 
provide protection coextensive with the Fifth Amendment and thus 
would not be constitutional. VJe also note that this Court, in 
its opinion of June 12, 1973} at p. 4, confirmed the 
constitutionality of the statute thereby ruling out any 
interpretation that would afford a witness less protection than 
that granted by the Fifth Amendment, 

The authority contrary to the foregoing interpretation of 
the exceptions clause of i 6002 is the recent District Court 
opinion in In re Baldinger , 356 F. Supp. 153 (1973), ^ 
where the Court found that a witness before a grand jury for whom 
immunity was sought under I8 U.S.C, §§ 6002, 6003 could be 
subject to prosecution for making previous statements to the 
FBI if these statements were proven false by the witness' 
compelled testimony. Having so interpreted the statute, the 
Court ruled it unconstitutional as not coextensive with the Fifth 
Amendment privilege. Not only does the Court's interpretation 



2/The phrase "otherwise failing to comply with the order" plainly 
denotes that the statute refers only to a witness' committing 
perjury or making a false statement while testifying under an 
immijjiity order . Moreover, in hearings before the House, the 
Justice Department commented that testimony which is compelled 
under § 6002 "may not be used against the witness in any criminal 
case" but that " /~a ~Jx\ exception of course is made for criminal 
offenses committed during the testimony, such as perjury and 
false statement, and for failure to comply with the order. " 
Hearings on S.30 before Subcommittee No. 5 of the House Committee 
on the Judiciarv, 91st Cong., 2d Sess., at I62 (1970) 
(emphasis added) . 

,3/ Notice of Appeal filed on May 10, 1973, by the U. S. Attorney 
for the Central District of California 



518 



-3- 



seem extraordinarily strained in view of the statute's language 
and legislative history, but also violates the principle that 
statutes are to be interpreted, if possible, to avoid their 
invalidation on constitutional grounds. E.g. , United States v. 
Harriss, 3^7 U.S. 6l2, 6l8 (195'+); United States v. CIO , 335 
U.S. 106, 121-22 (19^+7). 

To summarize, the Select Committee, while concurring vrith 
Mr. Young's position that i 6002 denies the use of immunized 
statements .to prove prior perjury or false statements, opposes 
amending its proposed order because the present language of 
this order adheres to the language of i 6002, v;hich, under a 
proper Interpretation, provides the entire protection that 
Mr. Young seeks. - 

Respectfully submitted. 



Samuel Dash 
Chief Counsel 



James Hamilton, Assistant Counsel 



Ronald D. Rotunda, Assistant Counsel 



William D. Mayton, Assistant CounsoL 



519 



CERTIFICATE OF SERVICE 

I hereby certify that on the 3d day of July, 1973, I served 
"copies of the attached Memorandum upon Anthony A. Lapham, 
attorney for David R. Yoxing, and upon Archibald Cox, Special 
Prosecutor, United States Department of Justice, by causing 
copies to be delivered to them by hand at their respective 
offices. 



William T. Mayton 



520 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT COMMITTEE 
ON PRESIDENTIAL CAMPAIGN ACTIVITIES 



MISC. NO. 70-73 



RESPONSE OF SPECIAL PROSECUTOR 
TO APPLICATION OF UNITED STATES 
SENATE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES 
FOR ORDER CONFERRING IMMUNITY 
UPON, AND COMPELLING TESTIMONY 
AND PRODUCTION OF OTHER INFOR- 
MATION FROM, DAVID R. YOUNG, AND 
TO YOUNG MEMORANDUM IN RESPONSE 
TO COMMITTEE PROPOSED ORDER 



The Special Prosecutor, on behalf of the Attorney 
General, does not oppose the application made by the 
Senate Select Committee on Presidential Campaign 
Activities, pursuant to 18 U.S.C. §§6002 and 6005, for 
an order conferring immunity upon David R. Young and 
compelling Mr. Young's testimony and production of 
other information before the Committee. 

The Special Prosecutor believes that the immunity 
provided by 18 U.S.C. 16002 is coextensive with the 
Fifth Amendment's protection against self-incrimination, 
and that the proposed standard form of immunity order 



521 



submitted by the Committee, without amendment, satisfies 
the concerns expressed by Mr. Young regarding the possible 
use of his testimony and other information compelled 
before the Committee in a proseojtion for perjury or false 
statements against him based on earlier sworn testimony. 

Respectfully submitted, 

' ARCHIBALD COX 

, Special Prosecutor 
Watergate Special 

Prosecution Force 
Department of Justice 
1425 K St., N.W. 
Dated: July 4, 1973 Washington, D. C. 20005 



CERTIFICATE OF SERVICE 



I HEREBY CERTIFY that a copy of the foregoing Response 
of Special' Prosecutor to Application of United States Senate 
Select Committee on Presidential Campaign Activities for 
Order Conferring Immunity upon, and Compelling Testimony 
and Production of Other Information from David R. Young, 
and to Young Memorandum in Response to Committee Proposed 
Order has been mailed' to Samuel Dash, Esquire, Chief 
Counsel, United States Senate Committee on Presidential 
Campaign Actitivies, Washington, D. C. 20510, and to 
Anthony A. Lapham, Esquire, Counsel for David R. Yoxong, 
734 fifteenth St., N.W. , Washington, D. C. 20005 this 
U4^day of July, 1973. 




JTEPHEN E. HABERBELD 
Assistant Special Prosecutor 



522 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLIKBIA 



IN THE MATTER OF THE APPLICATION OF THE 

UNITED STATES SENATE SELECT COMMITTEE ON MISCo NO. 70-73 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(David Young) 



Thursday, July 5, 1973 
BEFORE THE HONORABLE CHIEF JUDGE JOHN J. SIRICA. 

APPEARANCES : 



RONALD D. ROTUNDA, ESQ., Senate Select Committee 
STEPHEN E. HABERFELD, Office of Special Prosecutor 
WILLIAM T. MAYTON 
STUART GERSON 

ANTHONY A. LAPHAM, ESQ., for Mr. Young. 



NICHOLAS SOKAL 

OFFICIAL COURT REPORTER 

4800 -F UNITED STATES COURT HOISE 

WASHINGTON, D. C. 20001 

426 - 7454 



523 

2 

(10:10 a.m.) 

THE COURT: All right. 

MR. ROTUNDA: Good morning, Your Honor. 

May it please the Court. Ronald D. Rotunda, Assistant 
Counsel, U.S. Senate Select Committee on Presidential Campaign 
Activities. I am a member of good standing of the Bar of this 
Court and I move for the admission for the purpose of this casi, 
Mr. William T, hfayton, a member of the Bar of the Superior Gour : 
of the District of Columbia. 

THE COURT: Motion granted. Any other motions? 

THE DEPUTY CLERK: Mr. Stuart Gerson, Assistant U.S. 
Attorney will move for admission of Stephen Haberfeld. 

MR. GERSON: Good morning, Your Honor. It is my 
pleasure to move pro hac vice for the admission of Mr. Stephen 
Haberfeld, a member of the Bar of New York and of Pennsylvania. 
This is my only motion before this Court this morning and I 
ask permission to leave. 

THE COURT: Granted. Very well. Are counsel ready? 

MR. MAYTON: Your Honor, my name is William T. Mayton 
and I represent the Senate Select Committee on Presidential 
Campaign Activities in the matter of the Application of the 
United States Senate Select Committee on Presidential Campaign 
Activities, Misc. No. 70-73. 



524 



The Committee is applying to this Court for an order 
conferring immunity upon and conpelling David Young to testify 
before the Committee pursuant to Sections 6002 and 6005 of Titlje 
18 use. 

Mr. Young will be subpoenaed to appear before the 
Committee during hearings that will be held in the near future. 
The Committee anticipates that Mr. Young will invoke his privilege 
against self-incrimination and refuse to testify before the 
Committee. The Committee's application for Immunity for Mr. 
Young and an order compelling him to testify has been approved 
by the affirmative vote of all Committee members present. This 
vote is attested to by the certification of Samuel Dash, Chief 
Counsel for the Committee which certification has been submitted 
to this Court. Notice of an intention to request an order of 
immunity for Mr. Young has been given to the Attorney General 
as required by Section 6005(b)(3) of Title 18. The Attorney 
General has acknowledge service of this notice and has waived 
his statutory right to a ten-day waiting period. Also', the 
Attorney General has stated he will not seek a deferral of the 
order. The Attorney General!s letter in this regard has been 
submitted to the Court. 

In conclusion. Your Honor, the Committee has met the 
requirements set by Section 6005 for the issuance of this proposed 
order, and having complied with these requirements it is request:ed 



525 



that the Court issue the Committee's proposed order conferring 
Immunity upon Mr. Young and compelling him to testify. 

Thank you, Your Honor, 

THE COURT: Very well. Counsel for Mr. Young, are yoj 
ready to make a statenent? 

MR. LAPHAM: Yes, Your Honor. 

Good morning, Your Honor, My name is Anthony Lapham 
and I represent Mr. David Young in connection with these pro- 
ceedings. 

As Mr. Mayton has Indicated, the matters before the 
Court this morning on the Senate Select Committee's application 
for an order compelling testimony and granting Mr, Young use 
immunity pursuant to Section 6002 of Title 18, U.S. Code. 

The dispute before the Court is a relatively narrow 
one. There is no dispute as to the Cooamittee having met t he 
procedural requirements of the statute, nor does the dispute 
have to do with the meaning of the federal use Immunity statute 
nor does It have to dowith the scope of immunity afforded by that 
statute. On these key issues there is full agreement between 
Mr. Young and the Senate Select Committee. There is also agree| 
ment as I understand it as to the constitutionality of that 
statute if it is interpreted as we both agree it should be. No^ 
is there any disagreement as to the unconstitutionality of the 
statute if it is given seme more narrow interpretation whereby 
the use of Mr. Young's compelled testimony would be permitted iiji 



526 



support of any criminal charges relating to any past statements 
or past testimony given by Mr. Young in connection with the sam^ 
subject matter which is compelled testimony. 

THE COURT: Will you elaborate on the last statement 
a bit, what do you have in mind? 

MR. LAPHAM: Well, the issue that does exist, Your 
Honor, and the d isagreement that does exist is whether the proi 
posed order submitted by the Committee is adequate to assure Mr 
Young the full measure of the protection guaranteed by the use 
Immunity statute. The relevant paragraph of the order is the 
final paragraph which tracks the statutory language and provide^ 
and I am quoting: 

"It is further ordered that no testimony or other 
information compelled under this order (or any information 
directly or indirectly derived fran such testimony or othe:: 
information) may be used against David Young in any criminal 
case except a prosecution for perjury, giving a false 
statement, or otherwise failing to comply with this order,' 

THE COURT: What is your interpretation of that languajse? 
MR. LAPHAM: As set forth in the memorandun filed witl 
this court on June 29, as I understand this is an interpretation 
of the statute which the Committee counsel agrees, the language 
means that any compelled testimony of Mr, Young's could be used 
in connection with a prosecution for perjury or giving a false 



527 



statement while responding to the order of this Court, that is 
to say that the exception is a prospective one. The words 
"except a prosecution for perjury, giving a false statement, 
or otherwise failing to comply with this order" refer to the 
statute as I understand and the Coramittee' s interpretation of 
the statute to future conducts of the witness. Those words do 
not refer to prosecutions that may be made '^or prior testimony 
Mr. Young has given with the same subject matter or past state- 
ments Mr. Young may have given in connection with the same sub- 
ject matter. 

THE COURT: The statute doesn't say that, does it? 

MR. LAPHAM: The statute is not precise as to the 
meaning of this exception clause and that is the consideration 
that prompted me to file my memorandum. 

THE COURT: In other v,ords you think Mr. Young should 
be protected if by chance he has made a statement we'll say, to 
an FBI agent or someone under oath, not before the Committee? 

MR. LAPHAM: Right. 

THE COURT: That immunity statute should protect him 
as to that. 

MR. LAPHAM: I don't say it should protect him agains 
a prosecution on account of the falsity of any prior statement 
or on account of falsity of any prior testimony, I do say that 
the statute protects him against use of his compelled testimony 



528 



to prove any charges that may relate to any prior statements or 
any prior testlmonyo 

THE COURT: The language of the statute scans to be 
clear and unambiguous to me; indirectly derived from any such 
testimony or other information may be used against the witness 
in any criminal case except a prosecution for perjury. 

Now, if he commits perjury before the Senate Select 
Committee it is clear he can be prosecuted, 

MR. LAPHAM: No question about that, Your Honor. 

THE COURT: Do you want to go beyond that? 

MR. LAPHAM: No, I don't want to go beyond it; I want 
an order that indicates that is the only use that can be made 
of the compelled testimony and the compelled testimony cannot b^ 
used in connection with any prosecution or any criminal charges 
that may relate to any prior testimony or prior statements. I 
want the order to reflect the interpretation of the statute suc^ 
that these words in this exception clause relate only to pros- 
pective conduct of the witness and not past criminal conduct of 
the witness. 

I might s ay. Your Honor, we have no specific reason 
to fear any prosecution relating to any prior statements made 
by Mr. Young or any prior testimony given by Mr. Young, but fee|L 
we are entitled to the fullest protection this statute affords 
and must afford if it is to be consistent with Mr. Young's 



529 



8 

constitutional rights. 

Now the case that prompted the filing of the memorandijim 
that we filed on June 29 is a recent decision in the Central 
District of California, In Re Baldinger, decided April of this 
year. 

THE COURT: Decided by Judge Ferguson. 

MR. LAPHAM: Yes, sir, it was. That decision puts 
on the statute an interpretation contrary to the one I ask be 
put on and contrary to one the Senate Select Cocnmittee agrees 
is the correct one. What the decision does is create doubt as 
to meaning of t he exception clause in the last paragraph of thi 
Ccmmittee's order. I am asking that doubt be clarified by langtiage 
amending the order and I have set forth the amendment t hat I 
desire on page 7 of the memorandom filed on June 29. 

As I indicated at the outset. Your Honor, this is not 
an interpretation as to which there is any disagreement between 
Mr. Young and the Senate Select Committee. They agree the inter- 
pretation is correct. They take, however, the position there isi 
no need to amend the order since the order attracts the statutory 
language and the interpretation would give me the protection I 
seek. On the other hand I don't w ant somewhere down the line 
to be faced with the need to interpret the order or contention 
Mr. Young's testimony can be used in support of any criminal 
charges relating to past conduct. What I want is an order 
clearly expressing Mr. Young's rights and liabilities under the 



34-966 O - 74 - pt. 1 - 35 



530 



statute and those are rights and liabilities the Committee 
agrees he has. 

THE COURT: All right, I understand your position. 

MR. LAPHAM: If I could be helpful any further to the 
Court? 

THE COURT: I think I understand your pcsition. Let m^ 
ask counsel for the Ccnnnittee, or Prosecutor rather, 

MR. HABERFELD: Your Honor, I am Stephen Haberfeld, 
and I am an Assistant Special Prosecutor. 

We have filed with the ^ourt this morning and handed 
to your court clerk this morning a response to the application 
by the Senate Select Committee and the response to Mr. Young's 
memorandum. 

With respect to the application we certainly do not 
oppose the grant of Immunity to Mr. Young for his testimony 
before that Committee. 

With respect to the memorandun, we take the position 
that we interpret the statute in exactly the same fashion as it 
has been represented to you this morning by the Conmittee 
counsel and by Mr. Lapham. We, on the other hand, do not see 
that the concern expressed on behalf of Mr. Young is one that 
is not already covered by the proposed form of order submitted 
to Your Honor. We believe the statute is clear that the inter- 
pretation by everyone present is in perfect agreeement and we 
would think that the amendment suggested to the proposed order 



531 



10 



is unnecessary. 

THE COURT: All right, sir. 

I have considered t he matter raised by Mr. Lapham. 
The Court agrees that in order to be constitutionally valid an 
order compelling testimony must bar use of that testimony in an^ 
prosecution of the witness for prior false statanents or 
perjury. Otherwise the immunity is not coextensive itself with 
the Fifth Amendment privilege as required. The Court is of 
the opinion, however. Section 6002 as written, and the proposed 
order as written affords such protection. The exception provisions 
of 6002 states that a witness's testimony may be used against 
him only in a prosecution for perjury, giving false statements, 
or otherwise filing to comply with the order. 

The Court construes that provision as having referenc 
only to the testimony given by the witness pursuant to the im- 
munity order. It has no application to prior statements or testi- 
mony. 

That being the case, the immunity order drafted by 
the Senate Committee quoting verbatim the exceptions proviso 
of 6002 gives Mr. Young the protection he seeks. There is no 
need for revision. 

I will therefore sign the order submitted. The Court 
will file a brief opinion to accompany this immunity order with PLn 
the next few days. The opinion will set forth the construction 



532 



. 11 

of Section 6002 I have just explained, the Court's reasoning 

and its disagreement with the Baldinger decision. 

All right. 

* * * 



CERTIFICATE 

It is certified the foregoing is the official 
transcript of proceedings indicated. 

NICHOLAS SOKAL 
Official Reporter 




533 



UNITED STATES DISTRICT 

FOR THE DISTRICT OF COLUMBIA / 

^^"JL 5 1973 



COURT / j I F n 



In the Matter of the Application of 

UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



JAMES F. DAVEY, Clerk 
Misc. No. 70-73 



ORDER CONFERRING IMMUNITY UPON AND COMPELLING 
TESTIMONY AND PRODUCTION OF INFORMATION FROM 
DAVID YOUNG 



('V 



jl The United States Senate Select Committee on Presidential i 

il I 

!| - ! 

;| Campaign Activities, having made written application for an order conferring. 

J! I 

!: immunity upon David Young and compelling him to testify and provide other ; 

li {' 

li information before it, pursuant to Title 18, United States Code, Sections | 

I 6002 and 6005, and on Court finding that all procedures specified by i 6005 



■W 



olb**^, 1973, 



have been duly followed, it is hereby, this '^!)-^''' day 

I 
ORDERED that David Young, in accordance with the provisions 

of Title 18, United States Code, Sections 6002 and 6005, shall not be excused , 



from testifying or providing other information before the Select Committee 
on Presidential Campaign Activities on the ground that the testimony or 



I 



other inforniation sought may tend to incriminate him. I 

AND IT IS FURTHER ORDERED that said David Young appear j 

when subpoenaed by said Committee and testify and provide such other infor- ) 

I 
ination that is sought with respect to the matters under inquiry by said | 

Committee, ; 

AND IT IS FURTHER ORDERED that no testimony or other 

information compelled under this ORDER (or any information directly or 

indirectly derived from such testimony or other information) may be used 

against David Young in any criminal case, except a prosecution for perjury, 

giving a false statement, or otherwise failing to comply with this ORDER. 




■^.^e^<l^^ -lU^jL. o-xj 






United StaWs District Judg 



i=^,^ 




^^.^-.^IL^'^-^ 






534 

(COPY FOR: Iffl ROTUNDA) 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



IN R£: AI'PLICATION OF THE UNITED STATES ] 

SENATE SELECT COMMITTEE ON PR£SIDE.vTIAL ] Misc. No. 70-73 
CAMPAIGN ACTIVITIES . ] C f i 

OPINION' ,. WJ 

The Senate Select Committee on Presidential Activities 
(Conunittee) has applied to this Court for an order conferring 
immunity upon and compelling the testiiiony of David R. Young pur- 
suant to Title 18, United States Code §§ 6002 and 6005. The 
Attorney General, as represented by the Watergate Special Prosecutor, 
has waived the statutory 10-day notice requirement and the 20-day 
deferral period. The witness, Mr. Young, has no objection to entry 
of the immunity order sought by the Cozx\ittee, but raises a point 
of statutory construction bearing on the form of the order. The 
problem centers on the exceptions proviso of § 6002, Title 18, and 
the construction given that proviso in a recent California case. 
In Re Baldinger , 356 F. Supp. 153 (CD. Cal. 1973). 

Section 6002 comprises a general definition of "use 
immunity" and is incorporated by reference in subsequent sections 
of the statute, §§ 6003-6005, which relate use immunity to grand 
jviry, administrative and congressional proceedings. The final 
clause of § 6002, the exceptions proviso, bars the use of immunized 
testimony for purposes of prosecuting the witness except in a 
"prosecution for perjury, giving a false statement, or otherwise 
failing to comply with the order." On its face, this language 
applies only to the testimony for which immunity is given. As Mr. 
Young notes, however, the Baldinger decision has construed the 
provision otherwise. 



535 



In Baldinger , a grand jury witness opposed iiT;:?.unity on 

the ground that § 6002 did not preclude the use of her compelled 

testimony in a possible prosecution for prior false statements to 

FBI agents. The court there agreed that the statute left open such 

a possibility and therefore found § 6002 unconstitutional as applied. 

Mr. Young dissents from this interpretation, but to resolve any 

doubt, he suggests that the Court modify the immunity order proposed 

by the Committee, which in its present form tracks the § 6002 proviso, 

so as to eliminate any possibility that his Senate testiir.onv might 

II 
be used in a criminal action Involving prior statements or testinony. 

The Court cannot acquiesce in the Baldinger construction 

of § 6002. The statute's language, its legislative history, and the 

well-established principle that wherever reasonable, statutes must 

2/ 
be read so as to preserve their constitutionality, all combine to 

affirm that the exceptions proviso has a prospective application 

only. Tlie Court holds that the statute and proposed ir^inunity order, 

as written, satisfy the witness' concerns, and no amendEeat is needed. 

The Baldinger decision presents what may be a peraissible 

interpretation of the § 6002 proviso, but that interpretation is by 

no means a necessary one. Indeed, a natural reading favors a conclusion 



£/ The witness proposes the following paragraph. The underlined 
portion is that which is offered by way of clarifying amendment. 
AND IT IS FURTHER ORDERED that no testiniony or 
other information compelled under this ORDER (or any 
information directly or indirectly derived from such 
testimony or other information) may be used against 
David Young in any criminal case, except in a prosecu- 
tion for perjury or giving a false statement while 
te stifying or providing other information pursuant to 
this ORDER or otherwise failing to comply with tills 
ORDER. 

In his memorandum, Mr. Young emphasizes that he has no reason 
to anticipate a prosecution for prior false statements or perjured 
testimony, rather he is acting out of an abundance of caution. 

21 See e.g. , United States v. Harriss, 347 U.S. 612, 61S (1954) 
and United States v. CIO, 335 U.S. 106, 121-22 (1947). 



536 



Just the opposite of that reached in baldinger . As pointed out by 

Mr. Young, the word "otherwise," for example, makes no sense in the 

context of the statute unless it means that a prospective failure to 

comply with the order is the only event with which the exception is 

concerned, and that "perjury" and "giving a false statement" are but 

two examples of such a failure to comply. If prosecutions relating 

to earlier statements or testimony were within the contenplation of 

the exception, the word "otherwise" would have been omitted. 

Congress, as evidenced in the legislative history of § 6001, 

et. seg^. , was well aware of the limitations which must be imposed on 

the use of compelled testimony to make immunity co-extensive with 

the Fifth Amendment privilege. The case authority extant at the 

time made it clear that testimony could not constitutionally be 

compelled if it were subject to use, direct or indirect, in support 

of criminal charges against the witness. It is inconceivable that 

Congress, in its specific attempt to devise a constitutionally sound 

use immunity statute, should have intended or permitted exceptions 

to the use of compelled testimony other than the obvious ones for 

5/ 
offenses committed in the course of testimony. 



3/ "[N]o testimony or other information compelled under the order 
. . . may be used against the witness in any criminal case except a 
prosecution for perjury, giving a false statement, or othen^fise 
failing to comply with the order." Title IS, U.S.C. § 6002. (Emphasis 
added) . 

4/ See e.g. , Senate Report No. 91-617, 91st Congress, 1st Session, 
iDec.^Te, 1969) at 55 and 56. 

ij The House Report referred to the exceptions proviso as "probably 
unnecessary," in other words, the liability of a witness for offenses 
committed while testifying (or refusing to comply with the order) is 
probably obvious without any specific exception in the statute. The 
statement of exceptions was not intended to go beyond the apparent, 
but was included simply as a matter of caution. [H.R. Rep. Mo. 91-1549, 
91st Congress, 2nd Session (Sept. 30, 1970) at 42.] 

Note also the Justice Department's comments at hearings on the 
immunity bill: "An exception of course -is made for criminal offenses 
committed during the testimony, such as perjury and false statement 
and for failure to comply with the order itself." [Hearings on S . 30 
before Subcommittee No. 5 of the House Committee on the Judiciary, 
91st Congress, 2nd Session, (June 10, 1970) at 162.] 



537 



It strains the language of § 6002 to read it as having 
any other than a prospective application. Not only is the statute 
susceptible of a constitutional interpretation, the Supreme Court 
itself has found that it fully satisfies the Fifth Amendment's 
proscriptions. Construing § 6002. then, in the specific case 
now before the Court, the immunity order as drafted by the Committee 
protects Mr. Young against any prosecutorial use of his Senate 
testinony, direct or indirect, the sole exception being that if 
Mr. Young Perjures himself before the Senate Committee or otherwise 
fails to comply «ith the instant order, his testimony may be used 
in prosecuting him for such offenses, l^he procedural requirements 
of § 6005 being met, the immunity order will be entered as requested. 



July I . 



1973 




w • I- Cli-"- 1/ 



Kastigar v. United States, 406 U.S. 4«I C19/2) . 



6/ Kastig 



538 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



in Re: 

UNITED STATES SENATE SELECT COMMITTEE 

ON PRESIDENTIAL CAMPAIGN ACTIVITIES 



MISC. NO. 70-73 



PlL 



PETITION FOR WRIT OF HABEAS CORPUS 
AD TESTIFICANDUM 



f 

Clerk 



^ 



^hS/^y 



The United States Senate Select Committee on Presidential 
Campaign Activities, by its counsel, respectfully represents 
to the Court as follows: 

1. One E. Howard Hunt is a necessary witness at hearings 
before said Committee. 

2. The said E. Howard Hunt is currently in the custody 
of the United States Marshal, District of Connecticut; and 
the Warden, Danbury Federal Correctional Institution, 

WHEREFORE, the petitioner moves that this Court issue 
a Writ of Habeas Corpus Ad Testificandum, directed to the 
United States Marshal, District of Connecticut; and the 
Warden, Danbury Federal Correctional institution, ordering 
the release of the said E. Howard Hunt into the custody of 
the United States Marshal in and for the District of Columbia, 
or into the custody of one of his authorized deputies, for 
return to this District to testify before the Select Committee 



539 



i' relative to the above-captioned matter, 



l,r.^..,^^ ^n,:A iR0<J 



Samuel Dash 
Chief Counsel 



(V a/.'LL 2- 



^..r.M.. ((^/7:<'J 



James Hamilton 
Assistant Chief Counsel 



^AJ. ^/^y.^ ^"^1 



i^lIL. 



Ronald D. Rotunda 
Assistant Counsel 



Let this Wri,t of Habeas Corpus Ad Testificandum issue as of 
this ^d/joj^day of July 1973. 







JUDGH, JOHN J. SIRICA 







540 



COPIES FOR: RONALD ROTUIIDA 

ASSIc^TANT COUNSEL FOR 
COMl^ilTTEE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 



> In Re: 

1 

\ UNITED STATES SENATE SELECT COMMITTEE 

I ON PRESIDENTIAL CAMPAIGN ACTIVITIES 



MISC. NO. 70-73 



TO: United States Marshal, District of Columbia; United j 
States Marshal, District of Connecticut, Warden, Danbury, 
Federal Correctional institution. 



j You are hereby coininanded to produce the body of E. Howard 

! 

! Hunt, by you imprisoned and detained as it is said to the 

I United States Marshal for the District of Columbia, or one of 

I 
I 

I his authorized deputies, so that he may produce on July 24, 
I at 5:00 p.m., the said E. Howard Hunt under safe and 

i secure conduct before the Senators and Staff on the United 
States Senate Select Committee on Presidential Campaign 
Activities, Room G 308, New Senate Office Building, at First and 
Constitution, N.E., for the purpose of giving testimony before 
said Committee, and after said prisoner shall have gi-ven his 
testimony on the above matter, that he be returned by the said 
United States Marshal for the District of Columbia, or one of 



1 



i' his deputies to the custody from whence he came. | 

!i >^' 

V WITNESS the Honorable Chief Judge 

|i of said Court the 20th day of 

/i! July, 1973 

-J^^^f^y ^^'yf^^-^^''^ JAMES F. DAVEY, Clerk 




James P Capiranio, Deputy Clerk 



ii 



EXECUTED this Writ in the above-entitled case this day 

of July, 1973. 



}; UNITED STATES MARSHAL ] 



! By : 



541 



.,..,...- .<<-- ^ ■<->-/ 7 



■^wtieSii^.- >/'* 



1 / - 3- ' 



SUMMONS IN A CIVIL ACTION 



CIV. la (2-64) 
(Formerly D.C. Form No.45o R«v. (C-49>) 



lAmUh ^talps itstrirt fflourt 



FOR THE 



JMLLLjiJkilumbia. 



159:^-73 



Civil action File No. 



SENATE SELECT COMMITTEE ON PRESXDEMriAL 
CAMPAIGN ACTIVITIES, siilng in its ovm 
name and in the name of the UTTITED STATES, 

et al 



Plaintiff s 

V. 



^CHARD M, NIXON, individually and as 
President of the United States 



Defendant 

To the above named Defendant : 

You are hereby summoned and required to serve upon 



SUMMONS 



plaintiff's attorney , whose address 



is 



SAMUEL DASH 
Chief Counsel 

United States Senate 
Washington, D. C. 20510 



an answer to the complaint which is herewith served upon you, within 60 days after service of this 

summons upon you, exclusive of the day of service. If >ou fail to do so, judgment by default will be 

taken against you for the relief demanded in the complaint. 

JAMES F. DAVEY 
•Ci££i_o; Court. 



Date: 



August 9, 1973 



// Deputy Clerk. 

^^'"^ir [Seal of Court] 



NOTE: — This summons is issued pursuant to Kule 4 of the Federal Rules of Civil Procedure. 



542 



RETURN ON SKRVICE OF WRIT 

I hereby certify and return, th;it on the / day of 

I received this summons and served it together with the complaint herein as follows: 

r 



/t^^-^tW^ 



la 



.7^. 







Marshal'sSFees 

Travel ___ $ __ \. 

Service .,_ 






By ^.\ 



U i ii t rd J.'1 ' u^L iii Mui \ .ha l. 






Subscribed and sworn to before me. a 



day of Ci- 



. ry:^!!^-.,. 



■19 >V 






J /' /■' 












}^^^r.AX...A^O \ 



[seal] 

Note: — Affidavit required only if service/ is made by a person other than a United States Marshal or his Deputy. 

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Q 



/i:' 



543 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUlffllA 



SENATE SELECT COf^MITTEE ON PRESIDENTIAL 

CAMPAIGI; ACriVITIES, suing in its own 

name and in the name of the UNITED 
STATES, . 

and 

SAM J. ERVIN, JR.; HOV/ARD H. BAKER, JR.; 
HERI'IAN E. TALMADGE; DA])IIEL K. INOUYE; 
JOSEPH M. MONTOYA; EDWARD J. GURNEY; 
and LOVrELL P. WEICKER, JR., as United 
States Senators who are members of the 
Senate Select Committee on Presidential 
Campaign Activities. 

United States Senate 
Washington, D.C. 20510 

Plaintiffs 



FILED -,,„ , /y-^-^ 

AUG i* 1972 



JAMES ?. DAVnt 
CL£IU< 



Civil 

Action 

No. 



V. 



RICHARD M. NIXON, individually and as 
President of the United States. 



/^f3-73 



The VJhite House 
Washington, D.C. 



20500 



Defendant 



C0I4PLAINT FOR DECLARATORY JUDGI-IENT, 
I/iAKDATORY INJUNCTION AND I/IAKDAl'IUS 



1. This action seeks a declaratory Judgment, a mandatory 
injunction and a writ of mandamus to direct Richard M. Nixon, 
individually and as President of the United States, to comply 
with two subpenas duces tecum, duly served upon him by the 
Senate Select Committee on Presidential Campaign Activities 
pursuant to its authority under Senate Resolution 60, 93d Con- 
gress, 1st Session (1973), attached hereto as Exhibit A. 

2. Ihis action arises under Article I of the Constitution 
of the United States, which vests investigative and legislative 
powers in the Congress of the United States, and \inder Article 
II of the Constitution of the United States, which vests execu- 



tive powers in the President of the United States. 



544 



2 - 



Parties 

3. The plaintiff Senate Select Committee on Presidential 
Campaign Activities is a duly authorized and constituted com- 
mittee of the Senate of the United States. It was created pur- 
suant to S. Res. 6o, v/hich was enacted by a unanimous vote of 
the Senate on February 7, 1973. Under S. Res. 6o, the Select 
Committee is empowered to investigate and study "illegal, 
improper or unethical activities" in connection with the Presi- 
dential campaign and election of 1972 and to determine the 
necessity of nev; legislation "to safeguard the electoral process 
by v/hich the President of the United States is chosen." The 
Select Committee is further empov/ered by a standing order of the 
Senate, Senate Resolution 262, 70th Congress, 1st Session (May 
28, 1928), attached hereto as Exhibit B, "to bring suit on 
behalf of and in the name of the United States in any court of 
competent jurisdiction if the committee is of the opinion that 
the suit is necessary to the adequate performance of the povrers 
vested in it or the duties imposed on it by the Constitution, 
resolution of the Senate, or other lav;." 

4. The plaintiffs Senator Sam J. Ervin, Jr., of North 
Carolina (Chairman), Senator Hov;ard H. Baker, Jr., of Tennessee 
(Vice Chairman), Senator Herman E. Talmadge.of Georgia, Senator 
Daniel K. Inouye of Hav/aii, Senator Joseph M. Montoya of New 
Mexico, Senator Edward J. Gurney of Florida, and Senator Lowell 
P. VJeicker, Jr., of Connecticut are duly designated members of 
the plaintiff Senate Select Committee on Presidential Campaign 
AcLivities. Each of the aforementioned members of the Select 
Con:iittee is sviing in his official capacity as a member of that 
Committee. 



545 



5. The defendant Richard M. Nixon is President o"f the 
United States and vras a candidate for that office in the 1972 
Presidential campaign and election. He is sued in both his 
official and individual capacity. 

Jurisdiction 

6. The jurisdiction of this Court rests on 28 U.S.C. 
§1331j granting to this Court "original jurisdiction of all 
civil actions wherein the matter in controversy exceeds the sura 
or value of $10,000, exclusive of interest and costs, and arises 
under the Constitution, laws, or treaties of the United States." 
This case arises under the Constitution of the United States. 
The matter in controversy exceeds, exclusive of interest and 
costs, the sum of ten thousand dollars. 

7. The jurisdiction of this Court further rests on 

28 U.S.C. §13^5, granting to this Court "original jurisdiction 
of all civil actions, suits or proceedings commenced by the 
Uni^-ed States,..." and on Article III of the Constitution of the 
United States, vesting in this Court jurisdiction over "Con- 
troversies to which the United States /is/ a Party," The 
plaintiff Select Committee is authorized to bring this suit 
"on behalf of and in the name of the United States" by virtue 
of S. Res, 262, 

8. The jurisdiction of this Court further rests on 

28 U.S.C. BI36I, granting to this Court "original jurisdiction 
of any action in the nature of mandamus to compel an officer or 
employee of the United States or any agency thereof to perform 
a duty owed to the plaintiff." 

9. The jurisdiction of this Court further rests on the 
A:Iiriinistrative Procedure Act, 5 U.S.C. o701-706, giving this 
Court jurisdiction to remedy any "legal v/rong" suffered by the 
plaintiffs as the result of Presidential action for v;hich no 



T^.QRR n _ 7d - T^t 1 - '^fi 



546 



4 - 



adequate revievf proceeding is otherwise available. 

10. In order to aid and supplement the exercise of this 
Court's jurisdiction under the foregoing sections of the United 
States Code and the United States Constitution, the plaintiffs 
invoice the authority of this Court to render declaratory judg- 
ments and grant other relief under 28 U.S.C. 8i 2201 and 2202, 
and to issue "all writs necessary or appropriate in aid of... 
/"its/ jurisdictio^n/ and agreeable to the usages and princi- 
plos of law" under 28 U.S.C. §1651. 

Stat e ment of Facts 

11. By virtue of Sec. 3 (a) (5) of S. Res. 60, the plain- 
tiff Select Committee is empov/ered 

"...to require by subpena or order any department, 
agency, officer, or employee of the executive branch 
of the United States Government, or any private per- 
son, firm, or corporation, or any officer or former 
officer or employee of any political committee or 
organization to produce for its consideration or for 
use as evidence in its investigation and study any 
books, checks, canceled checks, correspondence, 
communications, documents, papers, physical evidence, 
records, recordings, tapes, or materials relating to 
any of the matters or questions it is authorized to 
investigate and study vjhich they or any of them may 
have in their custody or under their control;..." 

12. Pursuant to this section, the plaintiff Select Com- 
mittee, on July 23, 1973i addressed tv;o subpenas duces tecum, 
signed by its Chairman, to "President Richard M. Nixon, The 
White House, VJasliington,D.C.," v.'hich sought specified material 
within the defendant President's sole possession, custody or 
coatrol. Both subpenas v/ere duly served on that date. The 
tv.o subpenas, v?ith their proof of service, are attached hereto 
as Exhibits C and D. 

13. The subpena appended as Exhibit C directed the defend- 
ant President to make available to the Select Committee certain 
specified electronic tapes that recorded personal conversations 



547 



-5- 



"betv/een President Nixon and John Wesley Dean, III, discussing 
all ege d criminal acts occurlng in connection v/ith the Presid- 
ential election of 1972 which the Committee is authorized to 
investigate pursuant to Senate Resolution 6o." /Emphasis 

added7 

14. The subpena appended "as Exhibit D directed the 
defendant President to make available to the Select Committee 
documents and other materials "relatin^^ directly or indirectly 
to /an/ attached list of individuals and to their activities, 
participation, responsibilities or involvement in any alleged 
crimin al acts related to the Presidential election of 1972 
v/hich the Committee is authorized to Investigate pursuant to 
Senate Resolution 6o." /Emphasis added/ 

15. Both of the aforesaid subpenas were returnable on 
July 26, 1973, at 10 a.m. at the Caucus Room (Room 3l8), Old 
Senate Office Building. Neither on that date nor on any other 
date has the defendant President complied v.'ith the subpenas or 
otherwise made available to the Select Committee the materials 
demanded by the subpenas. The defendant President's refusal 

to comply with the subpenas vms announced in a letter of July 25j 
1973, v/hich v/as addressed to Senator Sam J. Ervin, Jr., Chair- 
man of the Select Committee, and received by him on July 26, 
1973. (Said letter is appended hereto as Exhibit E.) In jus- 
tification of his refusal to coronly v;ith the subpenas, the 
defendant President relied in part on reasons stated in letters 
dated July 6 and July 23, 1973, from him to the Chairman (which 
are appended herto as Exhibits F and G) . Thus the defendant 
President rjid v.'illfully and intentionally refuse to cornply v;ith 
either subpena, in '-hole or in part. 

16. At no time has the defendant President r.ioved in this 



548 
^ -6- -' ■. 

Court or any other Court to quash, modify or narrovf the scope 
of either su'opena. 

17. At no time has the defendsint President denied that he 
has the sole possession, custody and control of all the materials 
requested in the aforesaid subpenas or denied that he is capable 
of submitting those materials to the Select Committee in com- 
pliance there\-/ith. In a letter dated July 23, 1973^ to the 
Chairman of the Select Committee, the defendant President 
stated that "the tapes, which have been under my sole personal 
control, vjill remain so." ( See Exhibit G, appended hereto.) 

18. The electronic tapes and other materials sought by 
the aforesaid subpenas, which relate to alleged criminal acts 
in connection v/ith the Presidential campaign and election of 
1972, are relevant to the subject matters of the Select Commit- 
tee's investigation pursuant to S. Res. 60. VJith respect to 
the tapes, the defendant President, in his letter dated July 23, 
1973j to the Chairman of the Select Committee (Exhibit G here- 
to), has conceded the relevance of those tapes to the Select 
Committee's investigation, stating: 

"The fact is that the tapes would not finally settle the 
central issues before your Comraittee. Before their exis- 
tence became publicaly knovin, I personally listened to 
a number of them. The tapes are entirely consistent vfith 
vjhat I knov; to be the truth and what I have stated to be 
the truth. Ilov/ever, as in any verbatim recording of in- 
formal conversations;, they contain comments that persons 
with different perspectives and motivations vjould inevit- 
ably interpret in different ways." 

Moreover, sv/orn testimony of John V/esley Dean, III., and 

H. R. Ilaldeman before the Select Committee has demonstrated 

that the subject matter of the five specified conversations 

falls v;ilhln the investigatory jurisdiction of the Select 

C(3i,i:nittee. (See Exhibit H hereto.) Furthei more, the defendant 

President, r.cting through his Special Counsel, has i-evealed alleged 



549 



-1- ^ ■ ■ 

facts demonstrating that the subject matter of these conver- 
sations is within the Select Committee's jurisdiction. (See 
Exhibit I hereto.) 

Cause of Action 

19. The defendant President's refusal and failure to 
make available the electronic tapes and other materials in 
response to the Select Committee's lawfully issued subpenas 
are unlav/ful, unwarranted and in breach of his legal duty 
to respond to and to comply with such subpenas. 

20. The defendant President's refusal and failure to 
make available said electronic tapes and other materials 
cannot be excused or justified by resort to any Presidential 
power, prerogative or privilege. 

21. If there be any doctrine of Presidential power, 
prerogative or privilege that protects materials in the 
possession, custody or control of the President, such a 
doctrine does not extend to the protection of materials 
relating to alleged criminal acts and thus cannot justify 
the refusal of the defendant President to respond to or 
comply v/ith the two subpenas. 

22. If- there be any Presidential pov;er, prerogative 
or privilege that renders confidential and protects 
materials in the possession, custody or control of the 
President, that confidentiality has been breached and the . 
alleged po;/er, prerogative or privilege has been waived 
in regard to certain, if not all, of the materials sought 
by the Select Committee's subpenas because the defendant 
President has himself partially revealed the contents 

of these materials and has permitted his agents and 

liubord Lnates, both present and past, to reveal portions 

or versions of these materials. The breach of confidentiality 



550 



- 8 - 



and the waiver of any alleged Presidential power, prerogative, 
or privilege are the result of the following actions (among 
otherr) : 

(a) The defendant President's statement of May 22, 

1973, that: 

"/ E/xecutive privilege will not be invoked ••• 
as to any testim.ony concerning possible 
criminal conduct or discussiois of possible 
criminal conduct, in the matters presently 
under investigation, including the Watergate 
affair and the alleged cover-up." 

(The defendant President's entire statement of this date is 

appended as Exhibit J.) 

(b) The communications by the defendant President and 
his agents asserting that the defendant President would not 
invoke executive privilege or the attorney client privilege 

in regard to the testimony of certain present and former aides 
before the select Committee. (See, e.g.. Exhibit K hereto.) 

(c) The communications by the defendant President's 
counsel to the Select Committee purporting to summarize cer- 
tain Presidential meetings and telephone conversations with 
John Wesley Dean, III, which are the subject of Exhibit I. 

(d) The defendant President '6 action in turning over 
certain of the tapes now under subpena to H. R.Haldeman, a 
private citizen, who v/as j.nstructed by the defendant President 
that he could listen to them. 

23. The investigation of the plaintiff Select Committee 
is a continuing one, for which the subpenaed electronic tapes 
and other materials are vitally and immediately needed if the 
Select Conmittee's mandate and responsibilities under S. Res. 
60 are to be fulfilled. The defendant President's continuing 
refusal and failure to comply with the Select Committee's 
lawful subpenas are irreparably injuring the v/ork of the Select 



551 



-9- 



Committee and the interests of the United States on v;Kose 
behalf and in whose name the Select Committee sues. There is 
no remedy at lav; adequate and appropriate in the present cir- 
cumstances to the resolution of this controversy, v/hich is of 
v;ldespread public interest and concern, and relief through 
injunction and/or mandamus is therefore in order, 

24. This case presents an actual controversy and is there- 
fore appropriate for declaratory and other relief pursuant to 

28 U.S.C. §§2201 and 2202. 

25. The public interest in, and need for, the svrift com- 
pletion of the functions of the Select Committee and the unique 
and critical Constitutional considerations raised by the ections 
of the defendant President warrant expedition of this action 

at all stages and prompt resolution of the dispute. 

Prayer 

V/herefore, the plaintiffs pray that: 

1. This Court issue a declaratory judgment stating that 

(a) The tv;o subpenas duces tecum were lawfully 
issued by the plaintiff Select Committee, were lavjfully served 
upon the defendant President, and must therefore be responded 
to, and complied v;ith, by the defendant President. 

(b) The defendant President may not refuse to 
respond to, or comply v;ith, said subpenas on the basis of any 
claim of separation of powers, executive privilege. Presidential 
prerogative or other\.'ise. 

(c) The defendant President, by his actions in 
revealing, and in permitting others to reveal, the subject 
matters of certain of the materials sought by the subpenas 
has breached the confidentiality of those materials and has 
v.'aived any claim to the applicability of doctrines of separation 



552 



-10- 



'' > 



of povjers, executive privilege or Presidential prerogative 
respecting those materials. 

2. This Court, if such be deemed necessary, issue 
to the defendant President (a) a writ of mandamus and/or 
a mandatory injunction, if it be determined that he is 
withholding the subpenaed materials in his official capacity, 
or (b) a mandatory injunction, • if it be determined that 

he is withholding the subpenaed materials in his personal 
capacity, directing him to make available to the plaintiff 
Select Committee all materials designated i:i the subpenas. 

3. This Court award the plaintiffs such other and 
further relief as may be deemed just and equitable under the 
circumstances. ^^ — . 

Respectfully submi^;t^d. 




Rufus /Edmisten 
Deputy Counsel 



Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 

Washington, D, C. 
Of Counsel 

Arthur S. Miller 

Chief Consultant to 
the Select Committee 
V^ashington, D. C, 

Of Counsel 



James Hamilton 
Assistant Chief Counsel 

%M:-^.j, J. f/U 

William T. Maytori , 
Assistant Counsel L 




Rona"ld~D. Rol:unda 
Assistant Counsel 

United States Senate 
V/ashington, D. C, 20510 
Telephone Number 225-05^1 



553 



'HIBIT A 



93d congress 
1st Session 



S. RES. 60 



IN THE SENATE OF THE UNITED STATES 

February 5, 1973 

Mr. Ervin (for himself and Mr. Mansfield) submitted the following resolu- 
tion; which was ordered to be placed on the calendar. 

February 7, 1973 
Considered, amended, and agreed to 

[Omit the part struck through and insert the paxt printed in italic] 



RESOLUTION 

To establish a select committee of the Senate to conduct an 
investigation and study of the extent, if any, to which 
illegal, improper, or unethical activities were engaged in l)y 
any persons, acting individually or in combination with 
others, in the presidential election of 1972, or any campaign, 
canvass, or other activity related to it. 

1 Resolved, 

2 Section 1. (a) That there is hereby estabUshed a 

3 select committee of the Senate, which may be called, for 

4 convenience of expression, the Select Committee on Presi- 

5 dential Campaign Activities, to conduct an investigation and 

6 study of the extent, if any, to which illegal, improper, or 

7 unethical activities were engaged in by any persons, acting 

VII— O 



554 



2 

1 either individually or in combination with others, in the 

2 presidential election of 1972, or in any related c^impaign or 

3 canvass conducted by or in behalf of any person seeking 

4 nomination or election as the candidate of any political party 

5 for the office of President of the United States in such elec- 
G tion, and to determine whether in its judgment any occur- 

7 rences which may be revealed by the investigation and stud}' 

8 indicate the necessity or desirability of the enactment of new 

9 congressional legislation to safeguard the electoral process 

10 by which the President of the United States is chosen. 

11 (b) The select committee created by this resolution shall 

12 consist of #ve seven Members of the Senate, three four of 

13 whom shall be appointed by the President of the Senate 
1^ from the majority Membei's of the Senate upon the recom- 
1^ mendation of the majority leader of the Senate, and two 
^^ three of whom shall be appointed by the President of the 
^"^ Senate from the minority Members of the Senate upon the 
^^ recommendation of the minority leader of the Senate. For 
^^ the purposes of paragraph 6 of rule XXV of the Standing 
^^ Pules of the Senate, service of a Senator as a member, chair- 
man, or vice chairman of the select committee shall not be 

taken into account. 
23 

24 



(c) The select committee shall select a chairman and 
vice chairman from among its members, and adopt rules of 



25 



procedure to govern its proceedings. The vice chairman shall 
preside over meetmgs of the select committee during the 



555 



3 

1 absence of the chairman, and discliarge such other responsi- 

2 bihties as may be assigned to him by the select connnittee or 

3 the chairman. Vacancies in the membershi]) of the select com- 

4 mittee shall not affect the authority of the remaining mem- 

5 bers to execute tbe functions of the select committee and 

6 shall be filled in the same manner as original ajijiointments 

7 to it are made. 

8 (d) A majority of the members of the select connnittee 

9 shall constitute a quorum for the transaction of business, but 

10 the select committee may fix a lesser number as a quorum 

11 for the purpose of taking testimony or depositions, 

12 Sec. 2. That the select connnittee is authorized and 
i:'> directed to do everything necessary or aj^propriate to make 
l-j. the investigation and study sjiecifii'd in section 1 (a). With- 

15 out abridging or limiting in any way the ;uithority conferred 

16 upon the select committee l)y the preceding sentence, the 

17 Senate furtlier expressly authorizes and directs the select 

18 committee to make a com])lete investigation and study of the 

19 activities of any and all ])eis()ns or groups of ])ersons or orga- 

20 nizations of any kind which have any tendency to reveal the 

21 full facts in respect to the following matters or (piestions: 

22 ( 1 ) The breaking, entering, and bugging of the 

23 headquarters or offices of the Democi'atic National Com- 

24 mittee in the Watergate Building in Washington, District 

25 of Columbia; 



556 



4 

1 (2) The monitoring by bugging, eavesdropping, 

2 wiretapping, or other surreptitious means of conversa- 

3 tions or communications occurring in whole or in part in 

4 the headquarters or offices of the Democratic National 

5 Committee in the Watergate Building in Washington, 

6 District of Columbia ; 

7 (3) Whether or not any printed or typed or written 

8 document or paper or other material was surreptitiously 

9 removed from the headquarters or offices of the Demo- 

10 cratic National Committee in the Watergate Building in 

11 Washington, District of Columbia, and thereafter copied 

12 or reproduced by photography or any other means for 

13 the information of any person or political committee or 

14 organization ; 

15 (4) The preparing, transmitting, or receiving by 

16 any person for himself or any political committee or 

17 any organization of any report or information concern- 

18 ing the activities mentioned in subdivision (1), (2), 

19 or (3) of this section, and the information contained in 

20 any such report ; 

21 (5) Whether any persons, acting individually or 

22 in combination with others, planned the activities men- 

23 tioned in subdivision (1), (2), (3), or (4) of this 

24 section, or employed any of the participants in such 

25 activities to participate in them, or made any payments 



557 



5 

1 or promises of payments of money or other things of 

2 value to the participants in such activities or their fani- 

3 iUes for their activities, or for concealing the truth in 

4 respect to them or any of the persons having any con- 

5 nection with them or their activities, and, if so, the 

6 source of the moneys used in such payments, and the 

7 identities and motives of the persons planning such ac- 

8 tivitics or employing the participants in them; 

9 (6) Whether any persons participating in any of 

10 the activities mentioned in subdivision (1), (2), (3), 

11 (4) , or (5) of this section have been induced by brib- 

12 ery, coercion, threats, or any other means whatsoever 

13 to plead guilty to the charges preferred against them in 
I't the District Court of the District of Columbia or to 
15 conceal or fail to reveal any knowledge of any of the 
IC activities mentioned in subdivision (1), (2), (3), 

17 (4)^ or (5) of this section, and, if so, the identities 

18 of the persons inducing them to do such things, and the 

19 identities of any other persons or any committees or 

20 organizations for whom they acted; 

21 (7) Any efforts to disrupt, hinder, impede, or sabo- 

22 tage in any way any campaign, canvass, or activity con- 

23 ducted by or in behalf of any person seeking nomination 

24 or election as the candidate of any political party for the 

25 office of President of the United States in 1972 by in- 



558 

6 

1 filtrating any political conunittee or organization or liead- 

2 quarters or offices or home or whereabouts of the person 

3 seeking such nomination or election or of any person 

4 aiding him in so doing, or by bugging or eavesdropping 

5 or wiretapping the conversations, communications, 

6 plans, headquarters, offices, home, or whereabouts of the 

7 person seeking such nomination or election or of any 

8 other person assisting him in so doing, or by exercising 

9 surveillance over the person seeking such nomination or 

10 election or of any person assisting him in so doing, or by 

11 reporting to any other person or to any political coni- 

12 mittee or organization any information obtained by such 

13 infiltration, eavesdropping, bugging, wireta,pping, or 
It "^ surveillance ; 

15 (8) Whether any person, acting individually or in 

1(> ^ combination with others, or political committee or orga- 

17 nization induced any of the activities mentioned in sub- 

18 . division (7) of this section or paid any of the partici- 

19 . i)ants in any such activities for their services, and, if so, 
-<^ ; the identities of such persons, or committee, or organiza- 

21 tion, and the source of the funds used by them to procure 

22 or finance such activities ; 

23 (9) Any fabrication, dissemination, or publication 

24 of any false charges or other false infoiTnation having 

25 the purpose of discrediting any person seeking nomina- 



559 



7 

1 ' tion or election as the candidate of any political party 

2 to the office of President of the United States in 1972; 

3 (10) The planning of any of the activities men- 

4 tioned in subdivision (7), (8), or (9) of this section, 

5 the employmg of the participants in such activities, 

6 and the source of any moneys or things of value which 

7 may have been given or promised to the participants in 

8 such activities for their services, and the identities of 

9 any persons or committees or organizations which may 

10 have been involved in any way in the planning, pro- 

11 curing, and financing of such activities. 

12 (11) Any transactions or circumstances relating to 

13 the source, the control, the transmission, the transfer, 

14 the deposit, the storage, the concealment, the expendi- 

15 ture, or use in the United States or in any other coun- 

16 try, of any moneys or other things of value collected or 

17 received for actual or pretended use in the presidential 

18 ' election of 1972 or in any related campaign or canvass 

19 or activities preceding or accompanying such election 

20 by any person, group of persons, committee, or orga- 

21 nization of any kind acting or professing to act in behalf 

22 of any national political party or in support of or in 

23 opposition to any person seeking nomination or election 

24 to the office of President of the United States in 1972; 



560 



8 

1 (12) Compliance or noncompliance with any act 

2 of Congress requiring the reporting of the receipt or dis- 
H bursemcnt or use of any moneys or other things of value 

4 mentioned in subdivision (11) of this section; 

5 (13) Whether any of the moneys or things of value 

6 mentioned in subdivision (11) of this section were 

7 placed in any secret fund or place of storage for use in 

8 financing any activity which was sought to be concealed 

9 from the public, and, if so, what disbursement or expend- 

10 iture was made of such secret fund, and the identities 

11 of any person or group of persons or committee or or- 

12 ganization having any control over such secret fund or 

13 the disbursement or expenditure of the same; 

I'l (14) Whether any books, checks, canceled checks, 

15 communications, correspondence, documents, papers, 

16 physical evidence, records, recordings, tapes, or mate- 

17 rials relating to any of the matters or questions the select 

18 committee is authorized and directed to investigate and 

19 study have been concealed, suppressed, or destroyed by 

20 any persons acting individually or in combination with 

21 others, and, if so, the identities and motives of any such 

22 persons or groups of persons; 

23 (15) Any other activities, circumstances, materials, 

24 or transactions having a tendency to prove or disprove 

25 that persons acting either individually or in combination 



561 



9 

:l with others, engaged in any illegal, improper, or un- 

2 ethical activities in connection with the presidential 

3 election of 1972 or any campaign, canvass, or activity 

4 related to such election; 

5 (16) Whether any of the existing laws of the 

6 United States are inadequate, either in their provisions 

7 or manner of enforcement to safeguard the integrity or 

8 purity of the process hy which Presidents are chosen. 

9 Sec. 3. (a) To enable the select committee to make 

10 the investigation and study authorized and directed by this 

11 resolution, the Senate hereby empowers the select committee 

12 as an agency of the Senate ( 1 ) to employ and fix the com- 

13 pensation of such clerical, investigatory, legal, technical, and 

14 other assistants as it deems necessary or appropriate; (2) to 

15 sit and act at any time or ])]ace during sessions, recesses, and 

16 adjournment periods of the Senate; (3) to hold hearings for 

17 taking testimony on oath or to receive documentary or physi- 

18 cal evidence relating to the matters and questions it is author- 

19 ized to investigate or study; (4) to require by subpcna or 

20 otherwise the attendance as witnesses of any persons who 

21 the select committee believes have knowledge or information 

22 concerning any of the matters or (|Ucstions it is authorized to 

23 investigate and study; (5) to re(iuire by subpena or order 

24 any department, agency, officer, or employee of the execu- 

25 five branch of the United States Govermnent, or any private 



34-966 O - 74 - pt. 1 - 37 



562 



10 

1 person, firm, or corp<')atioii, or any officer or foniier officer 

2 or employee of any political connnittee or organization to 
'^ produce for its consideration or for use as evidence in its 

4 investigation and study any books, checks, canceled checks, 

5 correspondence, conmiunications, document, papers, physical 

6 evidence, records, recordings, tapes, or materials relating to 

7 any of the matters or questions it is authorized to investigate 

8 and study which they or any of them may have in their 

9 custody or under their control; (G) to make to the Senate 

10 any recommendations it deems appropriate in respect to the 

11 willful failure or refusal of any person to appear before it in 

12 obedience to a subpena or order, or in respect to the willful 
To failure or refusal of any person to answer questions or give 

14 testimony in his character as a witness during his appearance 

15 j^efore it, or in respect to the willful failure or refusal of any 
36 officer or employee of the executive branch of the United 

17 States Government or any person, firm, or corporation, or any 

18 officer or former officer or employee of any political committee 

19 or organization, to produce before the committee aiiy books, 

20 checks, canceled checks, correspondence, conmumications. 

21 dt>cunient, financial records, papers, physical evidence, rec- 

22 ords, recordings, tapes, or materials in obedience to any sub- 

23 pena or order; (7) to take depositions and other testimony on 

24 oath anywhere within the United States or in any other 

25 country; (8) to procure the temporary or intermittent serv- 



563 



11 

1 ices of individual consultants, or organizations thereof, in the 

2 same manner and under the same conditions as a standing 

3 committee of the Senate may procure such services under 

4 section 202 (i) of the Legislative Keorganization Act of 

5 1946; (9) to use on a reimbursable basis, with the prior 

6 consent of the Government department or agency concerned 

7 and the Committee on Rules and Administration, the serv- 

8 ices of personnel of any such department or agency; (10) to 

9 use on a reimbursable basis or otherv^ise with the prior con- 

10 sent of the chaimian of any other of the Senate committees 

11 or the chairman of any subcommittee of any committee of 

12 the Senate the facilities or services of any members of the 

13 staffs of such other Senate committees or any subcommittees 

14 of such other Senate committees whenever the select com- 

15 mittee or its chairman deems that such action is necessary or 

16 appropriate to enable the select conmiittee to make the in- 

17 vestigation and study authorized and directed by this resolu- 
13 tion ; (11) to have access through the agency of any mem- 

19 l)ers of the select commit/tee of a«y el ite invostigtiitory iw 

20 legal a ss i tj tants designated fey it or it*i chairman «¥ fh** rank - 

21 iftg minority member , chief majority counsel, minority coun- 

22 sel, or any of its investigatory assistants jointly designated by 

23 tlte chairman and the ranking minority member to any data, 

24 evidence, inforaiation, report, analysis, or document or papers 

25 relating to any of the matters or questions which it is author- 



564 

12 

1 ized and directed to investigate and study in the custody or 

2 under the control of any department, agency, officer, or eni- 

3 ployee of the executive branch of the United States (Jovern- 

4 ment having the power under the laws of the United States 

5 to investigate any alleged criminal activities or to prosecute 

6 persons charged with crimes against the United States which 

7 will aid the select committee to prepare for or conduct the 

8 investigation and study authorized and directed by this reso- 

9 lution; and (12) to expend to the extent it determines nec- 

10 essary or appropriate any moneys made available to it by the 

11 Senate to perform the duties and exercise the powers con- 

12 ferred upon it by this resolution and to make the investigation 

13 and study it is authorized by this resolution to make. 

14 (b) Subpenas may be issued by the select committee 

15 acting through the chainnan or any other member desig- 

16 nated by him, and may be served by any person designated 

17 by such chairman or other member anywhere within the 

18 borders of the United States. The chairman of the select 

19 committee, or any other member thereof, is hereby author- 

20 ized to administer oaths to any witnesses appearing before 

21 the committee. 

22 (c) In preparing for or conducting the investigation and 

23 study authorizc^d and directed by this resolution, the select 

24 committee shall be empowered to exercise the powers con- 

25 ferred upon committees of the Senate by section 6002 of title 



565 

13 

1 18 of the United States Code or any other Act of Congress 

2 regulating the granting of immunity to witnesses. 

3 Sec. 4. The select committee shall have authority to 

4 recommend the enactment of any new congressional legis- 

5 lation which its investigation considers it is necessary or 

6 desirable to safeguard the electoral process by which the 

7 President of the United States is chosen. 

8 Sec. 5. The select committee shall make a final report of 

9 the results of the investigation and study conducted by it 

10 pursuant to this resolution, together with its findings and 

11 its recommendations as to new congressional legislation it 

12 deems necessary or desirable, to the Senate at the earUest 

13 practicable date, but no later than February 28, 1974. The 

14 select conmaittee may also submit to the Senate such interim 

15 reports as it considers appropriate. After submission of its 

16 final report, the select committee shall have three calendar 

17 months to close its affairs, and on the expiration of such 

18 three calendar months shall cease to exist. 

19 Sec. 6. The expenses of the select committee through 

20 February 28, 1974, under this resolution shall not exceed 

21 $500,000, of which amount not to exceed $25,000 shall be 

22 available for the procurement of the services of individual 

23 consultants or organizations thereof. Such expenses shall be 

24 paid from the contingent fund of the Senate upon vouchers 

25 approved by the chairman of the select committee. 



566 



14 

1 The minority members of the select committee shall have one- 

2 third of the professional staff of the select committee (includ- 

3 imj a minority counsel) and such part of the clerical staff 

4 as may he adequate. 



567 






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estigation and stu 
which illegal, im 
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individually or in 

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campaign, canvas: 


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persons, acting 
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of 1972, or any 


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conduct an i 
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568 

S. RES. 262, 70th CONGRESS, 1st SESSION (1928) 

Resolved, That hereafter any committee of the Senate is 
hereby authorized to bring suit on behalf of and in the name 
of the United States in any court of competent jurisdiction 
if the committee is of the opinion that the suit is necessary 
to the adequate performance of the powers vested in it or the 
duties imposed upon it by the Constitution, resolution of the 
Senate, or other law. Such suit may be brought and prosecuted 
to final determination irrespective of whether or not the Senate 
is in session at the time the suit is brought or thereafter. 
The committee may be represented in the suit either by such 
attorneys as it may designate or by such officers of the 
Department of Justice as the Attorney General may designate 
upon the request of the committee. No expenditures shall be 
made in connection with any such suit in excess of the amount 
of funds available to the said committee. As used in this 
resolution, the term "committee" means any standing or special 
committee of the Senate, or any duly authorized subcommittee 
thereof, or the Senate members of any joint committee. 



569 



Exhibit C 

UNITED STATES OF AMERICA 
CONGRESS OF THE UNITED STATES 
SUBPOENA DUCES TECUM 

To: President Richard M, Nixon, The White House, Washington, D. C. 

Pursuant to lawful authority, YOU ARE HEREBY COMMANDED 
to make available to the SENATE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES of the Senate of the United 
States, on Thursday, July 26. 1973, at 10:00 o'clock a.m., at their 
conamittee room, 318, Old Senate Office Building, the following: 

Any and all original electronic tapes and recorded telephone 
messages of the below listed conversations or oral communications, 
telephonic or personal, between President NLxon and John Wesley 
DeanJLII, discussing alleged criminal acts occuring in connection with 
the Presidential election of 1972 which the Committee is authorized to 
investigate pursuant to Senate Resolution 60 including but not limited to 
the break-ins at the Democratic National Connmittee offices on or about 
May 27, 1972, and on or about June 17, 1972, and any efforts made to 
conceal information or to grant executive clemency, pardons or immunity 
and paynaents mad© to the defendants and/or their attorneys relating to the 
above incidents at the dates and times of the attached list o£ conversations: 



570 



September 15, 1972 (personal) 5:27 p.m. to6d.7p.m. 

February 28. 1973 (personal) 9:12 a.m. to, 10:23 a.m. 

March 13, 1973 (personal) 12:42 p. m, to 2:00 p.m. 

March 21, 1973 (personal) 10:12 a.m. to 11:55 a.m. 

and 5:20 p.m. to 6:01 p.m. 

Hereof fail not, as you will answer your default under the 
paixie and penalties in such cases made and provided. 



to serve and return. 



Given vmder my hand, by order of the 
.comimittee, this 23rd day of July, in the 
year of o\ir Lord one thousand nine hundred 
and seventy-three^' 



Chairman, Senate Select Connmittee on 
Presidential Campaign Activites 



571 



7L pji^sij^^jrl 






':••> 









XT/ 



572 



Exhibit 



UNITED STATES OF AMERICA 
CONGRESS OF THE UNITED STATES 
SUBPOENA DUCES TECUM 

To: President Richard M. Nixon, Th.e White House, Washington, D. C. 

P ur suant to lawful authority, YOU ARE HEREBY COMMANDED 
to make avaUable to the SENATE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES of the Senate of the United 
States, on Thursday, July 26, 1973, at 10:00 o'clock' a.m. , at their 
committee room, 318, Old Senate Office Building, the following: 

Any and all records, or copies of records including but not 
limited to, documents, logs, records, memoranda, correspondence, 
news summaries, datebopks, notebooks, photograph;s, recordings or 
other znaterials relating directly or indirectly to the attached list of 
individuals and to their activities, participation, responsibilities or 
involvement in any alleged criminal acts related to the Presidential 
election of 1972 which the Committee is authorized to investigate pursuant 
to Senate Resolution 60 including but not limited to, the break-ins of the 
Democratic National Conui^ittee offices on or about May 27, 1972 and on 
or about June 17, 1972, the surveillance, electronic or otherwise of said 
offices, and efforts nriade to conceal information or to grant executive 
clemency, pardons or immunity and payments made to the defendants 
and/or their attorneys relating to the above stated matters. 



573 



Hereof fail not, as you will answer your default under the 
pains and penalties in such cases made and provided. 

TO 'tLuiU 6 I . E^cJ 1^ /s fe A^ / L .^kH ? - JL ^iy yj.'^ </< 

to serve and return. 

Given under my hand, by order of the 
conrimittee, this 23rd day of July, in 
the year of our Lord one thousand nine 
hundred and seventy-three 



Chairman, Senate Select CorrfmLttee oi 
Presidential Campaign Activites. 




574 

Buchanan, Patrick J.' 
Butterfield, Alexander P, 
C a nvpb ell , John 
Caulfield, Jack 
Chap In, Dwight 
Colson, Charles 
Dean, John , 

Ehriichnian, John 
Fielding, Fred 
Haldeman, H^' Robert 
Higby, Larry 
Howard, Hichard 
Hunt, E;- Howard 
Kehrli, Bruce 
Krogh, Egil • • 
L.aRue, Frederick 
Liddy, G;'- Gordon 
Magruder, Jeb Stuart 



575 

MitcheU, Jolm 
Moore, Hichard A; 
Shumway, DeVan 
Strachan, Gordon 
Timmons, Willia.m 
Young, David . 
Ziogler, Kon 



/ 



576 



A- 









VJ 



AJcp thu 



^e. 









577 

THE WHITE HOUSE 
WASHINGTON 

JtQy 25, 1973 



Dear Mr. Chairman: 

White House cotmsel have received on my behalf the two 
subpoenas issued by you, on behalf of the Select Cozxunittee, 
on July 23rd. 

One of these calls on me to furnish to the Select Committee 
recordings of five meetings between Mr. John Dean and 
myself. For the reasons stated to you in my letters of 
July 6th and July 23rd, I must respectfully refuse to produce 
those recordings. 

The other subpoena calls on me to furnish all records of any 
kind relating directly or indirectly to the "activities, partici- 
pation, responsibilities or involvement" of 25 named individuals 
"in any alleged criminal acts related to the Presidential election 
of 1972. " Some of the records that might arguably fit within that 
stibpoena are Presidential papers that must be kept confidential 
for reasons stated in my letter of Jtily 6th. It is quite possible 
that there are other records in my custody that would be within 
the ambit of that subpoena and that I could, consistent with the 
public interest and my Constitutional responsibilities, provide 
to the Select Committee. All specific requests from the Select 
Committee will be carefully considered and my staff and I, as 
we have done in the past, will cooperate with the Select Conrimittee 
by making available any information and documents that can 
appropriately be produced. You will understand, however, 
I am sure, that it would simply not be feasible for my staff 
and me to review thousands of documents to decide which do 
and which do not fit within the sweeping but vague terms of 
the subpoena. 



34-966 O - 74 - pi. 1 - 38 



578 



Honorable Sam J. Ervin -2- 



It continues to be true, as it was when I wrote you on July 6th, 
that my staff is under instructions to cooperate fully with yours 
in furnishing information pertinent to your inquiry, I have 
directed that executive privilege not be invoked with regard to 
testimony by present and former mennbers of my staff concerning 
possible criminal conduct or discussions of possible criminal 
condxict. I have waived the attorney- client privilege with regard 
to my former Counsel. In my July 6th letter I described these 
acts of cooperation with the Select Committee as "genuine, 
extensive and, in the history of such matters, extraordinary. " 
That cooperation has continued and it w^ill continue. Executive 
privilege is being invoked only with regard to documents and 
recordings that cannot be made public consistent with the confi- 
dentiality essential to the functioning of the Office of the President. 

I cannot and will not consent to giving any investigatory body 
private Presidential papers. To the extent that I have custody 
of other documents or information relevant to the work of the 
Select Committee and that can properly be made public, I will 
be glad to jnake these available in response to specific requests* 



Sincerely, 




Honorable Sam J. Ervin 

Chairnnan 

Select Committee on Presidential 

Campaign Activities 
United States Senate 
Washington, D. C. 20510 



579 

THE WHITE HOUSE 
WASHINGTON 

The "Western White House 
San Clemente 

July 6, 1973 



Dear Mr. Chairman: 

I am advised that members of the Senate Select Committee 
have raised the desirability of my testifying before the 
Committee. I am further advised that the Committee has 
requested access to Presidential papers prepared or 
received by former members of nny staff. 

In this letter I shall state the reasons why I shall not testify 
before the Committee or permit access to Presidential 
papers. 

I want to strongly emphasize that my decision, in both cases, 
is based on nny Constitutional obligation to preserve intact 
the powers and prerogatives of the Presidency and not upon 
any desire to withhold information relevant to your inquiry. 

My staff is under instructions to co-operate fully with yours 
in furnishing information pertinent to your inquiry. On 
22 May 1973, I directed that the right of executive privilege, 
"as to any testimony concerning possible crinninal conduct 
or discussions of possible criminal conduct, in the naatters 
presently under investigation," no longer be invoked for 
present or former members of the White House staff. In 
the case of my former Counsel, I waived in addition the 
attorney-client privilege. 

These acts of cooperation with the Connmittee have been 
genuine, extensive and, in the history of such matters, 
extraordinary. 



580 



The pending requests, however, would move us from proper 
Presidential cooperation with a Senate Comrmttee to jeopardizing 
the fundamental Conetitutionai role of the Presidency. 

This I must and shall resist. 

No President could function if the private papers of his office, 
prepared by his personal staff, w^ere open to public scrutiny. 
ForiTiulation of sound public policy requires that the President 
and his personal staff be able to communicate annong thenaselvee 
in complete candor, and that their tentative judgnnents, their 
exploration of alternatives, and their frank comments on issues 
and personalities at home and abroad remain confidential. I 
recognize that in your investigation as in others of previous 
years, arguments can be and have been made for the identification 
and perusal by the President or his Counsel of selected documents 
for possible release to the Committees or their staffs. But 
such a .course, I have concluded, would inevitably result in 
the attrition, and the eventual destruction, of the indispensable 
principle of confidentiality of Presidential papers. 

The question of testimony by members of the White House 
staff presents a difficult but different problem. While notes 
and papers often involve a wide-ranging variety and inter- 
mingling of confidential matters, testimony cem, at least, be 
limited to matters within the scope of the investigation. For 
tins reason, and because of the special nature of this particular 
investigation, I have agreed to permit the unrestricted testimony 
of present and former White House staff members before your 
Committee. 

The question of my own testimony, however, is another matter. . 
I have concluded that if I were to testify before the Committee 
irreparable damage would be done to the Constitutional principle 
of separation of powers. My position in this regard is supported 
by ample precedents with which you are familiar and which need 



581 



3 - 



not be recited here. It is appropriate, however, to refer 
to one particular occasion on which this issue was raised. 

In 1953 a Committee of the House of Representatives sought 
to subpoena former President Truman to inquire about 
matters of which he had personal knowledge while he had 
served as President. As you may recall. President Truman 
declined to comply with the subpoena on the ground that the 
separation of powers forbade his appearance. This position 
was not challenged by the Congress. 

It is difficult to inaprove upon President Trumian's discussion 
of this matter. Therefore, I request that his letter, which ia 
enclosed for the Committee's convenience, be made part of 
the Committee's record. 

The Constitutional doctrine of separation of powers is 
fundamental to our structure of government. In my view, as 
in the view of previous Presidents, its preservation is vital. 
In this respect, the duty of every President to protect and 
defend the Constitutional rights and powers of his Office is 
an obligation that runs directly to the people of this country. 

The White House staff will continue to cooperate fully with 
the Committee in furnishing information relevant to its 
investigation except in those instances where I determine 
that meeting the Committee's demands would violate my 
Constitutional responsibility to defend the office of the 
Presidency against encroachment by other Branches. 

At an appropriate time during your hearings, I intend to 
address publicly the subjects you are considering. In the 
meantinne, in the context of Senate Resolution 60, I consider 
it my Constitutional responsibility to decline to appear personally 
under any circumstances before your Committee or to grant 
access to Presidential files. 

I respect the responsibilities placed upon you and your 
colleagues by Senate Resolution 60. I believe you cind 



582 



your Committee colleagues equally respect the responsibility 
placed upon me to protect the rights and powers of the 
Presidency under the Constitution. 

Sincerely, 



CS^u^^^ 



Honorable Sam J. Ervin, Jr. 

Chairnnan 

Select Committee on Presidential 

Campaign Activities 
United States Senate 
Washington, D. C, 20510 

Enclosure 



cc: Honorable Howard H. Bake'r 



583 

THE WHITE HOUSE 
WASHINGTON 



July 23, 1973 



Dear Mr. Chairman: 



I have considered your request that I permit the Committee 
to have access to tapes of my private conversations with a 
number of my closest aides. I have concluded that the 
principles stated in my letter to you of July 6th preclude me 
from complying with that request, and I shall not do so. 
Indeed the special nature of tape recordings of private 
conversations is such that these principles apply with even 
greater force to tapes of private Presidential conversations 
tlian to Presidential papers. 

If release of the tapes woxold settle the central questions at 
issue in the Watergate inquiries, then their disclosure might 
serve a substantial public interest that would have to be 
weighed very heavily against the negatives of disclosure. 

The fact is that the tapes would not finally settle the central 
issues before your Committee. Before their existence became 
publicly known, I personally listened to a number of them. 
The tapes are entirely consistent with what I know to be the 
truth and what I have stated to be the truth. However, as in 
any verbatim recording of informal conversations, they contain 
comments that persons with different perspectives and 
motivations would inevitably interpret in different ways. 
Furthermore, there are inseparably interspersed in them 
a great many very frank and very private comments, on a 
wide range of issues and individuals, wholly extraneous to 
the Committee's inquiry. Even more important, the tapes 
could be accurately understood or interpreted only by reference 
to an enormous number of other documents and tapes, so that 
to open them at all would begin an endless process of disclosure 
and explanation of private Presidential records totally unrelated 
to Watergate, and highly confidential in nature. They are the 
clearest possible example of why Presidential documents 
must be kept confidential. 



584 



Accordingly, the tapes, which have been xinder my sole 
personal control, will remain so. None has been transcribed 
or made public and none will be. 

On May 22nd I described my kno'wledge of the Watergate 
matter and its aftermath in categorical and unambiguous terms 
that I know to be true. In my letter of July 6th, I informed 
you that at an appropriate time during the hearings I intend 
to address publicly the subjects you are considering. I still 
intend to do so and in a way that preserves the Constitutional 
principle of separation of powers, and thus serves the interests 
not just of the Congress or of the President, but of the people. 

Sincerely, 




Honorable Sam J. Ervin, Jr. 

Chairman 

Select Committee on Presidential 

Campaign Activities 
United States Senate 
Washington, D. C. 20510 



585 



Exhibit H 



This Exhibit consists of excerpts from the s-worn testimony of 
John Wesley Dean, in, and H, R. Haldeman before the Select Committee 
at public session. The relevant portions of the transcript are marked 
with brackets; the dates of the conversations involved are added to the 
right-hand margin. 



7 



n 



586 

(D£;m)| 

dfii>3 ' H 11 2229 



i docuaent was forwardod diroGt\\Yj)to, or revicw.2d by, tho 

2 President. I later learned fchattlie President Was pleased 

3 and weintad a full follow-up on tiiQ itams in tlio memorandum. 

4 The markings on the mejno are Mr. Halderaaii ' s MarkinCjG. 
g It was also about this tinta, lator July ~ oarly 
c septefsber, that 1 iGarnad during a raeeting in Mitchell's offices 

that Mr. RhoQUMir KcPhao was having private discussions witJi 
Q Judge Richey regarding the civil ouit filed by the 

Dosnocrats. I believe this fact was known to ^5r. Mitoholl, 
Mr. LaRue, Paul O'Brien, and Ken Pailcinaon (and later again by 



J J McPhea) , that Judge Richay was going to bs helpful v;henever 



ho could, X subsequently ta3Jced with Mr» McPhee about this. 



>3 as late as March 2nd of this year, when he told me he was 

14 going to visit the Judge in the Judge's rose garden over tlie Sept'. 

15 
.ir weekend to discuss an aspect of the case. 



16 
J7 
\Q 

I 

2'i 
22 
23 

2A 



On Septeaiber 15th the Justice Departiaent announced the 

T 

handing down of the seven indictments by tho Federal Grand 
Jury investigating the Watergate. Late that afternoon I 
received a call requesting ir.e to ccTiie to the President's 
oval office. When I arrived at the oval office I found 



587 



2230 15 



^ 



e 






t3 



t 

16 



17 

19 



2i 



23 

?.4; 

i 

25] 



Haldemeui and the Presldant. a'ho President asked mo to sit 

down. Both men appeared to be in vary good spirits and my 
^ 'reception was very v^arm ajid cordial. The President then told 

ma tliat Bob — referring to HaldGnitin — had kept him posted on 
5 my handling o£ the Ifatergatc case. The President told ms I 

had done a good job and he appreciated how difficult a task 
y it had been and tiie President was pleased that tl^e case had 
Q stopped with Liddy. Z re£;ponded that I could not t&Jce credit 
Q[ because others had done aucb aore difficult things than 

l; 

]0< X had done. As the President diBcussed the present status of 
the situation I told hiis that all that I had been able to 

]2' do was to contain the caso and assist in keeping it out of 

the &]hite House. I also told him that there was a long way to 

{4; go before this matter would end and that X certainly could ina>:('i 

]5 no assurances that tho day would not ccsia when this matter 
would start to unravel. 

Sarly in our conversation tiio President said to mo that 
former FBX Director Hoover had told him shortly after he had 
assumed office in 1969 that his ccisipaign had been bugged in 



2Q' 1952. The President said that at sose point we should got tho 



facts out on this and use this to counter ti:ie problems that 



2, ' we v;era encountering . 



The President aKkod me when the criminal oase would cc.;:ie 
to trial and would it start before the election. 1 told tho 
President that I did not know. I seid that the Justice 



588 



1 

2 

3 
4 
5 


7 

9 
10 
11 
I^ 
13 
14 
IS 
16 
17 
IS 
19 
20 
2! 
22 
Z'i 
24 
25 



15 

Dopcrtment had held off as long as possible the return of 
the indictJBontc, but much would depend on which judge got 
tho cuse. The Prosidsnt said that ho certainly hoped that the 
cuoe would not coao to trial before the election. 

Tho President then aslccd ma about the civil caeca that 
hcd been filed by tho DSaaocratic National Conaaittce and the 
cor-jsa caueo case and about tho counter suits that we had file< 
I 03 Id him that tho lawycrc at the Re-Election Conunitteo 
woro handling thooo casen a;id tJiat U.ey did not see tl-.Q covnmon 
cauoQ ouit ao any real problem before the election because 
thoy thought they could keep it ti-id up in discovery 
proceedingc- I then told tho President that the lawyers at 
tho Re-Eloction Comaltteo ware vary hopeful of slowing down 
tho civil suit filed by the Damocratic National Conanittee 
because they had been making ex parte contacts with the judge 
handling tho case and tho judge was vor^' tindorstanding and 
trying to cccoanaodato their probieins- The President waa ploaci/d 
to hear this and responded totthe effect that "Well, that's 
^helpful." Z &l80 recall explaining to the President about the 
suits that the Ra-Election Ccn»Tittee lav/yers had filed agaiaot 
the Democrats as part of thoir counter-offensive. 

Thera v/as a brief discussion about the potential 

hearings before tJie Patmon Cotomittee. The President askod mo 

I 

yih&t we were doing to deal with the hearings and I reported 

i 

that Dick Cook, who had once workod on Patraan's Coiwr.ittee 



I 



589 



15 



7 



10 
P 
12 
■3 
14 
'5 
T6 
)7 
18 
19 
20 
21 
22 
2.^ 
^4 



2232 



ofcaff , was working on the probleir.. The President indicated 
that Bill Timons should stey on top of the hearings, that 
we did not need the hearings bofore the election. 

The conversation then moved to the press coverage of the 
I Watergate incidont and how the press was really trying to laake 
this into a major campaign issue. At one point in this 
converaaUon I recall the President tolling me to keep a 
8 I good list of the press people giving us trov>ble, because we 
« I will make life difficult for thew after the cslection. The 
conversation then turned to the use of the Internal Kfevenue 
service to attack our eneaies. I recall tailing the President 
that wa had not niade much use of this because tJ^e VThita House 
did not have the clout to have it done, that the Internal 
Revenue Scrvioa was a rather democratically-oriented buraaucra 
and it would be very dangerous to try any such activities. 
The Prealdent- seemed somewhat annoyed and said that the 
-Dcaaocratic Administrations had used this tool well and after 
the election we would gat people in these agencies who would 
bo reaponoivo to the White House requirements. 
! The conversation then turned to the President's post- 
election plans to replace people who wore not on our team in 
all the agencies. It was at this point that Haldeman, I 
remember, started taking notes and he also told the President 
that he had been developing infonaation on which people ohoulc^ 



3y' 






590 



3 
/, 

5 

6 
7 
6 
o 

n 

12 
13 
U 
15 
16 
17 
10 
10 

20 

2t 

22 

23 

24 



Sept. 
15 



2233 
evaral days after »y meeting witli tho Proaident, 1 vfas 
talking to Dan Kingsly, who v?as in charge ol' developing tha 

liet for Haldenan aa to peoplia who nhould bs j:e;uovod after 

1 
the election. I told Kings ly that this matter had come up 

durir.g niy conversation with the President and he said he had 

wondered what had put now life into his project as he had 

received several calls from Higby about the status of his 

project within the last few days. The meeting ended with a 

conversation with tho President about a book 1 was reading. 

I left the meeting with the ispreaslon that the President; i 



I 



I 



was well aware of what had been going on regarding the success 
of keeping the White House out of the Watergate scandal and 
I also had expressed to him my concern that I was not confiden 
that the cover-up could be maintained indefinitely. 

Z would ne^ct like to turn to the White House efforts to 
block the Patman Cosunittee hearings. As e2irly as mid-August, 
1972, tho White House learned through the Congressional 
relations staff that an investigation was being conducted by 
the staff of the House Banking and < Oirrency Committee, 
under the direction of Chairman Patirian, into many aspects of 
the Watergate incidtsnt. The focus of the investigation at the 
outset was the funding of the Watorgato incident, and other 
possible illegal funding that may have involved banking 
violations. The White House concern waa two-fold: First, the 

torn) ) i<i;ii Vi<ul<1 linvo to'iultoil tn hkii.i .'Mlv<>rni> |ii«»- c1««i1 I <>u 



591 



23X5 



I 
:i 

•2 

13 

'4 

iS 

IS 

i7 

13 
\0 
20 
21 
22 
23 



uhat, had already been report^^a to roe by Haldesian, tiiac Ue hi^d 
told Sonsitor Bcikar that he wculd not permit Vvhits House st&f f 

to sppear bofora the Select CctTraittee, rathcjr he would only 

i 

pcjrsaAt tho taking o£ vfrittcn interrcKjatorios . ila asked ma it 
I agreed with this and I said that written intarrogatoriee 
tfsrQ Eosiethiag that could be handled whereas appoarances niight 
create serious problems. He told rce he would never let 
Haldemnn and Ehrlichnan go to the Hill. He also told ice that 
Senator Gumey would be vary friendly to the White Souse and 
that it would not be necessary to contact him because the 
President said Senator GTirncy v;auld kriow t.'hat to do an his cwn. 
On the way out of his office ha told rao I had done an excellent 
job of dealing with this matter during the casrpaign; that it h«kij'> 
been the only issue that lacGovem had had and the Oaaiocrats 
had tried to make uooething out of it but to no avail. I told 
his as we were walking together out of the office that X had 
only oanagod to contain the catter during the caiapaign, but 
Z was not sure it could be contained indefinitely. He then 
told me that we would have have to fight back and he was conficl<|:nt 
that X could do the job. 

The meeting on February 28th with the President. 

I had received word before X arrived at my office that 

the President wanted to see i%c. He asked ine if X had talked to 

? 
the Attorney General regarding Senator Baker. I told hlia that 

th»> Ate oriioy OrtiJwr«l >inu nx-nli 1 ii'/ <■<> iu«Mi.r, vMtli liitt h ,'!i»iii>> or. 



eb. 
28 



592 



I 



s 

10 

11 

12 
13 
14 

15 

iS 

17 

!S 

19 

20 

25 ; 

22, 

I 
23- 

I 
I 

24; 



Feb. 

28 
23X6 



Ervia and Senator Baker, but tliiit a meeting data had not yet 
bcca firzaed up. I told him tJiat I J^r.aw it was the Attornoy 
Ganaral'o wish to turr. ovor tlie FBI i«vc:Btigatio:i and tlia 
President said that he did not thin]; wo should, but usked me 
uhat Z thought of the idaa. I told hia that I did not think 
that thcra waa much damaging inforsiuition in the FBX investiga- 
tion, although there could be sonio bad public relations from 
it. He told ma to thinlt about tiiis natter. He also said that 
ho had roed in the corning paper about the Vesco case and 
aakod isg) what part, if any, his brother Ed had had in the 
matter. I told him what I knev7 of hia brother's involveaxsnt , 
which was that ho was an innocent agent in the contribution 
trancactlon. Wc then diccussed the leak to rCxme ztiagazine 
of tho fact that the I'iihitQ Rouce had placed wiretaps on 
nowsQian and White House staff people. The President asked 
me if I knew how this had leaked. X told him that X did not; 
that X know several people were avaro of it, but X did not 
know any who had leaked it. He asked me who knew about it. X 
told him that Mr. Sullivan had told ise that ha thought that 
Director Hoover had told somebody about it shortly after it 
happened because Hoover was against it and that Sullivan said 
that ha had heard that this information had gone to Governor 
Rockefeller and in turn had come back from Governor Rockefelloz 
to Dr. Kissinger. We then talked about the executive privilege 
ot«t«rmcnt and tho ProMidoiit: oK|ir«-»iii<i<l hln (lc«lro to <iOt t.hu — 



t I 



--A 



593 



2317 



[!— 



J 

2! 

3 

5 
6 
7 

a 



9 
10 
11 

12 
13 
14 
15 
IS 
17 
18 
18 
20 

21 

22 
?3 
24 



ctabSsioDt out woll In advance olf the VJa^ei^^ainG hearings no 
■dhat it did aot eppaor to ba in responaa to the VJatergato 
hearings. U& also diocuaced Hr.Molieaiiot'i's interest in tha 
?its(;<3rald case, and he ashed sie to look ir4to tho natter for 

tir. MollGnho£f. Bofore depsirting his o£fico,hc agaia raiced 

I 
! 

■ihQ QCttGr th&t I should report diroctly to hisi and not throug^i [ 

Haldoauin cad Ehrlicl-unan. Z told hici tl^at I thought he should |i 

i 

Icaow tliat I waa clso involved -the poot-JT.U3e 17th activitiee j 

regarding Wateryata. 1 briefly described to him why X thovight | 

I had legal probloEu?, in chat I had besn e* conduit for many j' 

r 

of tha decisions that wora mado sxid, th^trafora, cculd ba [\ 

5; 

involved in an obstructicjri of justice. He would not accept oiy {, 
analysis and didnot wont ma to got into it in £iny detail other 
than what X had just related. Ha reassured cie not to worry, 
that X had no legal prcbleuis. (Z raised this on another 
occasion with the President, when Dick Kocre was present.) 

Meeting of March 1st: "■ 

The first Rteeting on this date and the afternoon meeting 
which occurred on March let, related to preparing the 
President for his forthcosaing presa conference. The President 
acked ISO a nuinber of guestiono about the Gray ncraination hearir.^^ 
and facts that had come out during those hearings. In particuls.r 
X can recall him stating tiiat there should be no problem with 
the fact that I had recoivttd the FSX reports. He said that I 

v.'aM 4!Oii«l>iO<.Jln> nu luvoutlunt lou ;<u' )\\m rt«nl Ml.jit .tl". VI«1>«1U Lw 



Feb, 
28 



34-966 O - 74 - pt. 1 - 39 



I 

2 
3 
4 
S 
6 
7 

C 

t 
I 

I 

I 
fO 

III 
i 

j 
jl3 

15 
1C 

1 10 



19 
20 

I 2, 
22 

I 23 



594 



dfrol 2323 

The phono conversation of March 10th. The Proaidant 
called ma to tell me that he felt we should get the 
BxecutivQ privilege otatosnent out ijazacd lately; t^jat this 
should be done before I was called before the Senats 
Judiciary Coasjaittea in oonnoction with the Gray hearingc so 
tliat it would not appear that the otctemant on Executive 
privilege v/as in response to tlie action o'j the Senate 
Coamittee. 



Ma;r. 
131 



h 



The meeting of March 13th. This vjas a rather lengthy 
oootingf the bulk of which v;aa takori up by a diucus&ion about 
the Gray hearings and the fact that the Senate Ju<5iciary 
Coanmittea had voted to invite me to appear in connection with I j 
Gray's nomination. It was at this time we discussed the 
potential of litigating the matter of Executive privilege and 
thereby preventing anybody froio going before any Senate 
Coacaittea until that laatte^ was resolved. The President liked 
the idea very much, particularly when I mentioned to him that 
it might be possible that he could also claim attorney /client 
priviloga on ma so that the strongest potential case on 
Executive privilege would probably rest on the counsel to tho 
President. I told him that enviously, this area would have 
to be rascarchod. Ha told me tliat he did not want Halderaan 
end EhrlicluQon to go before tho Ervin hearings and that if we 
were litigating the matter on Daan, that no one would havo to 
^I'lionv, T«>vfn«xT 1.1>« oii<\ of (lio •.'<>i»v<i> mit (ou, v«> <|ol. Jjii.rj n 



1 



595 



H Ci*.**i^ 



r 



xTTi i^i Mar 



; t 



I 
is 

I 
7 

' e 

I 

so 

I 
12 

13 

14 

i 
15 

16 

17 

I 
18 

i 
19 

20 

21 

22 

i 



discussion of Watergate matters opacifically. 'I told 'r.ha 
President about the fact that there were money domixnds beiny 
made by the seven convictad dcfendeatts, and that the 
sentencing of these individuals was not far off. Xt v-aa 
during this conversation that Kaldentan carae into the office. 
After this brief interruption by Haldeman's coming in« but 
while he was still tliere., I told the President about tha fact 
that there was no money to pay th<jse individuals to aeot 
their demands. Be asked sie hov; much it would cost. I told 
him that I could only make an estimate that it might be as 
high as a million dollera or raore. Ke told sua that that 
was no problem, and he also looked over at Haldenun and 
repeated the sane statement. Ue tJian asked roe v;ho was 
demanding this money and I told him it v^as principally cosxir.g 
froia Hunt through his attorney. The Presidant then referred 
to the fact that Hunt had boen pironisod Executive cleitioncy. 
Ue said that he had discussed tliis matter with Ehrlichiaari 
and contrary to instructions that Ehrlichmao had given Colson 
not to talk to the President about it, that Coleon had also 
discussed it with him later. He oxprostsed some annoyanca at 
the fact that Colson had also diBcusscd this matter with him. 
The conversation then turned back to a question froia the 
President regarding the :nonay that was being paid to the 
dofondants. Ue asked lae how this X'fas done. I told him I 
didn't know much about it oLhor thiin tho fact that tho i.iouoy 



^ 13 



I 



; / 



j 



596 



dfra3 • 2325 ^^* 

13 

~ ~ )" 

' was laundered so it could not be traced and then ther« ware 

sccrot deliveries, I told hiir. 1' waa learning about things I 

^ had never knovm before/ but the next time 1' would certainly 

I* be more knowledgeable. This coinrasnt got a laucjh out of 

p Baldan&n. The meeting ended on this note and there was no 

•Q further discusaion of the matter and it was left hanging just 

i 

.7 as I have described it. 

The loaetings on March 14th. The reeetinge whicli occurred 

on this day principally involved preparing the President 

10 for a fortlicoKiing press conference. I recall talking about 

ttl £:cocutive privilege and making Dean a test case in the 

52 courts on Executive privilege. The President said that he 

53 would like very much to do this and if the opportunity came 
i^ up in the press conference, he would probably so respond, 
t5 I also recall that during the meetings which occurred on this 

16 day, that the President was going to try to find an answer 

17 that would gat Zloglor off the hook of the frequent quastlons 
J8 asked him regarding the Watergate. Ke said tJiat he was going 

19 to say that he would take ao further questions on the Water- 

20 gate until the completion of the Ervin hearings and that 

21 Ziegler in turn could repeat the same statement and avoid 

22 i future interrogation by the press on tl\a sxibject, 

i 

23 The meeting on March 15th. It v;as late in the afternoon 

24 after the President's press conference that he asked Dick Nooro 
2i> and Z to co:no over to vinit with hl,T>. Ho wan in a vory 



597 



dfm7 



2329 



I 

2 
3 
4 
5 
6 
7 
8 
S 
10 

11 

(2 
IS 
14 

is; 

16 

17 

13 

19 

20 I 

21 

22 

2i 

24 

;•> 



Mar. 
21 



possible 2;bout tha Watergate raattor boctiuae I did not think 
that ho fully realizod all tho fao'cn and the implication of 
tiioBO facts for people at the Vlhite Houso as v;ell as himself. 
Ue said that X should moot with him tho n^y.t K^orning about 
10 o'clock. 

Before going in to t<=ill the President sojr.e of these 
things/ Z decided I should call Haldciaan bccauoa I knew that 
his nsme v;ould come up in the Matter. I called Haldor.ian and 
told him what I was going to do snd iiaideman agreed that I 
should proceed to so inform the Presidant of fclie situation. (lyiormngj 

The meeting of March 21st. As 1 have indicated, ray 
purpose in requesting thio meeting psirticularly with the 
President was that I felt it necessary thtt X give hiia a full 
report of all the facts that I knew £md explain to hiiu what I 
believed to be the Implication of those facts. It was my 
particular concern with the fact that the President did not 
seem to understand the implications of what was going on. For 
example, when I had earlier told him that Z thought Z was 
involved in an obstruction of juctice situation he had argued 
with me to tha contrary after I had explained it to him. Also, 
when the matter of money demands had come up previously he had 
very nonchalantly told me that that was no problem and Z did 
not know if he realized that he himself could bo getting 
involved in an obstziuction of justice by having promieod 
cilnmttnay to Hunt, Wli«t I )if><1 hf>j'«i<l i <> do in <lil« <utu\n,t tii.r.i rti-, '. 



J 



598 



dfaS ' 2330 



was to have the President tell ma that we had to end the 

2 matter ~ now. Accordingly, I gave conaiderabla thought to 

3 how I would present this situation to the President and try 
j 

4 to make as draiuatic a presentation as X could to tell him how 
! 

5 serious I thought the situation was that the cover-up 
( 

5^ continue . 

7^ I began by telling the President that there was a cancer 
$ grov/ing on the Presidency and that if the cancer was not remove 

i 

£ that the President himself would be killed by it. I also told 

10 him tl^iat it was important that this caricer be remc-vad 

^V immediately because it was grov/ing more deadly every day. 

;2 I then gave him what I told him would be a broad overview of 

i ... 

13 the Bltuation and I would come back and fill in the d<3tailB 

\i and answer any questions ha might have about the matter. 

j5 I proceeded to tell him how the matter had commenced in 

i 

16 late January and early February but that I did not know how 

17 the plans had finally been approved. I told him I had 

1 

! ■• ■ 

]3 infosmcd Haldeman what was occurring, and Haldcman told me I 

i 
10 should have nothing to do with it. I told him that 1 had 

a' learned that there had been pressure from Colson on Magrudar 

2/ but I did not have all the facta as to the degree of pressure. 

I 
22' I told him I did not know if Mitchell had approved the 

;. 

23 
24 
25 



Mar. 
21 



M 



J 



599 



'fl3 



15 

f 
^6 



J8 



21 



24 



d(!:nl 



iMar. 



2331 21 



1 plans but I h&d boon told Uiat tlitchcll had bt^sn a recipient 

2 of the wiretap information and tViat Haldcaa« had elao raceivcd 

3 Bozao information through Strachan. 

4 I then proceeded to tell hiia soas of the highlights 
that had occurred during the cover up. X told hisa tliat 

Q KalBsbach had baen used te raise funds to pay these eevsn 
7 individuals for their silence &t the instructicna of 
Q I£hrlichiQ&n, Halde!!uin> and i^tchell and I bad been the con- 
veyor of this instruction to Ralicbach. X told him that after 

fQ the decision bad been made that Hagruder was to remain at the 

i 

|lj Re-election Cozocaittee 1 had assisted Kagruder in preparing his 

j2 false sto3:y for preoentation to the grand jury. 1 told him 

that cash that had been at the tiQiite House had been funneled 

1^ back to the Re-election Coircntttse for the purpose of paying 
the seven individuals to remain silent. 

« 

Z then proceeded to tell him that perjury had been comait 



ij ted, and for this cover up to continue it vould require more 



perjury and more money. Z told him that the demands of tho 



L- convicted individuals vere continually increasing and that 

r 

with sentencing imminent, the de]i>»ndQ had becoroe specific. 



Z told him that on Itonday the 19th, X h&d received a 
message from one of the Re-election Committee lawyers 
who had spoken directly with Bunt and that Hunt had sent a 
meooage to me demanding money. X then explained to him the 
mass ago that Hunt had told Paul O'Brien tI»o procoding Friday. 



600 



Mar. 
I! 2332 



Hi- 

n 



to ho passed on t^ me. I told iiia President I'd asked O'Brien 



Z 



« 



why to Dean oad O'Brien had asked Hunt tli© some question. But 
Hunt had wersly said you just paas tltia miisssge on to Dean. 
Tne EiOiisaage was that Hunt wanted $72,0C0 for living e5:paiaccs 
Siad $50,000 for attorneys fees and if he did not get '<:hc money 
and gat it quickly that ha would have a lot of seaiay things to 
7i Ij cay about what he had done £or John Ehrlichmsn v;hile he was 

!i 

j! at the IJhito House. If ho did not receive 'the money, ho would 
hava to reconjsidcz hiii> options. 

X lnforE:ed the President that X had passed this Ecessage 
on to both Haldes^n and Shrlichzaan. Hhrlichiinan ashed ma if 
I had diccussed the matter i«'ith Mitchell. Z had told 
Ehrlichaton that I had not done so and Shrlichican aslied ms to 
do CO. X told the President X had called Mitchell pursuant 
to Ehrlichmnn ' a request but I had no idea of what was happen- 
ing with regard to the request. 

X then told the President tliat this was just typical 
o£ the type of blackatail that the VJhite House would continuo 
to be subjected to and that X didn't know bow to deal with it. 
I alao told the President that X thought that X would as a 
result of my name coming out daring tti& Gray hearings be calleo 
before the grand jury and that if X was called to testify bo- 
fore the grand jury or the Senate Conanittee I would have to 
toll the facts the way X know them. X said X did not know i£ 
oxocutivo privlloyo would bo npplicr^blo to any appoftranco I 






0?i 

i) 
iZ I 

12 

33 
!4 
15 

16 
17 

13 

19 
20 

2'| 

22. 

23 



i 



t 






!l 

1 

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A 

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t4 

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17 

TS 

.1 
19 

20 

21 

22 

23 

24 



71 

< 



601 



dca3 [ Mar 

2333 21 



mi^ht havo before tho grand jury. I coualudacl by saying that 
it is cjoing to fcals© continuecl parjux-y arjd coiitinvied support 

H 

of fcheae individuals to perpetuate the cover-up and that I did j: 

ij 
not believe it was possible to do contijiua it; rather I 

thought it was ticta for surgery on the csncer itself aiid that 

oil those involved rauct eitond up and j^ccount for thesiis^slves 

iCLiuQi that the President hisoself get out in front of tliis matter 

I told the President that I did not believe that all 

of the seven defendants would saaintain their silence forever, 

in fact, I thought tliat one or snore would very likely break 

After I finished, I realised that I had not really 
ciade the President understand because after he a&ked a few 
guowtions, he suggeoted that it v;ould be an e:i:cellent 
idea if I gave soiaa sort of briefing to the Cabinet and that 
he wao very impressed vrith my knowledge of the circuraatances 
but ho did not seem particularly concomed with their impli' 
cations . 

It was after my prosenatation to the President c^nd 
during our STibseguont conversation the Prsident called 
Haldeaan into the office and the President auggestod that wa 
havo a cuseting with Mitchell, Kaldcsoii and £l\rlichiaan to dis- 
cvuia how to deal witli thlu situation. 'What oiS'srged froai that 
diucusoion after Haldcman coioe into the office was that John 
Mitoholl f>Iiou)(1 «oco«nt for hlmtioir for tlio jivi-JKn"; I'/Ui 



602 



dtz^4, 



2334 



j Mar. 
21 



1 
2 
3 

4 
5 

6 

7 I 

<^ 


30 
it 
12 

1 

U 
IS' 
1G 

"i 

10 : 

I 

20! 

2i , 
2^^ 



activities and the ' Prosident did not seen concerned ibcut tho 
activities which had occurred after June 17th. -^ 



j 



i 



After I departed the President's offica I sut>sequ3a-»tly 
wetit to a cieeting vrith Haldeisan and Ehrlichiaan to discuss the 
oattcr further. The sum and subatance of that disoussion 
vaa that the way to bcndle this new uac: for Mtcheil to step 
for%7ard and i£ Mtcholl were to step forward ue might not be 
confronted with the activities of those involved ia the tvhito 
Bouse in the cover-up. 

Accordingly, H&ldeai2tn,aa X recall, called Mtchell and 
asked him tocoasa dovm the next day for a iiiaeting with the 
President on the Watergate amttor. 

In th<B late afternson of March 21st, Ualdeman and 
Bhrlicbraon and I had a second meeting with the President. Bo- 
foro entering this meeting I had a brief discussion in the 
President's outer office of the Ejtecutive Office Building 
suite with Baldeman in which X told him tttat we had to op- 
tions! 

One is that this thing goes all the way and deals with 
both the pro-activities and the post_ activities, or the 
Qucoad altomativej if the covor-up was to proceed wa would 
have to draw the wagons in a circle around tho Xihite Houco ur.i 
thiit the Vfliito Uouao jvrotcct itoolC. I told Uoldowou u»i»t It 
fccd boon tho White House's acsistanco to the ro-eleotioa cc-:^tj- 
.- •lint- UnA (jrtt rrf>«i y\n l«i«-> if.!, of thin problem Bnd not.' tlm 



Mar. 

21 

afternoon) 



I 1 



603 



21 

dtnS 

2335 



only hope would be to protect ouraeivea fron. further involve- 
ment. 

Hie luaetiag with the Presidant tiiat afternoon with 
Haldsmaa, Ehrlichman and c^self \:aa a treiaonious dioappoisvt- 
Tcont to Bse becaiiBC it was quito clear that the cover-up as 
£az as the VOiite Kouss waa concerned was goin<j to oontinua. 
I recall that while Kaldeman, Ehrlicbiaaa and I wore eitti,ng at 
a small table in front of the President in his Si:eoutive 
Office Building office that I for the first tinia said in front 
of the President tiiat Z tliought that Haldeman, Ehrlichman and 
Dean wore all indictable for ob.otx-uction of Justice end tiiat 
was the reason I dissgroed with sll thett was being discussed 
at that point in tiise. 

I could tell that both Haldeioan, and particularly 
Ehrlichmaa, were very vaihappy with ay ooiuments, I had let 
thom very clearly know that X was not going to participate in 
the matter any further and that X thought it was time that 
everybody start thinking about telling the truth. 

X again repeated to thesi X did not think it was possible 
to perpetuate the oov©r-up and the liaportant thing new was 
to ga t the President out in front. 

Tho Di«oting of »!.\rch 22nd i thn firrunyomonte had bean 
laado to have a iisoting after Ixinch with tho President witli 
Ehrltclunan, R«ldoiaan, Mitcholl and myself. Mr. ^atcholl 
,„,.n^ to W'^»'hiitg<:ni\ ^l^l^^. i)»'%nJj3a for n meeting in Unlclnwsn's 



14 
i5 
16 
»'/ 
td 
\9 
20 
?.l 
22 
23 



604 



nocii2 

( "' (HALDEMAN) 

■' •■ G090 

1 request and asked hira to moot with Ehrllchman that day. 

2 I havo turned over to the Connaittoo a tapa recording of thic 

3 conversation. At tho timo we talked, Magruder had 

4 alr&ady deoidod to tell the 2ull truth, and in fact, t 

5 bollcvc, had dono so In a racotlng witli tho U.S. Attorneys. 

6 Ourin? thQ phono conversation, Hagrudor said that bis tcsti- 

7 Suony had not iiviplicatcd ce. He also said that one o£ the 
problems he was facing was that he hod committed perjuiry when 

9 bo^ostificd before the Grand Jury and the trial. X responded 
10 that 1 did not Jinow anything about that, and he replied that 
i) oven i£ X didn't, he did. Uc did not contradict me, thus shcv;~ 
]2 ing that, at that point in time at least, X did not know ho 
J3 had perjured hiiusolf . 

Turning to tho September 15 meeting, X was in meotinoa 
with the President all afternoon on Scptembev 15 , 1972. At 
tho end of the afternoon, the President had John Dean oa-ne in> 
^xliio was the day that the indictments had been brought down 
in tho Watergate case, and the President knew John Doan had too: 
concentrating for a three-month period on the inveat:'.9ation 
for tho VQiito Qousa. X am sure therefore that the iPresidor/c 
thought it would be a good time to give Doan a pat on the 
back . 

Thero wos no mood of o:n]berance or cuccitomont on tho 
i?rouident*s part at tho time tho indiotuonts were brought dc;7n. 
llo docs not take joy from tho misfortunes of other people, aaC 



as 



I 



1^ 



J 



605 



• ■Uifi--'^-: MA f> »H,>«^. ■■•?>?'<■->• . •:■■;?-=, Sep, 



" ■ -i^ ■ :'y' --'•1 i-- ^:'« 

^— — 

1 






8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
U 
23 

L 



I don't think be £ound it very pleasant that the peopl .ad 

2 beon indiotcd.'^ Naturally, howavor. It was good news as £ar as 

■ . . ■ • .)' 1 . ■ 

3 the Whito Uouod/^and the Admlnlatration wore ooncerncd that 

4 when the indlctmonts .wore brought down, after. a thorough InvcJti 
g gation, it hod beei\ established there was not any Involveiiicnt 

g by anyone In the White House. This confirmed what Mr, Dean 
- had been telling us, and we had been reporting to the Presi- 
dent over the period oC the past three aonths. 
^ As was the case with all meetings in tlie Oval Office 
when the President was there, this snoeting with Mr. Dean was 
recorded. At the President's request, I recently reviewed the 
recording of that meeting (at which Z was present throughout) 
in order to report on its contents to the PResident. Z should 
interject hero that X also reviewed the recording of the f^arch 
21st meeting of the President, Mr. De2tn and oiyself for the 
some purpose, and Z have made, reports to the President on bo'd^ 
of those meetings. X have not at any time listened to any otiior 
recordings of the meetings in the President's office or of tho 
President's phone calls. 

The President did not open the meeting of September ISth 
with the sjuitoment that "Bob has kept me posted on your 
handling of the Watargato" or anything even remotely rescTiibling 
that. He said, "Si, this was quite a day, you've got Water- 
gate on the way" or something to that effect. Dean respondctl 
that it had been quite a throe months and then reported to th:^ 



1 

z 

3 
4 
5 
6 

r 

8 

9 
fO 
It 
12 
13 
14 
15 
16 
17 
18 
10 
20 
21 
22 
23 
24 
25 



606 



IVculdcnt on how ths ^xrooa yaa handling tlio IndlotcinQnta and, 
ap£»ar«intly, a Clai-'Jc MacGregor proao conl-'iircnca, '''■■'■ 

Vl^O . dluoucialon IfJien covered tlie mattor of the ncv; bug 

■,■;...■.•■!••'■■■•■;■■. ^^■-■;-* :;: ^V^ / ; ., . ■ ' " ■ 

that had brecorttly boon fllBcovorcd in tho Demociratio National 
Cotsioifcteo and tlto qvwotlon o£ whether it had been planted 
by tl^a OKC and the natter of Mr. Nikon's campaign being bugged 
in 1960 and ooma diocusolon o£ whether to try to get out ovi> 
donae of that. Vhere waa oome dioou£iaion about Judge Richey 
hearing the civil case and a comment that he would keep 
Qociaar MoPhee abreast o£ what waa happening.! . don't recall any 
ootoient about the judge trying to accoimivodate Dtaan's ho;;>ea of 
slowing dovm the 8uit> but there waa soma discussion about 
tlie problem of the civil caaa dcpositiono interfering with the 
criminal prosecution — - apparently aa a result of a conversa- 
tion botv;een Judge Richey and Assistant D. S. Attorney Silbort. 
Dsan indicated that the i^dictmenta meant the end of the 
investigation by the Grand Jury and now there would be the 
GAO audit end some oongresoional inquiries r auch ao the 
Vatman co njni ttoo» but he assured the President that nothing . . 
would come out to surprioe us. Xn other words, there was 
apparently no information that would bo harmful that had not 
been uncovered already. The President did at that point ooLuoond 
I Diion for his handling of the whole Watergate matter, which vao 
a perfectly natural thing for him to do. Dean reported that he 
wAfi k eeping a olooe eye on possible campaign law violationa by 






6 
7 
8 

S 

:o 

i2 

II 

i.'i 

15 



18 
10 



607 



!! 

'■ 6093 

th< opposition; said there were aome probleios of bitterno^ja 
ti-t the Ro-election Coiamitfcea betweon the finance Conwiitteo 
f id Political Group; and aaid he was trying to keep notes on 
•eople who were emerging out ot all ttiift tliat were clearly 
not our friends. 

There waS/ as Mr. Dean has indicated, quite a lengt^iy 

I 

discussion of the Patman hearing;; and the various factors in- j 

volved in that. There was aome diacusalon of the reluctance -, 

i 

of the IRS to follow-up on complainta of possible vAoiatione ; 

against people v;ho were supporting our opponents because there I 

2'' ' 

are so many Democrats in tJie IRS bureaucracy that they won't j 

take any action. I 

i 

There vxas a discussion of cleaning house after the j 

I 

I 

election, moving quickly to replace people at all levels of | 
the Government. The meeting closed, as I recall, with a fairly 
long philosophical discussion. 

I totally disagree with the conclusion that the Presi- 
dent was aware of any type of cover-up and certainly Kr. Dean 
did not advise him of it at the Septereber 15th meeting. 



608 



•J 

4 
5 
6 

7 

a 
d 

io 
11 

12 
!3 
14 
15 
16 
17 
18 
19 

ao 

21 

22 
23 
24 

2b 



i. .112 

I, 

Mr, Haldeman. I will procciOd then vrifch -fclie addenduiii on j 

) 
tl»e March 21 meeting. I was prc-iient for the final 40 ndnuucs i ! 

» 

of the President's meeting v/itli John Usan on tiia morning oH ij 

Murcli 21. Wliilte 'i was not pr&senc for Wic first hour of tft'i , J 

! ;. 

mooting, I did listen to the tapeof thfi entire raaeting, j j 

Following is the subotance of tXi&t. meeting to th<i boat ' } 

f " 



of my recollection. 

Dean reported some facta regarding tlie planning and 
the break-in of the DNC and said again tliero were no VJiiite 1 1 



House personnel involved. Ht Ke felt Magruder was fully !■ 

aware of tlie operation, but he \iaa not "sura abovit Kitchell. U. ; 
I ■ \ 

said that Liddy had given him a full rundown right after Water- i \ 
gate and that no one in the White House was involved. Kc 1 ' 
said that his only concerns regarding the Wliite House were in • ; 

i! 

relation to the Colson phone call to Magruder which 1 1 

\\ 
might indicate White House pressure emd the possibility tJiat S 

j 6 

Haldeman got soma o£ the "fruits" of the bugging via Strachan j: 

ii 
since he had been told the "fruits' had been supplied to 

Stranchan. 

He outlined his role in the January planning raeetinfjs 
and recounted a report he said he made to lae regarding the 
second of those meetings. 

Regarding the post-Jxine 17th sitxiation, he indicated 
concern about two problems, money and clemency. He said thi^t 
Colson had said something to Runt about clemency. Ho did r<ot 



II 






609 



l^ii.v ..iiif-/ 



6113 



o 
6 

7 

3 
9 

:o 

13 



• ,j ro.poict any other offers of clemency cithough he saia h'i Cej.v. , ;, 
i: .e defendants; eiipcicted it. Tae. Piresideiit confiruied tiie.c .:•.-; • j 

<:ould not of for cleaisiicy and £>cun «ic;r.-s<i.ci. | 

Regarding i.ioney, Cean caid he caid ii-j.lcicir.cn. v/ere. ir." ' 

vclved. There was a bad appcaraiice v;hich couid ba dcveiopeO. ! 

iirco a oircuiastanuial chain of fvid&nca rciga;:diA9' obstruction f 

of justice. Ho said that KaliTOiach had raioed iv.oney for thG '■ 

, I 
defendants; that HEldeman had okayed t'ae retv.rji of V-Vii -sSaO^COO , f 

■I 
to the Cojniuittse ; and that Dean had haiiclled ciia dealings Ije." i 

•';•> >, 

tv;e©n the parties in doing this. He said tliat the ificney v;aG }, 

'. . ' <> 

for lawyers' fees. ■"..• ': i: 

• \ 
H« also reported on a current licnt blaciu.^.ciil threot. He k 

said Buiit was desaanding $120,000 or tlse Zie '.rould tell wboiit , 

the Beajny things he had done for Ehrlichiaan. The President 



I f 



pursued this in considerable: detail, obvloxi:<ly t?:ying to aiaokc-. ) i 



jg jijout what v/aa really going on. He led OiAAn on regarding t^ie 

?& 

20 



illproceao and what he would recosiraend doing. lie asked such things; | 

i! aa — "well , tliis is the thing you v/ould srecormnend? we ough-c j j 

to do this? is that right?" and he asxed whers the moiiey would ; , 



•M 



z-i 



come frora? hov; it would bt deliver&d? and so on. Ha aaJcedhow zuuc''i| 
noney would be involved over tha yet-ra and Dean said 'probably ; ; 
a irdllion dollars — but tJiS proble.fi is that it is ha::d to 
raise." The President said "tht-rii is no problem in raising c^ 
million dollars, vfs can do that, buc it would be wront). " X 
iiava the clear impression Uiat he v:i,s crying to find out whi^c 



34-966 O - 74 - pt. 1 - 40 



610 



nasirj . Mar. 21 I 

(morning) I 
6114 ! 



1 

2 ! 

i 

5 

6 

7 

8 

9 
•0 
11 
12 
13 
14 
15 
16 
17 
18 

ie 

20 

Zi 

22 

23 
24 



it was Dean vraa saying and what: Dean was recom;nencling.iIc wan 
■trying to get Dean's viev/ and he was asking him leading ques- 
tions in order to do tliat. This ia fcrie method the President 
ofctn used when he v/aa moving tovyard a detetroJ.nafcio.rt. 

De&n also mentioned his concern about other activities 
getting out, such as the "Ellsberg" break-in, something re- 
garding Brookings, the other Himt activities for Colson on 
Chappaquiddlck, the Segretti inatter, use of Kaln<bach funda, 
etc. 

When I entered the meeting, there v/ao anotlier dis- 
cussion regardingr the Hunt tJireat aiid tJte PrfS'sident again 
explored in considerable depth tho vai:.i.o'as options and tiried 
to drav/ Dean out on his recommendation. 

The meeting then turned to the question of how to deal 
witJh this situation and the President mentioned Ehrlichman's 
recommendation that everybody should go to the Grand Jury. 
The President told Deem to explore all of tills with Haldentan , 
Ehrlichman and Mitchell. 

There v;as no discussion while I v/as in the room (nor 
do I recall anydiscussion on the tape) on the question of 
clemency in the context of tl»e President saying that he had 
discussed this with Ehrlichnian and with Colson. The only 
iucntion of clemency was Dean's report that Colson had dis- 
cussed clemency with Uunt and the President's statement that 
Ue could not offer clemency and Dean's agreeioent — plus a 



■^ 



611 



( r>o ■ 
6111 



( 



4 I 
1 
I 

5 

6 
7 

S 



10 

n 

12 
13 
14 

15 I 
1 



a coKurient that Dean thought the otheira expectfed it. 

: 8 

1 u 

Dean mentioncsd aoveral times dviring thia ivieeting his evrarc,-- 1 

ness that he was telling tlie Praaident things the Presidsr.t h;..d ' I 

known nothing about. i 'a 

■ i) 

I have to sui-raise that there is a genuine confusion in I 'i 

I I- 

I i 

Mr. Dean's inind as to what happened on March 13th veraua what i ■': 

! } 

happened on March 2l3t, because some of what he deocrib^a j t 

in quite vivid detail as happening on March 13th did, in fact, j } 

\ happen on Karch 2l3t. The point about lay laughing at hia being ' ■ 



,, more knowledgea3jle next time, and U^.e question that he cayc ! ■ 

he raioed on March 13th regarding tlie million dollars are eo i U 

i n 

accurately described, up to a iJoint, aa to v;hat really happened j \. 
on March 21st that I believe ho is confuaed between the two 



I t 



dateo. 1 i! 

Mr. Dean's recollection that the President had told him 
on March 13 that Ehrlichman had diocusaed an offer of clemaacy 



j7 J toHunt with hini and he had also discussed Hunt's cleniency 






if. hi with Colson is at total variance witii everything that 1 havo i 

If ! 

jQ .;• ever heard from the President, Ehrlichi-ian or Colaon, I don't 

';> 

20 



21 
22 



;1 recall such a discission in either tlie March 13 or the March 

11 21 meeting. 

ii 

i| Now, to the question of impression. Mr. Dean drew 



•>3 i'l- tlie erroneous conclusion that the i-'rosident was fully knowleclge- 

II 

!! 



"■'!■ ji 



/^J 



able of the cover-up at the time of. the March 13th meeting in , J 
the sense (1) of being aware that money had been paid for j i 



612 



(morn if -.'.J 
6110 j 

silence and that (2) -the money deiaancls could reach a willion 

dollars and that the President said thcit wds no problem. He j 

drew his conclusion from a hypotliefcical diBcussion o£ qu2s- I 

tions since the President told me later that he heid no ir.l.^ritioj 

to do anything whatever about money and had no knov;ledge o£ j 

the so-called cover-up. ( 



a 

4 
5 

6 

7 

e 

9 I 

I 

10 •■ ' 

11 

12 

13 

14 

IS 

16 

17 

18 

10 

20 

21 

22 

23 

24 

25 



'613 



6iia 



( 



6 
7 

e 
g 

10 

]i 

<2 
13 
14 
15 
16 
iV 

ie 

19 

20 
21 
22 
23 
24 



Mar. 21 
(afternoon) 



to the Coniiuittee? 

Mr, Desh. Reproduced iiox'f. 

Senator Baker. Thank ycu very lauch. I 

Senator ERvin. You may prooefd with your original state- i 
ment. 

Mr. lialdeman. Thank you, sir. ' 

Mr. Dean, Mr. Ehr3.ichinan and I met witii tha President | 

lator tliat afternoon of tlie 21st. That waating doalt with j 

the questions of tlie grand jury, the Stnato Ccroii^ittee and 
executive privilege in connection witli gatlreriiio the facta 
and getting them out. I think the^-'S v/.hj scrae dioous-sion of 
Karlichwcn's theory tJiat everybody should '^o to izlie grand juiy; 
and Dean's reaction that that v;ouid h>2 fine as long as we had 
immunity. Mr. Ehrlicliraan, as I recall, very strongly shot 
down that thought from Dean saying it did not maJto any scnao 
at all. Dean has testified that he argued that the way to get 
the trutii out would be to send isverybody to tlie grand jury with 
immunity. That, in itself, is rather indicative of thfe dif£ere:jit 
attitudos. Mr. Ehrlichiaan was arguing for going to tha grand 
jury without inHr.unifcy in order to gat th^ trutlv out. Mr. Dean 
v;-aB Jirguing for going to the grand jury with iaaunity to get 
tho truth out. 



I recall an incident after tliat afternoon mooting that Mr. 
Doan also recalls, but ho says it took place before and ho 
K.^ei it A little bit differently. I riaraunxber that Down and 



614 



Exhibit I 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, ET. AL.- 

Plaintiffs 



V. 



RICHARD M. NIXON, 

INDIVIDUALLY AND AS PRESIDENT OF THE UNITED STATES 



THE WHITE HOUSE 
WASHINGTON, D.C. 



Defendant 



Civil 

Action 

No. 



AFFIDAVIT OF FRED D. THOMPSON 



Fred D, Thompson, being sworn, deposes and says: 



1. Early in June, 1973, the White House transmitted 

to the Select Committee a memorandum (which is attached to this 
affidavit) listing certain oral communications, both face-to-face and 
telephonic, between President Richard M. Nixon and John Wesley Dean III. 
This memorandum, inter alia , includes the exact times and durations of 
these communications, and, in the case of face-to-face communications, 
the other participants, if any, in those conversations. 



615 



2. Shortly thereafter, I received a telephone call 
from J. Fred Buzhardt, Special Counsel to the President. During 
this telephone call, Mr. Buzhardt related to me his understanding 

as to the substance of certain portions of the enumerated conversations 
between the President and Mr. Dean. 

3. During my discussion with Mr. Buzhardt, I 
made detailed notes on the information that he gave me. Upon 
conclusion of the conversation, I promptly prepared a "Memorandum 
of Substance of Dean's Calls and Meeting with the President, " a 
copy of vhich is attached to this affidavit. It is my belief that this 
memorandum accurately reflects the iaformation imparted to me by 
Mr. Buzhardt. 




Subscribed and sworn to. bcroro 
me, thi3_Z day of _^<^^^±djX loZi 




IJotary Public. L.C. 
My CommisGion Expires jj:;^^,y_. lo^ 



616 



MEETINGS AND TELEPHONE CONVERSATIONS BETWEEN 
THE PRESIDENT AND JOHN W. DEAN, III 



No contact between the President and John W. Dean, III, during January, 
February, and March 1972 



April 13, 1972 

PM 4:31 4:34 President met with Frank DeMarco, Jr. , and 

John Dean to sign 1971 income tax returns. 



May 1, 1972 

PM 3:02 3:07 President had photo opportunity in Rose Garden for 

National Secretaries Week. Mr. Dean attended 



No contact between the President and John W. Dean, III, during June and 
July 1972. 



August 14, 1972 



PM 



12:45 




11 


12:49 




09 


12:49 




11 


12:49 




11 


12:49 




12 


12:49 




12 


12:49 




12 


12:49 




12 



V 
The President met to sign personal legal documents with: 

The First Lady 

John J. Ratchford 

Mr. Butterfield 

Mr. Haldeman 

Mr. Ehrlichman 

John W. Dean, III 

John H. Alexander 

Richard S. Ritzel 



No other contact during August 1972 



617 

September 15, 1972 

PM The President met with; 

3:15 6:17 Mr. Haldeman 

5:27 6:17 Mr. Dean 



(The President talked with Mr. MacGregor by 
phone from 5:36 to 5:38) 



No other contact during September 1972 



October 9, 1972 

PM 3:10 3:34 The President met with Samuel Newhouse, President 

of Newhouse Newspapers and Newhouse Broadcasting 
and Herb Klein. 
3:23 3:34 John Dean joined the meeting. 



November 8, 1972 

The President attended a senior staff meeting in th# 
Roosevelt Room. Mr. John Dean was in 
attendance. 



November 12, 1972 

8:40 8:44 The President met aboard "Spirit of !76" with 

Rose Mary Woods and Mr. and Mrs. John Dean 



No contact between the President and John W. Dean, III, during November 
and Deceinber 1972. 



618 



January 21, 1973 

AM 11:05 12:04 President and First Lady hosted Worship Service. 

John Dean attended. 



February 27, 1973 

PM 3:55 4:20 President met with John Dean alone in Oval Office. 

February 28, 1973 

AM 9:12 10:23 President met with John Dean in Oval Office. 

March 1, 1973 

AM 9:18 9:4f> President met with his Counsel, John W, Dean, III, 

in the Oval Office. 

10:36 10:44 President met with Mr. Dean in the Oval Office. 

PM 1:06 1:14 President met with Mr. Dean in the Oval Office 

March 6, 1973 

AM 11:49 12:00 President met with Mr. Dean in the Oval Office. 

March 7, 1973 

AM 8:53 9:16 President met with Mr. Dean in the Oval Office. 

Marcli 8, 1973 

AM 9:51 9:54 President met with Mr. Dean in the Oval Office. 



619 



March 10, 1973 

AM 9:20 9:44 President talked long distance with Mr. Dean. 

President initiated the call from Camp David 
to Mr. Dean who was in Washington, D. C. 



March 13, 1973 

PM 12:42 2:00 President met with Mr. Dean in the Oval Office. 

(Mr< Haldeman was present from 12:43-12i55) 



March 14. 1973 

AM 8:36 President telephoned Mr, Dean. The call was not 

completed. 
8:55 8:59 Mr. Dean returned the call and talked with the President. 
9:43 10:50 President met with Mr. Dean in the P's EOB Office. 
Also present were: 

Mr. Kissinger (departed at 9:50) 

Ronald L, Ziegler 

Richard A, Moore (9:55-10:50) 

'pM 12:27 12:28 President telephoned Mr. Deaji. 

' 12:47 1:30 President met with Mr. Moore and Mr. Dean. 

4:25 4:26 President talked with Mr. Dean. (The President 

initiated the call. ) 

4:34 4:36 President talked with Mr. Dean. (Mr, Dean 

initiated the call. ) 



March 15, 1973 

PM 4:36 6:24 President met with Mr. Dean and Mr. Moore 

in the Oval Officf . 



620 



March 16, 1973 

AM 10:34 11:06 President met with Mr, Dean in the Oval Office. 

Mr. Ziegler was present from 10:58-11:10. 

PM 8:14 8:23 President talked with Mr. Dean. (The President 

initiated the call. ) 



March 17, 1973 

PM 1:25 2:10 President met with Mr. Dean In the Oval Office. 

March 19, 1973 

PM 4:59 President requested that Mr. Moore and Mr. Dean 

join him in his EOB Office. 

5:03 5:41 President met with Mr. Moore and Mr. Dean in 
his EOB Office. 

March 20, 1973 

AM 10:46 10:47 President taU<ed with Mr. Dean. (The President 

initiated the call. ) 

PM 12:59 1:00 President talked with Mr. Dean. (The President 

initiated the call. ) 

1:42 2:31 President nriet with Mr. Dean and Mr. Moore. 

7:29 7:43 President talked with Mr. Dean. (The President 
initiated the call. ) 



621 



April 16, 1973 

AM 10:00 10:40 President met with Mr. Dean in Oval Office. 

PM 4:07 4:35 President met with Mr. Dean in the President's 

EOB Office. 

4:04 4:05 President talked with Mr. Dean. (The President 
initiated the call. ) 

April 17, 1973 

AM 9:19 9:25 President talked with Mr. Dean. (The President 

initiated the call. ) 

April 22, 1973 

AM 8:24 8:39 President phoned Mr. Dean from Key Biscayne. 



622 



March 21, 1973 

AM 10:12 11:55 President met with Mr. Dean in the Oval Office. 

Mr. Haldeman was also present for at least 
part of the time 

PM 5:20 6:01 President met with Mr. Dean in the President's 

EOB office. Also present were: 
Mr. Ziegler (departed at 5:25) 
Mr. Haldeman 
Mr. Ehrlichman (5:25 - 6:01) 



March 22, 1973 

HI 1:57 3:'»3 President met with Mr. Dean in the PreBldent'i 

EOB Office. Also present were: 
Mr, Ehrlichman (2:00-3:^0) 
Mr. Haldeman (2:01-3:U0) 
Mr. Mitchell (2:01-3:^*3) 



March 23, 1973 

PM 12:l4U 1:02 President talked long distance with Mr. Dean. 

(The President initiated the call from 
Florida to Mr. Dean who was in Washington 
D. C.) 

3:28 3:UU President talked long distance with Mr. Dean 
(The President initiated the call from 
Florida to Mr. Dean who was in Camp 
David, Ml.) 



No contact during the period April 1-lU 



April 15, 1973 

P.M. 9:17 10:12 President met with Mr. Dean in the President'* 

EOB Office. 



623 



MEMORANDUM OF SUBSTANCE OF DEAN'S CALLS 
AND MEETINGS WITH THE PRESIDENT 



September 15, 1972 



February 27. 1973 



February 28, 1973 



March I, 1973 



March 6, 1973 



March 7, 1973 



/ 



Dean reported on IRS investigation of Larry O'Brien. 
Dean reported on Watergate indictments. 

Discussed executive privilege, minority counsel 
for Watergate Committee. Dean suggested White 
House aides submit answers to interrogatories. 

President inquired of Watergate, Dean said no White 
House involvement, Stans was victim of circumstances, 
Colson was lightning rod because of his reputation. 
Discussed wiretappings which had been brought up 
in the Gray hearings. Sullivan, Deputy Director, 
was friend of Dean and Dean suggested they make 
sure that wiretaps of prior years (other Administra- 
tions) be made known. 

Preparation for press conference -- go ovef question 
and answer book. Was decided the question would 
come up as to why Dean was sitting in on FBI inter- 
views and that the reason was he was conducting an 
investigation for the President. President •sked 
Dean to write a report. Dean was also critical of 
Gray. 

(March 2 press conference) 

Discussed executive privilege guidelines, decided 
to cover former White House personnel as well as 
present. 

Again discussion executive privilege guidelines. 
Dean again told the President the White House was 
clear. The President inquired as to how Pat Gray 
was doing. Dean informed himE.B. WilUama had 
dropped out of the civil case. 



624 



arch 8, 1973 President inquired as to whether Chapin had 

helped Segretti. Dean said no. 

March 10, 1973 ? 

(March 12: Issued statement on executive privilege, 
f applies to present and former staffers but will pro- 

vide information. ) 

March 13, 1973 Preparation for press conference. Went over ques- 

tions and answers. President inquired as to Ken 
Rietz. Dean said no illegality involved. President 
«. asked if Colson or Haldeman knew Segretti. President 
asked if Mitchell and Colson knew of Watergate, 
Dean said there was nothing specific on Colson; that 
he didn't know about Mitchell but that Strachan could 
be involved. President states again that Dean should 
compile a written report about the matter. Dean 
said Sirica was a hanging judge, the President said 
he liked hanging judges. They discussed fund raising 
before April 7. Dean said that everything that had been 
done was legal. 

March 14, 1973 Press conference was discussed -- questions and 

answers. Discussed executive privilege. Decided 
they needed a Supreme Court test. Decided that 
the President should discuss his l^^ijiosition. 
That afternoon the President suggested Dean should 
possibly appear before the press and discussed whether 
Chapin should make a statement about Segretti. The 
Gray hearings and the use of FBI files were »lso 
• ' discussed. 

March 15, 1973 President held press conference. That afternoon 

discussed that day's press conference and decided on 
use of "separation of powers" instead of executive 
privilege terminology. 

March 16, 1973 The President reiterated his position on use of raw 

FBI fules. Suggested Dean's written report be y 

accompanied by affidavits. Dean suggested untimely , / 
release of written report might prejudice rights of 
innocent people. Discussed poBsibility of getting 



625 



Dar.':i to iatorvi-jw KalJemaa and 

Ehrlichi-nan. Thr; Pro side nt •uggoBtcd Dean should 

poBsibly go to Camp David to write liis report* 



March 17, 1973 Presirleiil had made a note on a press ourvey containinj 

an article allefjing Whito Houbc involvement for follow- 
up (Dean possibly has copy of this). Dean again sug- 
gcslcd they bring out 1968 bugging and President 
(said KleindienEt had advised against it. Several 
nai-nes were discussed as possibly subject to attack: 
Colson, Haldoman, Ehrlichman, Mitchell and Dean 
himself. The President asked Dean point-blank if 
.. he knew about the planned broak-in In advance. Dean 
said no, there there was no actual White House invol- 
vement regardl<!B6 of appearances except possibly 
Strachan. Dean told President Magruder pushed 
Liddy hard but that Haldeman was not involved. 
The President wanted Haldeman, Ehrlichman and 
Dean to talk to the Committee and Dean resisted. 
Dean told the President of the EUsberg broak-in but jy ^ 
that it had nothing to do with Watergate. 

' (March 19: Ervin had been on Face the Nation and 
accused Dean of hiding behind executive privilege.) 

March 19, 1973 ' It 'was decided Dean would send a letter or sworn 

Btatemont to the Judiciary Committee ai\Bwering 
certain questions. 

March 20, 1973 (Republican leadership had been in that day. ) 

Dean cUecuBeed Mitchell's problems with the grand 
, jui'y, Vesco and the Gurney press conference. 

The President and Moore agreed that the whole 
investigation should be made public and that a state- 
ment should be released immediately after the sen- 
tencing of the defendants. Dean suggested that o^ch 
member of the FJrvin Committee be challenged to 
invito an FBI investigation of his own Senate campaign. 
The President called Dean that night and Dean said 
that there was "not a scintilla of evidence*' to indi- 
cate White House involvement and Dean suggested 
ho give the President a more in-depth briefiag on 
what had transpired. 



34-966 O - 74 - pi. 1 - 41 



626 



March 21, 1973 Dean gave the President his theory of what had 

happened. He still said no prior June 17 White 
House Iviowledge, that Magruder probably knew, 
that Mitchell possibly knew, that Strachan probably 
knew, that Haldeman had possibly seen the fruits of 
the wiretaps through Strachan, that Ehrlichman was 
vulnerable because of his approval of Kalmbach's • 
fund raising efforts. Colson had made the call to 
Magruder. He stated Hunt was trying to blackmail 
Ehrlichman about Hunt's prior plumber activities 
unless he was paid what ultimately might amount 
to $1 million. The President said how could it 
^.. possibly be paid, "What makes you think he would 
be satisfied with that?", stated it was blackmail, 
that it was wrong, that it would not work, that the 
truth would come out anyway. Dean had said that a 
Cuban group could possibly be used to transfer the 
1 payments. Dean sai d Colson h ad talke d^g_Hunt 

about executive clemency. He spoke of Haldeman' s 
return of the $350, 000. He said that Haldeman and 
Ehrlichman possibly had no legal guilt with regard 
to the money matters. Dean said nothing of his 
role with regard to the cover-up money. He said 
nothing about his discussions with Magruder helping 
him prepare for the grand jury. He said nothing of 
his instructions to Caulfield to offer executive 
clemency. 

This information was gone over twice, the last 
time in Haldeman's presence . 

Later that afternoon it was tentatively decided that 
everyone would go to the grand jury, however, Dean 
J wanted immunity. Haldeman suggested that they 

"' write the whole thing out and release it from the 

White House. Ehrlichman said there should be no 
executive privilege claim and that no one should ask 
for immunity. The President told them to discuss 
these matters with Mitchell. 

March 22, 1973 Mitchell suggests they go before the Ervin Committeo, 

that they not use executive privilege but that first 
it should all be put down on paper , 



627 



March 23, 1973 The, President called Dean and told him to go to 

Camp David. Later that aiternoon he called Dean 
at Camp David to check on his progress. 



(March 30: After it becan^e obvious Dean would 
write no report, the President directed Bhrlichman 
to inveatigate. 

On April 14 Ehrlichrnan reported possible Mitchell, 
Magruiler and Doan involvement. The President 
called Kleindicnst, who followed up. (Up until now 
the President had aKsumed Dean was getting much 
of his information from the Justice Department.) 
Kleindienst and Petersen focused in on possible 
involvement of Maldeman, Ehrlichman and Strachan. 

On April 15 Petersen submitted a memo on Ehrlich- 
man, Haldeman and Strachan. They also found out 
about Gray's destruction of documents. ) 

April 15, 1973 Dean along with almost everybody else was called 

in that day. The President told Dean that he must 
go before the grand jury without immunity. 

April 16, 1973 The President asks Dean to resign. Had two 

drafts prepared for Dean's signature. Dean 
deiTvanded Haldeman and Ehrlichman resign also. 

(Petersen asked the President to hold off on firing 
Dean until they could get him before the grand jury. 

On April 17 the President released his statement 
saying that no White House staffers would receive 
immunity. 

On April 19 Dean said he would not be a scapegoat. 

On April 11 Petersen told the President there is no 
use trying to get Dean to go before the grand jury, 
thai he was demanding iirvmunity. 

On April 30 the ^'resident made his speech concerning 
Haldeman's and Ehrlichman's resignations and Dean's 
firing.) 



628 

^OAiMMtDlAXi^ K£i-c;ASi; MAY ii, 19V3 

Ofiice of the White House Press Secretary 

THE WHITE HOUSE 
STATEMENT BY THE PRESIDENT 

Alleeatione surrounding the Watergate affair have so escaUted that I feel 
a further statement from the President is required at this time. 

A climate of sensationalism has developed in which even second-or 
third-hand hearsay charges are headlined as fact and repeated as fact. 

Important national security operations which themselves had no connection 
with Watergate have become entangled in the case. 

As a. re suit, some national security information has already been made 
public through court orders, through the subpoenaing of documents and 
throuch testimony witnesses have given in judicial and Congressional 
proceedings. Other sensitive documents are now threatened with diBclosure. 
Continued silence about those operations would compromise rather than 
protect them, and would also serve to perpetuate a grossly distorted view -- 
which recent partial discldsurea have given — of the nature and purpose 
of those operations. 

The purpose of this statement is threefold: 

-- First, to set forth the facts about my own relationship to the 
Watergate matter. 

-- Second, to place in some perspective some of the more sensa- 
tional .. and Inaccurate — of the charges that have filled the headlines in 
recent days, and also some of the matters that are currently being dis- 
cussed in Senate testimony and elsewhere. 

-- Third, to draw the distinction between national security operations 
and the Watergate case. To put the other matters in perspective, it will 
be necessary to describe the national security operations first. 

In citing these national security matters, it is not my Intention to place a 
national security "cover" on Watergate, but rather to separate them out 
from Watergate •- and at the sanae time to explain the context in which cer- 
tain actions took place that were later misconstrued or misused. 

Long before the Watergate break-in, three important national security 
opo rations took place which have subsequently become entangled in the 
Watergate case. 

-- The first operation, begun in 1969, was a program of wirotape. 
All were legal, under the authorities then existing. They were undertaken 
to find and stop serious national security leaks. 

-- The second operation was a reassessment, which I ordered in 1970, 
of the adequacy of internal security measures. This resulted in a plan and 
a directive to strengthen our intelligence operations. They wore protested b/ 
Mr. Hoover, and as a result of his protest they were not put into effect. 

-- The third operation was the establishment, in 1971, of a Special 
Investigations Unit in the White House. Its primary mission was to plug l<'-il n 
of vital security information. I also directed this group to prepare an accuj-.ii<^ 
history of certain crucial national security matters which occurred under prior 
Administrations, on which the Government's records were incomplete. 

Hero is the background of these three security opAralioAji initiated in my 
. Administration, 

(MOUK) 



629 



-2- 



1969 Wiretaps 

By mid-1969, my Administration had begun a number of highly eeneltive 
foreign policy initiatives. They were aimed at ending the war in Vietnam, 
achieving a settlement in the Middle East, limiting nuclcax arms, and 
establishing new relatioaahips among the great powers. These involved 
highly secret diplomacy. They were closely interrelated. Leaks of 
secret infornnation about any one could endanger all. 

Exactly that happened. News accounts appeared in 1969, which were 
obviously based on leaks — some of th&m ext«neiv« and detailed -- by 
people having access to the most highly classified security materials. 

There was no way to carry forward these diplomatic initiatives 
unless further leaks could be prevented. This required finding the 
source of the leaks. 

In order to do this, a special program of wiretaps was instituted in 
mid-1969 and terminated in February, 1971. Fewer than 20 taps, of 
varying duration, were involved. They produced important leads that 
made it possible to tighten the security of highly sensitive materials. 
I authorized this entire program. Each individual tap was undertaken 
in accordance with procedures legal at the time and in accord with 
long-standing precedent. 

The persons who were subject to these wiretaps were determined 
through coordination among the Director of the FBI, my Assistant 
for National Security Affairs, and the Attorney General. Those 
wiretapped were selected on the basis of access to the information 
. leaked, material in security files, and evidence that developed as 
the inquiry proceeded. 

Information thus obtained was made available to senior officials 
responsible for national security matters in order to curtail further 
leaks. 

The 1970 IntoUigonco Plan 

In the spring and summer of 1970, another security problem reached 
critical proportions. In March a wave of bombings and explosions 
struck college campuses and cities. There wore 400 bomb threats in 
one 24-hour period in New York City. Riottng and violence on college 
campuses reached a new peak after the Cambodian operation and the 
tragedies at Kent State and Jackson State. The 1969-70 school year 
brought nearly 1800 campus demonstrations, and nearly 250 cases of 
arson on campus. Many colleges closed. Gun battles between guexnlla- 
style groups and police were taking place. Some of the disruptive 
activities were receiving foreign support. 

Complicating the task of maintaining security was the fact that, in 1966, 
certain types of undercover FBI operations that had been conducted for 
many years had been suspended. This also had substantially impaired 
our ability to collect foreign intelUgcnce information. At the same time, 
the relationships between the FBI and other intelligence agencies had be«^n 
deteriorating. By May. 1970, FBI Director Hoover shut off his agency's 
liaison with the CIA altogether. 

On June 5, 1970, I met with the Director of the FBI (Mr. Hoover), the 
Director of the Central Intelligence Agency (Mr. Richard Helms), the 
Director o.' the Defense Intelligence Agency (General Donald V. Bennett) 
and the Director of the National Security Agency (Admiral Noel Gayler). 
We discussed the urgent need for better intelligonee operations. I 
appointed Director Hoove* aa chairman of an interagency committee to 
prepare r%comm«n<1atlonai 



630 



On June 25, the committee submitted a report which included specific 
options /or exp.-inded intelligence operations, a.nd on July 23 tho agencies 
were notified by memorandum of ' the options approved. After reconnidoration, 
however, prompted by the opposition of Director Hoover, the agencies wore 
notified five days later, on July 28, that the approval had been rescinded. 
Tho options initially approved had included resumption ;of certain intclligonco 
oporatione which had been suspended in 1966. These in turn had included 
authorization for surreptitious entry -- breaking and entering, in effect -- 
on specified categori«8 of targets in specified situations related to nation.il 
secutity. 

Because the approval was withdrawn before it had bean Implemented, tho 
net result was that the plan for expanded intelligence activities never went 
into effect. 

The documents spellin," his 1970 plan are extremely sensitive. Thoy 

include -- and are basca upon -- assessments of certain foreign intelligence 
c.-\pabilities and procedures, which of course must remain secret. It was 
this unused plan and related documents that John Dean removed from the 
White House and placed in a safe deposit box, giving the keys to Judge 
Sirica. The same plan, still unused, is being headlined today. 

Coordination among our intelligence agencies continued to fall shortiof our 
national security needs. In July, 1970, having earlier discontinued the 
FBI's liaison with the CIA, Director Hoover ended the FBI's normal 
lieison with all other agencies except tho White House, To help rcmody 
this, an Intelligence Evaluation Committee was created in December, 19V0. 
Its members included representatives of the Wliite House, CIA, FBI, NEA, 
the Departments of Justice, Treasury, and Defense, and the Secret Service. 

The Intelligence Evaluation Committee and its staff were instructed to 
improve coordination among the intelligence community and to prepare 
evaluations and estinnates of domestic intelligence. I understand that its 
activities arc now under investigation. I did not authoriee nor do I have 
any knowledge of any illegal activity by this Committee. If it went beyond 
its charter and did engage in an/ illegal activities, it was totally without 
my knowledge or authority. 

The Special Investigations Unit 

On Sunday, June 13, 1971, The Now York Times published the first 
instnllment of what came to bo known as "The Pentagon Papers. " Not until 
a few hours before publication did any responsible Government official 
know that they had been stolen. Most officials did not know they existed. 
No senior official of the Government had read them or knew with certainty 
what they contained. 

All the Government know, at first, was that the papers comprised 47 
volumes and some 7, 000 pages, which had been taken from the most 
sensitive files of the Departments of State and Defense and the CIA, covering 
military and diplonrtatic moves in a war that was still going on. 

Moreover, a majority of tho documents published with the first three 
inntallments in The Times had not been included in the 47-volume study -- 
raising serious questions about what and how much elee might have been 
taken. 

There was every xe^aon to believe this was a security leak of unprecedented 
proportions. 



(MOKE) 



631 



It created a situation in which the ability of the Government to carry on 
foreign relatione even in the beec of circumstances could have been sovercJy 
compromised. Other governments no longer knewr whether they could deal 
with the United States in confidence. Against the background of the delicate 
negotiations the United States was then involved in on a number of fronts -- 
with regard to Vietnam, China, the Middle East, nuclear arms limitations, 
U.S. - Soviet relations, and others -- in which the utmost degree of 
confidentiality was vital, it posed a threat so grave as to require extraordinary 
actions. 

Therefore during the week following the Pentagon Papers publication, I 
approved the creo.ion of a Special Investigations Unit within the White Ilounc-- 
which later came to be known as the "plumbers. " This was a small group .at 
the White House whoso principal purpose was to stop security leaks and to 
investigate other sensitive security matters. I looked to John Ehrlichman for 
the supervision of this group. 

Egil Krogh. Mr. Ehrlichman' s assistant, was put in charge. David Young was 
added to this unit, as were E. Howard Hunt and G. Gordon Liddy. 

The unit operated under extremely tight security rules. Its existence and 
functions were known only to a very few persons at the White House. These 
included Messrs. Haldeman, Ehrlichman and Dean. 

At about the time the unit was created, Daniel EUsberg was identified as tne 
person who had given the PenUgon Papers to The Npw York TimoB . I told 
Mr. Krogh that as a matter of first priority, the unit should find out all it 
could about Mr. EUsberg' s associates and his motives. Because of the 
.extreme gravity of the situation, and not then knowing what additional national 
secrets Mr. EUsberg might disclose, I did impress upon Mr. Krogh the ^ 
vital importance to the national security of his assignnicnt. I did not author- 
ize and had no knowledge of any illegal means to be used to achieve this go.-il. 

However, because of the emphasis I put on the crucial importance of prototim;; 
the national security, I can understand how highly motivated individuals could 
have felt justified in «ng*8ing in spociflo activiti«e that I would have disapproved 
had they been brought to nny attention. 

Consequently, aa President, I must and do aeeumo reeponsibility for such 
actions despite the £act that I, at ao time approved or had knowledge of 
then^. 

I also assigned the unit a number of other investigatory matters, dealing 
in part with compiling an accurate record of events related to the Vietnam 
War, on which the Government's records were inadequate (many previous 
records having been removed with the change of Administrations) and which 
bore directly on the negotiations then in progress. Additional assignments 
included tracing down other national security leaks, including one that 
seriously compromised the U.S. negotiating position in the SALT talks. 

The work of the unit tapered off around the end of 197 1. The nature oi its 
work was such that it involved matters that, from a national security 
standpoint, were highly sensitive then somI remain so today. 



MORE 



632 



These intelligence activities had no connection with the break>in of the 
Democratic headquarters, or the aftermath. 

I considered it my responsibility to see that the Watergate investigation did 
not impinge adversely upon the national security area. For cxamplo, on 
April 18th, 1973, when I learned that Mr. Hunt, a former member of lii-- 
Special Investigations Unit at the White House, was to bo fjuoiitioncl 1j/ !).•■ 
U.S. Attorney, I directed Aaoiotant Attoi-noy GonorAl Potcrtion to jHii-ini..- 
vvcry iiiHuo involvinf; Wotorf.ato but to coitfino liiu invootigalion to \V.\tc;)-(, i >■ 
.Mid rolntcd nialtoro and to stay out of national security mattoro. Kul>«iqiKriiU/, 
on Apvil 25, 1973, Attorney General Kleindienat informed mc that bccaumi 
t)ic Govornnncnt had clear evidence that Mr. Hunt was Involved in the brnak-in 
of tlio office of the psychiatrist who had treated Mr. EUsborg, ho, the 
Attorney General, behoved that despite the fact that no evidence had been 
obtained from Hunt's acts, a report should nevertheless be made to tha 
court trying tke EUsberg case, I concurred, and directed that the informa- 
tion be transmitted to Judge B/rne immediately. 

Watergate 

Tho burglary and bugging of the Democratic National Committee headqunitors 
came as a complete surprise to me. I had no inkling that any such illegal 
activities had been planned by persons associated with my cannpaign; if I 
had known, I would not have permitted it. My immediate reaction was that 
those guilty should be brought to justice and, with the five burglars them- 
selves already in custody, I assumed that they would be. 

Within a few days, howovor, I was advised that there was a possibility 
of CIA involvement in some way. 

It did seem to me possible that, because of the involvement of former CIA 
personnel, and because of some of their apparent associations, tho invciiU- 
gation could load to tho uncovering of covert CIA operations totally unrelntod 
to the Watergate break-in. 

In addition, by this time, the nanne of Mr. Hunt had surfaced in connection 
witl» Watergate, and X was alerted to the fact that he had previously boon 
a member of the Special lAvostigation* Unit in the White House. Thoroforo, 
I was also concerned that the Watergate investigation ntight well lead to nn 
inquiry into the activities of the Special Investigations Unit itself. 

In this area, I felt it was important to avoid disclosure of the details of die 
notional security matters with which the group was concerned. I knov/ tli.a 
once the existence of the group became known, it would lead inexorably lo 
a discussion of these matters, some of which remain, even today, highly 
sensitive. 

I wanted justice done with regard to Watergate; but in tho scale of national 
priorities with which I had to deal -- and not at that tinne having any i<lra 
of tho extent of political abuse which Watergate reflected -- I also ha<l lo t>o 
deeply concerned with ensuring that neither the covert operations of the CIA 
nor tite operations of the Special Investigations Unit should be conipromiri'^d. 
Tlierofore, I instructed Mr. Haldeman and Mr. Ehrlichman to ensure th.-\t 
t)>e investigation of the break-in not expose cither an unrelated covert 
operation of the CIA or the activities of the White House inve stigations vitiit -- 
and to see that this was personally coordinated between General Waltorn, 
the Deputy Director of the CIA, and Mr. Gray of tho FBI. It was certainly 
not i-ny intent, nor my wish, that the investigation of the Watergate break-in 
or of related acts be impeded in any way. 

(MORE) 



633 



On July 6, 1972, I telephoned the Acting Director of the FBI, L. Patrick 
Gray, to congratulate him on his aucceseful handling of the hijacking of 
a Pacific Southwest Airlines plane the previoue day. During the conver- 
sation Mr. Gray discussed with me the progress of the Watergate inves- 
tigation, and I asked him whether he had talked with General Walters. 
Mr. Cray said that he had, and that General Walters had assured him ^ 

that the CIA was not involved. In the discussion, Mr. Gray suggested 
that the matter of Watergate might lead higher. I told him to proes 
ahead with his investigation. 

It now seems that later, through whatever complex of Individual motive* 
and possible misunderstandings, there were apparently wide-ranging 
efforts to limit the Investigation or to conceal the possible involvement 
of members of the Administration and the campaign committee. 

I was not aware of any such efforts at the time. Neither, until after I 
began my own investigation, was I aware of any fund Taieing for defcndantn 
convicted of the break-in at Democratic headquarters, much less authorizo 
any such fund raising. Nor did I authorize any offer of Executive clemency 
for any of the defendants. 

In the weeks and months that followed Watergate, I asked for, and 
received, repeated assurances that Mr. Dean's own investigation (which 
included reviewing files and sitting in on FBI interviews with White House 
personnel) had cleared everyone then employed by the White House of 
involvement. 

In sumrr^ary, then: 

(1) 1 had no prior knowledge of the Watergate bugging operation, 
or of any illegal surveillance activities for political purposes. 

(E) Long prior to the 1972 campaign, I did set in motion certain 
Internal security measures. Including legal wiretaps, which I felt were 
nocossary from a national security standpoint and, in the climate then 
prevailing, also necessary from a domestic security standpoint. 

(3) People who had been involved in the national security operations 
later, without my knowledge or approval, undertook illegal activities in 
the political campaign of Ji972i 

(4) Elements of the early post-Watergate reports led me to surpect, 
incorrectly, that the CIA had been in some way involved. They also led 
mo to surmise, correctly, that since persons originally recruited for 
covert national security activities had participated in Watergate, an unre- 
stricted investigation of Watergate might lead to and expose those covert 
national security operations. 

(5) I sought to prevent the exposure of these covert national security 
activities, while encouraging those conducting the investigation to pursue 
their inquiry into the Watergate itself. I so instructed my staff, the 
Attorney General and the Acting Director of the FBI. 

(6) I also specifically instructed Mr. Haldeman and Mr. Ehrlichman 
to ensure that the FBI would not carry its investigation into areas that 
might compromise these covert national security activities, or those of 
the CIA. 

(7) At no time did I authorize or know about any offer of Executive 
clrmcncy for the Watergate defendants. Neither did I know until the 
time of rny vwn.mvvBVVK^twon, of any efforts to provide thorn wifli funds. 

(MOUK) 



634 



- 7 - 

Concluaion 

With hindsight, it ia apparent that I should have given more heed to the 
warning signals I received along the way about a Watergate cover-up and 
less to the reassurances. 

Witit hindsight, several other things also become clean 

-- With respect to campaign practices, and also with roapoct to campaign 
finances, it ohould now be obvious that no campaign in history has ever 
been subjected to the kind of intensive and searching inquiry that has been 
focuoed on tho campaign waged ia my bohali ia 1972. 

It is clear that unethical, as well as illegal, activities took place in the 
course of that campaign. 

Nono of these took place with my opocific approval or knowledge. To the 
extent that I may in any way liavo contributed to tho climate in which they 
took place, I did not intend to; to the extent that I failed to prevent them, 
I should have been more vigilant. 

It was to help ensure against any repetition of this in the future that laot 
week I proposed the establishmont of a top-leve), bipartisan, indcpondcnt 
commisQion to rocomnnend a comprehensive reform of campaign laws and 
practices. Given the priority I believe it deserves, such reform should 
be possible before the next Congressional elections in 1974. 

--It now appears that there were persons who may have gone beyond my 
directives, and sought to expand on my efforts to protect the nation.-*! 
security operations in order to cover up any involvement thoy or certain 
others might have had in Watergate. The extent to which this is true, 
and who may have participated and to what degree, are questions that it 
would not be proper to address here. The proper forum for settling those 
matters is in the courts. 

-- To tho eirient that I have boen able to determine what prob.-\bly happono'l in 
the tangled course of this affair, on tho basis of my own recoUcctiono »n<\ 
of tho conflicting accounts and evidence that I have seen, it would appoar 
thnt ono factor at w«rl( was that at critical polnta various psoplu, e*ch 
with hio own perspective and his own responsibilities, saw tho sanrie nituation 
with different eyes and heard tho same words with different ears. Wh.->t 
might have seemed inoignificant to ono eeomod iignificont to another; whnt 
ouu-oftw in terms of public responsibility, another saw in terms of politicnl 
opportunity; and raixed through it all, I am sure, was a concern on tho pait 
of many that the Watergate scandal should not bo allowed to get in the way 
of what the Administration sought to achieve. 

The truth about Watergate should be brought out -- in an orderly way, 
recognizing that the safeguards of judicial procedure are designed to find 
the truth, not to hida the truth. 

With his selection of Archibald Cox -- who served both President Koniiody 
and President Johnson as Solicitor General -- ao the spocial supervisory 
prosecutor for matters related to the case. Attorney Genoral-dosignate 
Richardson has demonstrated his own dctorminatioa to see the truth 
brought out. In this effort he has my full support. 

Considering the number of persons involved in this case whose testimony 
miglit be subject to a claim of Kxocutive privilege, I recognize t"o<>t_*- .clear 
definition of that claim has bttcome central to the effort to arrive at the 
truth. 

(MORE) 



635 



Accoruingly, Exocutive privilege will not be invoked as to an/ testimon/ 
coi'iccrning poaeible criminal conduct or discussions of possible criminal 
conrivict, in the matters presentl/ under investigation, including tlte 
Watergate affair and the alleged cover-up. 

I WAiit to finpliaoizo that this statemont is Uniltod to my own rccoUcctioiui <'( 
wiiat I Maid and did relating to security and to tlio Watergate. I have opociiii-;i Jiy 
Avoitlod any attonipt to explain what other parties may have said and done. 
My own information on those other matters is fragmentary, and to somfi oxi "ul 
contradiotory. Additional information may ba forthconrking of w]ilch I nra 
Mn.iwnro. It is also my understanding that the information which hu6 boon 
convoyed to mo has also become available to those prosecuting these mattoi r. . 
ihidcr such circunietancos, it would be prejudicial and unfair of mo to rcncl.;i- 
111/ opinions on the activities of others; those judgments niust bo loft to the 
judicial process, our best hope for achieving the just result that wo all seni;. 

As more information ie developed, I have no doubt that more quewtions wili bo 
raised. To the extent that I am able, I ehall also seek to set forth the facto 
as known to me with reapact to those questions, 

■" « 



636 

Exhibit K 



THE WHITE HOUSE 

WASH I N GTO N 



June 19, 1973 



Dear Mr. Dean: 



I am authorized by the President to inform you that the 
President will not invoke executive privilege, and you are 
released from any attorney-client privilege with regard to 
testimony you may give concerning the Watergate break-in, 
efforts to cover it up, or any other matters relevant to the 
inquiry of the Senate Select Committee. 

Insofar as you may have information that is related to national 
security, it is for your counsel to advise you what lawfully may 
be disclosed. The President is not authorizing any release 
of legally protected national security material. 

I advised the Senate Select Committee of this yesterday, and 
I am writing you so that you may have direct information about 
this. '■ 

Sincerely, 

Leonard Garment 
Counsel to the President 

Mr. John W. Dean III 

100 Quay Street ■ • 

Alexandria, Virginia 22314 

cc: Mr. Samuel Dash, Senate Select Committee 

Mr. Fred Thompson, Senate Select Committee 




637 






^o. 0^ ^ 



<2<-<^-t--"^ 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al. 

Plaintiffs 



RICHARD M. NIXON, individually and as 
President of the United States. 

Defendant 



FILED ) 

^G 9 1972 
) 



) JAMES F. DAVEY 
' CLERK 

\ - , _J 

) Civil 
) Action 
) No. 

'/j;r73~75 



MOTION TO REDUCE TIME FOR ANSWER OR RESPONSE 

Plaintiffs in this action hereby, by their attorneys, 
move this Court to shorten the period in which defendant 
Richard M. Nixon, President of the United States, may 
answer or otherwise respond to the complaint herein to 
not more than 20 days from the date of service of the 
summons and complaint. 




/ Fred j5. Thom^B^ri 
/ Minority Counsel 



/Cl^Ai^l C^^vucJ^.l 



Rufus/Edmisten 
Deputy Counsel 



Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 

Washington, D. C. 
Of Counsel 

Arthur S. Miller 

Chief Consultant to 
the Select Committee 
Washington, D. C. 

Of Counsel 



James Hamilton 
Assistant Chief Counsel 



Ronald D. Rotunda 
Assistant Counsel 

United States Senate 
Washington, D. C. 20510 
Telephone Number 225-0531 



638 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al. 



Plaintiffs 



RICHARD M, NIXON, individually and as President 
of the United States 



Defendant 



Civil 

Action 

No. 



/sf3~ys 



MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 
MOTION TO REDUCE TIME FOR ANSWER OR RESPONSE 



I 



Plaintiffs have today sued Richard M. Nixon, President 
of the United States, seeking a declaratory judgment and other ] 
relief to instruct and compel him to make available certain 
tapes and other materials that are the subject of two lawfully 
issued, but dishonored, subpenas served upon him by the Select 
Committee. 

Despite the fact that the President is sued in both 
his personal and official capacities, his counsel assert 
that, under Rule 12 (a), F.R. Civ. P., he has 60 days 
from the date of service of the complaint to answer 
or otherwise respond. * Without conceding this, plaintiffs 



♦Rule 12 (a) reads in pertinent part: 
"A defendant shall serve his answer withi 
service of the summons and complaint upon 
service is made under Rule 4 (e) and a di 
prescribed in the order of court under th 
United States or in the statute or rule o 
...The United States or an officer or age 
serve an answer to the complaint or to a 
within 60 days after the service upon the 
attorney of the pleading in which the cla 



n 20 days after 
him, except when 
fferent time is 
e Statute of the 
f court of the sta 
ncy thereof shall 
cross-claim, . . . 
United States 
im is asserted," 



te. 



639 



deem it appropriate to move the Court to shorten the President's 
time to answer from 60 to 20 days — the time allowed under 
Rule 12 (a) for nongovernmental defendants. 

Resolution of the controversy that is the subject of this 
lawsuit is undisputedly of great moment. The Select Committee, 
pursuant to its authority under S. Res. 60, has issued lawful 
subpenas to the President to obtain certain tapes and other 
materials concerning alleged criminal activities relating to 
the Presidential campaign and election of 1972.* Statements 
by the President and his present and former subordinates 
confirm that certain materials sought — most particularly the 
tapes of five Presidential conversations with Mr. Dean — are 
relevant to the Committee's investigation of such alleged 
criminal activities. The Select Committee has urgent and 
immediate need to obtain the subpenaed material so that it can 
fully complete its continuing investigation. Yet, the 
President, invoking certain alleged Presidential powers, 
prerogatives, and privileges, has declined to make available 
the materials subpenaed, thus presenting a fundamental and 
historic controversy between the Executive and the Legislative 
that this Court should decide. 

We submit to the Court that the parameters of the 
ji Watergate affair must be promptly determined so that the 
ij uncertainty and divisiveness that is abroad in the nation can 
|i be ended. The Court, in the present motion, is asked to 
|! quicken that result. The Federal Rules do not specifically 
•■ provide for reducing the time to answer, but there appears no 



ll * The President has asserted that he has sole possession, 
ii custody, and control of the subpenaed materials. 



Il 



640 



-3- 



doubt that this Court can do so. As Professor Charles Alan 

Wright, now the President's Special Counsel, has written in 

his treatise on federal procedure: 

"/~A7lthough the federal rules do not expressly 
give the Court power to shorten the period, it 
probably has inherent power to do so in the facfe 
of special circumstances." Wright, and Miller, 
Federal Practice and Procedure S 1346, at 529-30 
(1968) 



! For this proposition. Professor Wright correctly cites 

I 

i Studebaker Corp. v. Gittlin , 360 F.2d 692 {2nd Cir. 1966).* 

ii 

j. In addition to the national need for prompt determination 

I of the present controversy, there are other considerations 



li supporting the present request. The 60-day rule was propounded 

jl 

' in the recognition that it takes a normal complaint against 

!| 

, the government considerable time to sift through appropriate 

|i channels. In the usual circumstance, 60 days is needed to 

li 

' inform concerned officials of the lawsuit and allow them to 

I; 

'■ make determinations as to an appropriate response. See 

I! 

ii A.B.A. Washington Institute on Federal Rules (Oct. 8, 1938) 

j: at 50, 239; cf., Ramsey v. United Mine Workers , 27 F.R.D. 423, 

425 (D. Tenn. 1961) . 

These factors are not relevant here. This suit runs 

directly against the President. His own counsel have been 
II 
i| served with the complaint and, apparently, will personally 

handle the case. The President and his counsel have been aware 

'I that this litigation was imminent since July 26, 1973, when 

jl 

|i the Select Committee in public session voted its instigation. 

i, Surely, the President's counsel are well advanced in their 
jl 

li 



*See also Rule 1, F.R. Civ. P., which provides that these 
Rules "shall be construed to secure the just, speedy, and 
inexpensive determination of every action." 



641 



-4- 

preparation for this case and can, without undue difficulty, 
answer or respond to the present complaint within 20 days.* 

In this regard, we observe that the President and his 
counsel have already responded with lengthy papers to the show 
cause order issued by this Court upon petition of the Special j 
Prosecutor who seeks similar materials in connection with j 
proceedings before the Grand Jury. The issues in the show I 
cause proceeding and the present one are similar (although not | 

identical) and the President's show cause papers demonstrate | 

I 
that his counsel are fully conversant with the basic principles! 

they intend to urge in the case at bar. j 

For the above reasons, plaintiffs' motion to shorten the I 

time to answer or otherwise respond should be granted. 




Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 

Washington, D.C. 
Of Counsel 

Arthur S. Miller 

Chief Consultant to 
the Select Committee 
Washington, D.C. 

Of Counsel 



/fc^c Qw<z^f^ 



Rufus Edmisten 
Deputy Counsel 

James Hamilton 
Assistant Chief Counsel 



Ronald D. Rotunda 
Assistant Counsel 

United States Senate 
Washington, D.C. 20510 
Tel. No. 225-0531 



At- 



|| *This litigation is, of course, not one that involves a compli-' 
Ij cated evidentiary dispute where the relevant facts must be ' 
{! ascertained before answer. Here the basic factual situation | 
i| is known — the Select Committee has subpenaed materi