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 United 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 designated by it of itt* ehnirnian 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.
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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).
41
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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
43
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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
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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
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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. United 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 Kleinman
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. Waterfront
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 still 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
Counselman 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 States, 4o6 U.S. ^4l (1972). The
petitioners argued, inter 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). Refusal
^9,. 1^.3. tlfi/ following; communication of the
i'jimi mlt?'- order warrants ^ 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
Murphy v. Waterfront Corn-mission, . . • rather
than the transac'sicJn immunity concept of
Counselman v. Kitchcock, .... 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,
The Attorney General is not given veto pov:er.
Ho'r is_ the court given any pov/ef to withhold
the order 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 Prpsidential papo^-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 luirestrictpi 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 PresidentialJil&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
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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
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(?) 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
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(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
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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
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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
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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
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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
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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
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(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
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(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 ^uyjU ^
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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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 Liddy,
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
May // . 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 Rdi?)
'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 vs
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.)
CERTIFICATE
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
_ CERTIFICATE OF SERVICE _
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 PRJGLJUTOt
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
REQUIRING THE TESTIMONY AND '
PRODUCTION OF INFORMATION
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 is 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 Working 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
CONCLUSION
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 Murphy 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. United 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; Jenks 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. Tfexas. 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 Singer v. United
States, 380 U.S. 24.
8 -
416
?! icy- V. Texan , .' i^or'4 , i >■ vvrLi cui." My ii.'lovo.'i. ^n the i)i"( .: cnnic:; .
In Estcs, 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' ftates, 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 ''ideau 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."
Report of the Judicial Confer ence Committee on the Operation of the Jury
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 bourn v. Thompr;on,
supra (103 U.S. 163); Dombrowskl 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); Gravel v. United Stntes, supra (408
U.S. 606).
See also Powell v. McCorni.:ick , 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. McMillan , supra, Dombrowski v. Eastland , supra, 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 Prosecutor,
Wafcrj;atc; Special I'rosecutlop Force,
Dapnrt i - -nt of Ju:,ticf! ,
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 . Public hearings prior to the further development
of the investigation will increase the rlsK that major
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 Special Prosecutor
should pr"es"erve, for the present, freedom to brlnp, out at
one time 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
for siding vjith t.he Congress, siding" vfiih
The Attorney General, or maYxng its 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 opportunity to
prosecute a possible crirrilnElT" 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 informed
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
associates 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 Statet-,
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 when
crime or v.'rong doing is disclosed. Mc Grain
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. Tlionnson,
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. United States,
279 U.S. 263 (1929). Hutcheson v. United States, 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 ^ 0 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-
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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.
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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! Cninpal gn.' 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
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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
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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
testifying 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 0
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 ^.\
Uiiitrd J.'1'u^Liii Mui \.hal.
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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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.
Statement 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
alleged 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
criminal 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 assitjtants 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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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 0
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 ^iyyj.'^ </<
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
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?.4;
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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
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2
3
4
5
0
7
9
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14
IS
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17
IS
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20
2!
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Z'i
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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
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10
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19
20
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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
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7
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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
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IS
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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
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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
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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
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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
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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
0 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
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3
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S
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11
(2
IS
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is;
16
17
13
19
20 I
21
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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
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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
0 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
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2'|
22.
23
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t
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A
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X3
t4
15
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TS
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22
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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
<^
0
30
it
12
1
U
IS'
1G
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20!
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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 gat 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
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td
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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
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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 conjnittoo» 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 keeping 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
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6
7
a
d
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12
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ao
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22
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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 !
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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
0
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
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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 said Colson had talked^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 materials rela-
il ting to alleged criminal activity relevant to its inquiry and
il the President, asserting certain alleged privileges, has re- i
jl fused to make them available. The basic issues are thus ones
of law on which the President's position, by now, must be well '
formulated.
34-966 O - 74 - pt. 1 - 42
642
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMNOTTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al.
Plaintiffs
|1 RICHARD M. NIXON,
ii individually and as President of the United States
1; Defendant
ORDER
Civil
Action
No.
This matter having come before the Court on motion of
w
;; Plaintiffs in the above-captioned action, it is this
'i Day of August, 1973,
|i
;' ORDERED, that defendant Richard M. Nixon, President
l|
|! of the United States, shall answer or otherwise respond to the
i complaint in this action within 20 days after service of the summons
\ and complaint upon him.
United States District Judge
Chief Judge
643
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. 1593-73
STIPULATION RE REDUCTION OF TIME TO ANSWER
OR RESPOND
The parties to this action, by their undersigned attorneys,
hereby, this 13th day of August, 1973, stipulate -that defendant,
Richard M. Nixon, President of The United States, shall answer
or otherwise respond to the complaint herein on or before August
29, 1973, subject to the right of the defendant President to
apply for an extension of time to answer or respond if necessary.
James Hamilton
Assistant Chief Counsel,
^ - Select Committee on
Presidential Campaign
Activities
Attorney for Plaintiffs
Charles Alan Wright 7
Special Counsel to the
President
Attorney for Defendant
in J. /Sirica
(Chief Jadge, United States
District Court for the
District of Columbia
r//j/n
644
^■ E. TA
. I.'.. .V.O..
rAADG*:. CA.
v:: ri/.wAi.
N. KtL-
., j.-j., •■1.-.. c. .i.;,..\
, JR., TliN.S., VIC- CHAIRMAN
EDA'ArxO J, Gur;NO*. fi_a.
LjOV.'LXI. p. WlltCKZR, JR., CO,\K.
CAMUEL DAliM
;i-.iL>' COl-.^SEU A.\D IpVArF Dli^ECTOR
l-\\EO D. THOV.PGOK
^.;.^;0R,TY couN:^t:L
DJj>UTY COUNSEL
c?
SELECT COMMITTEE O.Ni
iSIOSNTlAU CAMPAIGN ACTIVITIES
(pU.iGUANJT TO S. RES. CO, SJD CONGHECs)
Washington, d.c. 20a iO
August 22, 1973
Hor.orable John J, Sirica
Chief Judge
Uj S, District Court
District of Columbia
Uo S^ Court House
V7 ashing ton, D^ C,
RE: SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al,
v„
RICHARD M. MXON, individually and as President
of the United States
Civil Action No. 1593--73
Dear Judge Sirica:
As your Honor is aware, we filed our complaint in the above
styled case on August 9, 1973, As stated in paragraph 25 of
'Co.z complaint, the "public interest in, and need for, the swift
completion of the functions of the Select Committee and the
unique and critical Constitutional considerations raised by the
actions of the defendant President warrant expedition of this
action at all stages and prompt resolution of the dispute, "
Recognizing the need for expedition, the plaintiffs filed a
motion to reduce to 20 days the time for answer or response
to the complaint from the 60 days normally provided a govern-
ment officer. The attorneys for the President thereupon
645
Judge Sirica
Page 2
stipulated that they would answer or move within 20 days.
Accordingly, their answer or motion will be filed on or
before August 29, 1973.
For the reasons discussed below, •we think it proper that
your Honor consider and decide our case in conjunction
with the show cause proceeding brought by the Special
Prosecutor^ In that event, the plaintiffs would be prepared
to file en August 29 a motion for summary judgment that
would present for consideration the plaintiffs' position on
the n-ierits of the controversy. Thus, by next Wednesday,
the issues in this case would be joined on the merits and
on any other defense that the President may choose to. assert.
We would be prepared to complete additional briefing and be
ready for oral argument by Friday, September 7, 1973, In
view of the fact that the attorneys for the President have
E-lready briefed, in the show cause proceeding, many issues
closely siniilar to those presented in our law suit, and in
view of the capacity for expedition that the attorneys for the
President have demonstrated in the show cause proceeding,
we would hope and expect that they can comply with the expe-
dited schedule we have suggested,
V/e readily acknowledge the public interest in expediting the
ultiniate resolution of the proceeding brought by the Special
Prosecutor, We also recognize that your Honor expressed
in court this morning your hope to render a decision in the
Special Prosecutor's case within a week. Nevertheless, we
believe that the public interest would he. better served by
your Honor's deciding these two cases at the same time.
We believe that this conclusion is supported by a consideration
of the following factors:
(1) The sole substantive issue in each
case is that of executive privilege in the
context of the proper relationship of the branches
646
Judge Sirica
Paee 3
of government within our constitutional system.
While there are differences in the way that issue
is presented in the two cases, there is a large
area of similarity and overlap. The fact that
your Honor has already hecoine acquainted with
that issue in the context of the Special Prosecutor's
proceeding will expedite the disposition of our case,
if your Honor should hear it,
(2) With all deferences to the quality of the
briefing and argument "by both sides in the Special "
Prosecutor's case, we believe, in view of the special
posture in which the executive privilege issue is presented
in our case, that we would be in a position to enlighten
certain aspects of that issue. Thus, we believe we
would be of assistance to your Honor in deciding
the Special Prosecutor's case as well as our own,
(3) In view of the closely related subject matters
of these cases, *it seems probable that they will
eventually be consolidated at some step in the appellate
process. Given this probability, and considering the
expedited briefing and argument schedule we believe
possible in our case, any delay that a consolidated
determination of these cases by your Honor might
entail in the eventual disposition of the Special
Prosecutor's proceeding would be nonexistant or
minimal.
Thus, while we acknowledge the need for expedition in the
Special Prosecutor's case, we submit that the important
public interest that accompanies both proceedings would
best be served if your Honor were to consider and decide
our case and the proceeding brought by the Special Prosecutor
at the same time.
647
Judge Sirica
Pa?e 4
Even if your lienor should choose to render a decision in
the Special Prosecutor's case before onr own, we believe
the above considerations show the desirability of yoixr
Konor's hearing and deciding our case^o'hyan expedited
schedule.
^^^±f^^
Samuel Dash
Chief Cciusel
cc: Archibald Cox
Charles A, Wright
648
WAH iKiAir SIM ( lAI. PROSF'C I I ION JOUCi:
I'liitcd Si.i;., I >cp;;rtiiieni el justice
I-12.-S K Street. N.W .
\V;i-,!iini;tMi.. DC. 20');i.S
August 23, 1973
Honorable John J. Sirica
Chief Judge
United States District Court
for the District of Columbia
United States Court House
Washington, D. C. 20001
Re: Senate Select Cor.ariittcc on Presidential
Cair.paign Activities v. F<Lichard M. 1-lixon
Civil Action No. 1593-73
and
In re Grand Jury Subpoena Duces Tecum
Issued to Richard M. Kixon, or any Sub-
ordincite Officer, Official, or Employee
v;ith Cu-;tody or Control of Certain Docu-
ments or Objects, Migc . Fo. 47-73
Dear Judge Sirica:
I am in receipt of a copy of a letter from Samuel
Dash, Chief Counsel, Senate Select Corinittee on Presi-
dential Campaign Activities, dated August 22, 1973,
asking you to "consider and decide [tlic Committee' sj
case in conjunction with the show cause proceeding
brought by the Special Prosecutor." I v;ish to state my
opposition to any course that would have the effect of
delaying the disposition of the grand jury's petition
for enforcement of its s\ibpoena. I oppose the Coirunit-
tee ' s request for tv.'o reasons. First, any delay in
the grand jury proceeding significantly increases the
risk that the matter v/ill not be fineilly resolved be-
fore the grand jury's term expires on December 4.
Second, the grand jury proceeding and the Corrjiiittee's
suit are quite distinct.
Naturally I recognize that the proceeding institu-
ted by the Senate Comimittee raises a nuinber of issues
of considerable public importance, and thus I see no
649
basis to object to any recuesL that the conduct of that ..
action be expedited. J'.y objection is s iirply to the
Cor.auittee' s request that disposition of the grand jury's
petition be delayed to avait tiio joinder of issue, the
filing of motions and replies, and the holding of a
hearing in the ConuTiittee ' s action. As your Eonor in-
dicated fror.\ the bench at the conclusion of the hearing
held yesterday on the grand jury's petition, a ruling
in our case r.ay be possible within the ;'i.e>:t fev; days.
It is unquestionably ripe for c'cci.sion, since all of the
relevant legal issues have been fully briefed and argued,
By contrast, in the Senate CoirsmitrciC ' s suit, the
White House J.ij not due to respond to tr' . • Ccnunittee's
corriplaint until August 29, a date by \vhich your Honor
suggested the grand jury's petition itiic'it be decided.
In addition, although there is no vfay v--:) predict pre-
cisely what foria the V.'nite House response will take in
the Senate matter, it is entirely possil- le, or indeed
probalile, that the response v;ill raise --■. variety of pro-
cedural and jurisdictional objections q'i.itc distinct
from the issues being litigated in conn-ruction v/ith the
grand jury's subpoena. Some of the major distinctions
inflicating that it would be um/arranted to delay dis-
position of the executive pi^iviiege cla...ra in the sub-
poena proceeding include possible argurr:..nts by the
VJhite House challenging the Ccn.n\ittee' s standing to sue
under Article III or under the Senate Resolution
creating the Coirjnittce, or contesting tJie Court's
statutory jurisdiction to entertain the matter, or
pointing to the criminal conterript statu.es as providing
the exclusive reraedy for testing the validity of a legis-
lative subpoena. None of those issues, of course, is
involved in the grand jury matter and i I: raised by the
White House in the Senate's suit would aave to be
addressed before the underlying merits '..ould be reached.
In addition, as I suggested in my oral argument
and in my briefs, the claim of executive privilege as
against a legislative inquiry raises peculiar problems
under the principle of separation of po-.'ers and the
"political question" doctrine that are not involved
when a court is asked to rule on the producibility of
evidence in a judicial proceeding, incl'jding a grand
jury investigation. Moreover, the relevant interests
- 2 -
650
which must be weighed v/hen a claim cf executive privilege
is asserted againf,t Congress are cjuitc different than the
interests involved in the grcnd jury proceeding. VJhile
the Committee refers to its investigation of alleged
criminal condvict as a basis for overcoming the claim of
executive privilege, it v/ill surely be open to question
whether that is a proper or sufficient legislative func-
tion in this context. Thus, it is apparent that the
executive privilege issues in the two proceedings are
quite different.
Let me reiterate, finally, that my only concern is
that the grand jury's request for access to information
necessary for its investigation not be retarded by con-
solidation v:ith any other proceeding, no matter how
important or ansilcgous . Nothing in the points I have
suggested v;ould delay the Conxnittee' s interest in a
prompt resolution of its rights, should the Court hold
that its conplaint is justiciable. But it is fair to
say, I- think, that tliere is no comiparab] e urgency in
their suit. As your Honor ]:nows, the grand jury that
has invoked this Court's aid in enforcer.eait of the sub-
poena has been investigating the Katergc.te matter for
almdst 15 months. Its term is to expire barely three
months froni now, at the beginning of December 1973. As
we stated in our main brief, it appears inappropriate
to ask the grand jury to decide whether to indict or not
to indict the principal figures in the VJatergate m.atter
until the courts have finally determined whether the
grand jury may have access to the critical evidence
sought by the subpoena — and until that evidence is
produced if the grand jury is held entitled to it.
Since it is clear that this matter will be carried to the
appellate courts, and since the passage of every day
brings the grand jury closer to its expiration, it is
exceedingly important theit a decision on its petition
not be delayed because of the pendency of collateral
litigation. It would be tragic, I believe, if an avoid-
able delay of even a fev/ weeks placed in jeopardy the
grand jury's ability to secure this eviocnce and to con-
sider it before it is discharged upon the completion of
its term.
- 3 -
651
I hope you will find these points helpful in pass-
ing upon the Conuni ttee ' s request.
Q
incerely.
ARCHIBALD COX
Special Prosecutor
cc: Samuel Dash
Charles Alan V:right
- 4 -
652
THE WHITE HOUSE
WASH I NGTON
23 August 1973
Dear Judge Sirica:
My associates and I have received a copy of the letter to you of
August 22nd from Samuel Dash regarding Civil Action No. 1593-73, %
Senate Select Committee on Presidential Campaign Activities v.
Nixon. We think it appropriate for us to comment on the procedural
suggestions made by Mr. Dash on behalf of the Senate Select Conamittee.
In our judgment it would be quite premature to agree now on a procedure
and schedule to be followed after we respond to the complaint in that
action at a tinne when we have not responded and indeed have not finally
determined what our response will be.
Even if it were clear how we will respond and what the appropriate
next step by the Senate Select Committee after it has received our '
response would be, we think that the schedule proposed by Mr. Dash,
with oral argument nine days after we have responded, is unrealistically
short. We are conscious of the public interest in prompt disposition
of these two cases. We believe that we have proceeded expeditiously
in the case brought by Mr. Cox and we expect to do the same in the
case brought by the Senate Select Committee. We showed that by
voluntarily stipulating to respond to the Committee's suit in 20 days • , c'
rather than the 60 days provided by the rules (and we had advised ' ■ 'J.'^
CQunsei for the Committee before their suit was filed that we expected i/^^'
to be able to stipulate to that effect, and would advise them definitely
within 24 hours after receiving the complaint, but that we could not
stipulate, for obvious reasons, before we had seen the comiplaint). ,
653
There are some similarities between the central issues in the two cases
but there are also many differences, both on the central issues and on the
serious preliminary questions of jurisdiction and the like that are presented^
by the Committee's suit. If the Court is to be properly served by counsels, !'•
there must be adequate time for briefing by each side, and briefs should
follow briefs in the usual fashion, rather than being prepared simultaneously.;
The matter is further complicated by the fact that on August 29th I resume },
my teaching duties at The University of Texas and thus must be in Austin y
at least Monday through Wednesday of each week.
When issue is joined in the Committee's suit in a fashion appropriate
for determination by the Court, we will be ready, as we have been
throughout both of these suits, to cooperate with the Court in working '..■■
out a schedule for briefing and argument that will permit both sides to '
provide the Court with as nnuch light as is possible on the issues the
case presents.
: Respectfully,
Charles Alan Wright '
Consultant to White House Counsel
Honorable John J. Sirica
U.S. Court House
3rd and Constitution Avenue, N. W. v./
Room 2428 ; '
Washington, D. C. 20001
cc: Honorable Archibald Cox
Samuel Dash
654
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
name and in the name of the UNITED
STATES ,
and
SAM J. ERVIN, JR.; HOWARD H. BAKER, JR.;
HERMAN E. TALMADGE ; DANIEL K. INOUYE ;
JOSEPH M. MONTOYA; EDWARD J. GURNEY;
and LOWELL P. WEICKER, JR., as United
States Senators who are members of
the Senate Select Committee on
Presidential C2unpaign Activities
Plaintiffs
V.
RICHARD M. NIXON, individually and as
President of the United States
Defendant
Civil Action No. 1593-73
ANSWER
Richard M. Nixon, answering the complaint filed in
above-styled cause, states as follows:
1. Admits the truth of the allegations contained in
paragraph one of the complaint, but denies that plaintiffs
acted within their authority in issuing the subpoenas duces
tecum to the President of the United States and thereafter
in instituting this action.
2. Denies the truth of the allegation contained in
paragraph two of the complaint.
3. Admits the truth of the allegations contained in
paragraph three of the complaint, but denies that plaintiffs
are entitled to investigate criminal conduct; and further
denies that plaintiffs are empowered to bring suit against
the President of the United States.
655
4. Admits the truth of the allegations contained
in paragraph four of the complaint, but denies that the
members of the Senate Select Committee are empowered to
bring suit in their official capacities as members of
that Committee.
5. Admits the truth of the allegations contained
in paragraph five of the complaint, but denies that the
President of the United States can be sued In his official
capacity; and further denies that he can be sued individually
for acts performed In his official capacity.
6. Denies the truth of the allegations contained In
paragraphs six through ten of the complaint.
7. Admits the truth of the allegations contained in
paragraph eleven, but denies that plaintiffs are empowered
to subpoena materials from the President of the United
States.
8. Admits the truth of the allegations contained In
paragraphs twelve through fifteen of the complaint.
9. Admits the truth of the allegation contained In
paragraph sixteen of the complaint, but denies that any
court has jurisdiction to quash, modify, or narrow a
subpoena Issued by a Committee of Congress.
10. Admits the truth of the allegations contained in
paragraph seventeen of the complaint.
11. Alleges that he Is without information or knowledge
sufficient to form a belief as to the truth of the allegations
contained in paragraph eighteen of the complaint, and denies
that he has conceded the relevancy of any "tapes" to plaintiffs'
investigation.
12. Denies the truth of the allegations contained in
paragraphs nineteen through twenty-five of the complaint.
656
In further defense to the complaint, Richard M. Nixon
states as follows:
First Defense
That the complaint fails to state a claim upon which
relief can be granted.
Second Defense
That this Court lacks jurisdiction over the person
of Richard M. Nixon in this action, either individually
or as President of the United States.
Third Defense
That this Court lacks jurisdiction over the subject
matter of this action because:
(a) the matter in controversy does not exceed the
sum or value of ten thousand dollars, exclusive of interest
and costs, as required by 28 U.S.C. 1331;
(b) this is not an action commenced on behalf of the
United States within the meaning of 28 U.S.C. 1345, because
plaintiffs are not expressly authorized to sue on behalf of
the United States by an Act of Congress; Senate Resolution
262, 70th Cong., 1st Sess. (1928) is not sufficient authori-
zation to sue;
(c) Richard M. Nixon owes no duty, either individually
or as President of the United States, to the plaintiffs
that affords mandeunus jurisdiction within the meaning of
28 U.S.C. 1361; and
(d) this matter is not reviewable under 5 U.S.C.
701-706 or any relevant statute because the plaintiffs
have not suffered any legal wrong nor have they been
adversely affected or aggrieved as the result of any
agency action.
657
Fourth Defense
That this action presents no justiciable controversy
as required by Article III of the United States Constitution,
and 28 U.S.C. 2201 and 2202.
Fifth Defense
That plaintiffs lack standing to bring this action.
Sixth Defense
That Senate Resolution 60, 93rd Cong., Ist Sess. (1973),
purports to authorize an investigation of alleged criminal
conduct, and that upon information and belief the investiga-
tion by plaintiffs has been, in fact, a criminal investigation
and trial conducted for the purpose of determining whether
or not criminal acts have been committed and the guilt or
innocence of individuals, which Resolution and investigation
exceed the legislative powers granted to the Congress in
Article I of the Constitution.
Seventh Defense
That the subpoenas upon which this action is predicated
are null and void in that the Senate has not authorized the
issuance of a subpoena to the President of the United States.
Eighth Defense
That plaintiffs have failed, as required by Senate
Resolution 60, Sec. 3(a)(6), 93rd Cong., 1st Sess. (1973)
to refer the President's action to the United States Senate
for appropriate review and action.
Ninth Defense
That the subpoena duces tecum attached as Exhibit D
to the complaint is so unreasonably broad and oppressive
as to make compliance impossible.
34-966 O - 74 - pt. 1 - 43
658
Tenth Defense
That the relief sought by plaintiffs constitutes an
unconstitutional attempt to interfere with the confidentiality
of private records of conversations between the President of
the United States cmd his closest advisers relating to the
official duties of the President.
WHEREFORE, premises considered, the relief prayed for
should be denied.
Respectfully submitted,
LEONARD GARMENT
J. FRED BUZHARDT
CHARLES ALAN WRIGHT
DOUGLAS M. PARKER
ROBERT T. ANDREWS
THOMAS P. MARIN IS, JR.
RICHARD A. HAUSER
Attorneys for the President
The White House
Washington, D.C. 20500
Telephone Number: 4 56-1414
V'^'^-^^Uy
659
CERTIFICATE OF SERVICE
1, J. Fred Buzhardt, hereby certify that on this
29th day of August, 1973/ I have served the foregoing
Answer on counsel for the plaintiffs by causing copies
thereof to be hand-delivered to the office of
Samuel Dash
Chief Counsel
Senate Select Committee on
Presidential Campaign
Activities
United States Senate
Washington, D.C. 20510
J. Fred Buzhardt
6G0
<r'.
^r^-
.<-
T/z9/7i ^i^
m THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IBi
FILEb
<*'V>
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al.
Plaintiffs
RICHARD M. NIXON, individually and as
President of the United States
Defendant
AUf^ ■> 9 1973
CLERK
Civil Action
No. 1593-73
MOTION FOR SUMMARY JUDGMENT
Plaintiffs, by their undersigned attorneys, hereby move the
Court, pursuant to Rule 56, F. R. Civ. P. , and 28 U.S. C. §2201 to grant
them summary judgment in this cause and to adjudge and declare that:
(1) The two subpenas duces tecum issued to and served upon
the defendant President by plaintiff Select Conrunittee on Presidential
Campaign Activities were lawfully issued and served and must therefore
be complied with by defendant President.
(2) The defendant President's refusal and failure to comply with
said subpenas were unlawful and cannot be justified by resort to any
asserted Presidential power, prerogative or privilege, or otherwise.
f
661
The grounds for this motion are more fully set forth in the accompanying
Memorandum In Support Of Motion For Summary Judgment and Statement
Of Material Facts As To Which There Is No Genuine Issue.
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
spectfully submitted
Samuel Dash
Chief Counsel
Fred D. Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
United States Senate
Washington, D, C. 20510
Tel. No. 225-0531
Attorneys for Plaintiffs
662
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. 1593-73
ORDER
This matter having come before the Court on plaintiffs' motion
for summary judgment pursuant to Rule 56, F. R. Civ. P. and 28 U. S, C.
§2201, and the Court being of the opinion that said motion should be granted,
it is hereby this day of September, 1973,
ORDERED, that plaintiffs' motion for summary judgment be and
is granted, and it is further
ADJUDGED AND DECLARED, that:
(1) The two subpenas duces tecum issued to and served upon the
defendant President by plaintiff Select Committee On Presidential
Campaign Activities were lawfully issued and served asid miust therefore be
complied with by defendant President.
663
(2) The defendant President's refusal and failure to comply with
said subpenas were unlawful and cannot be justified by resort to any
asserted Presidential power, prerogative or privilege, or otherwise.
John J. Sirica
Chief Judge, United States District
Court for the District of Columbia
664
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OP COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al..
Plaintiffs
Civil Action
No. 1593-73
V.
RICHARD M. NIXON, individually and as
President of the United States,
Defendant
STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE
ISSUE
1. The Senate Select Committee on Presidential Campaign
Activities is a duly authorized and constituted committee of the
Senate of the United States. It was created by Senate Resolution
60, 93rd Congress, 1st Session (1973), which was enacted by a
unajiimous vote of the Senate on February 7, 1973. (A copy of
S. Res. 60 is attached to the complaint herein as Exhibit A.)
Under S. Res. 60 the Select Committee is empowered to investigate
and study "illegal, ijqproper or unethical, activities" in
connection with the Presidential campaign and election of 1972
and to determine the necessity of new legislation "to safeguard
the electoral process by which the President of the United
States is chosen." The Select Committee is further authorized
by a standing order of the Senate, Senate Resolution 262,
70th Congress, 1st Session (May 28, 1928), attached to the
complaint 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 powers vested in it or the
duties imposed on it by the Constitution, resolution of the
Senate, or other law."
665
-2-
2. The duly designated members of the Select Committee are
Senator Sam J. Ervln, Jr., of North Carolina (Chairman) j
Senator Howard H. Baker, Jr., of Tennessee (Vice-Chalrman);
Senator Herman E. Talmadge of Georgia; Senator Dajilel K. Inouye
of Hawaii; Senator Joseph M. Montoya of New Mexico; Senator
Edward J. Gurney of Florida; and Senator Lowell P. Weicker, Jr.,
of Connecticut.
3. Section 3 (a) (5) of S, Res. 6o, empowers the Select
Committee
" . . .to require by subpena or order any
department, agency, officer, or employee of the
executive branch of the United States Government,
or any private person, 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 ajiy 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 which they or emy of
them may have in their custody or under their
control; ..."
4. On Jxay l6, 1973, Alexander P. Butterfield, former
Deputy Assistemt to defendant Richard M. Nixon, President of the
United States, testified that certain Presidential conversations,
both face-to-face and telephonic, had been recorded by
electronic means and are preserved on tapes. See, e.g.. Select
Committee Transcript, pp. 4l44-52 (hereinafter cited as S. Tr.).
The accuracy of Mr. Butterfield 's testimony was later confirmed
in all pertinent parts by a letter to Chairman Ervin from
J. Fred Buzhardt, Counsel to the President, dated July l6, 1973.
S. Tr. 4l84.
5. On July 23, 1973, after informal attempts by the
Select Committee to obtain certain tapes and other documents
and materials relating to the Presidential campaign and election
666
-3-
of 1972 had failed, the Committee addressed two subpenas duces
tecum, signed by Its Chairman, to "President Richard M. Nixon,
The White House, Washington, D. C," which sought the tape
recordings of specified conversations and other designated
materials. Both subpenas were duly served on July 23, 1973.
The two subpenas, with their proof of service, are attached to
the complaint as Exhibits C and D.
6. All tapes and materials subpenaed by the Select
Committee are, and were at the time the subpena was issued,
under the sole possession, custody and control of the defendant
President. However, until around the time of the revelation
on July 16, 1973i of the existence of the tapes by Mr. Butterfield,
the subpenaed tapes, were under the immediate possession,
custody and control of the Chief of the Technical Security
Division of the Secret Service. S. Tr. 4l66, 4l82-84.
7. Both 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 with the subpenas or
otherwise made available to the Select Committee the materials
sought by the subpenas. The defendant President's refusal to
comply with the subpenas was announced in a letter of July 25,
1973> which was addressed to Chairmaji Ervin and received by him
on July 26, 1973. (This letter is appended to the complaint as
Exhibit E.) In justification of his refusal to comply with the
subpenas, the defendajit President relied in part on reasons
stated in letters from him to Chairman Ervin dated July 6 and
July 23, 1973 (which are appended to the complaint as Exhibits
P and G) ,
8. The defendajit President has not moved in this Court or
ajiy other Court to quash, modify or narrow the scope of either
subpena.
667
-4-
9. Seven individuals — G. Gordon Llddy, E. Howard Hunt,
James W. McCord, Bernard L. Barker, Frank A. Sturgis, Virgllio R.
Gonzales and Eugenio R. Martinez — have been indicted and
convicted, by plea or verdict, for their complicity in the
break- in of the Democratic National Committee Headquarters at
the Watergate on June 17, 1973. The eight-cotmt indictment
in their case charged these seven individuals with the crimes of
conspiracy to commit an offense ajid to defraud the United States
(l8 U.S.C.837I), second degree burglary (22 D.C. Code i I8OI (b)),
illegal interception of wire communications and attempted illegal
interception of wire and oral communications (I8 U.S.C.
8 2511), and illegaJ. possession of intercepting devices
(23 D.C. Code § 543 (a)). Two other individuals, Jeb Stuart
Magxnider and Frederick LaRue, both high officials in the Committee
to Re-elect the President, have pleaded guilty to criminal infor-
mations in lieu of indictment charging them with a conspiracy
to commit an offense or to defraud the United States. The acts
listed by one or both of these two informations as part of
such conspiracy include the preparation and presentation of
false testimony to the Federal Bureau of Investigation, the
Grand Jury and at trial, the payment of cash funds to the
seven defendants to ensure their silence, the destruction of
incriminating records and the misrepresentation that the
Central Intelligence Agency had an interest in limiting the
criminal investigation. John Wesley Dean III, and Herbert Lloyd
Porter have also admitted their participation in a conspiracy
to cover up the true facts of the Watergate episode. E.g.,
S. Tr. 1483-85, 2400, 2432, 2463, Testimony before the Select
Committee, if believed, would tend to implicate yet other
important former governmental and Committee to Re-elect the
President officials in a conspiracy to obstruct Justice and
other illegaJ. conduct, including, e.g., John D. Ehrlichman,
668
-5-
H. R. Haldeman, John N. Mitchell, Robert C. Mardian, and
Herbert W. Kalmbach. See, e.g., S. Tr. 1899-I9OI, 1907, 1913-1^,
2063-64, 2171-73, 2183, 2196, 2199-2200, 2211-16, 2253, 2259,
2260-65, 2267-71, 2272-73, 2299-2300, 3174-78, 3578-79, ^992,
5018-20, 5031-34. In fact, there, is evidence that, if
believed, would tend to implicate the defendant President in
criminal conduct. See, e.g.. Paras. 11-15 below and S. Tr.
2621, 2352-53, 2397, 4783-84, 5147-^8. There is also testimony
that would exonerate the President and others who have been
accused. S. Tr. 3287, 3301-03, 3307-08, 3355-58, 3375-79, 3^l6-
17, 3322-23, 3332-33, 33^2, 3^35-^0, 3799, 3803, 5^19-37, 5^65,
5716, 5721-22, 5784, 6037-6130.
10. The subpena appended to the complaint as Exhibit C
directed the defendant President to make available to the
Select Committee certain specified electronic tapes that
recorded five personal conversations "between President Nixon
eind John Wesley Dean III, discussing alleged criminal acts
occurring in connection with the Presidential election of 1972."
^i/^phasis added/ The five conversations occurred on September 15,
1972i February 28, 1973; March 13, 1973; and March 21, 1973,
there being two conversations on the last mentioned date. The
various accounts of the pertinent portions of these conversations
are summarized in Paras. 11-15 below.
11. On September 15, 1972, the President met with John
Dean and H. R. Haldeman from 4:27 p.m. to 6:17 p.m. This
meeting took place shortly after the indictments of the seven
original defendants had been issued. Different versions of
this meeting have emerged.
(a) The DesJi version: When Dean entered the Oval
Office he fo\ind the President and Haldeman "in very
good spirits and ^is/ reception was very warm and cordial."
669
-6-
The President said that "Bob . . . had kept him posted on
Jean's/ handling of the Watergate case." The President
remarked that Dean "had done a good Job" and that he "was
pleased the case had stopped with Liddy." Dean said that
while he "had been able to contain the case and assist in
keeping it out of the White House," he "could make no
assurances that the day would not come when this matter
would start to unravel." Dean told the President that
Committee to Re-elect the President lawyers in the civil
suit "had been making ex parte contacts with the Judge
handling the case and that the Judge was very understanding
and trying to accomodate their problems," which "pleased"
the President and caused him to state, "Well, that's
helpful." Dean testified that, after the meeting, he had
a "conviction" that the President was aware of the details
of the cover-up. See, e.g.. Exhibit H to the complaint,
S. Tr. 2229-33, 3l66.
(b) The Haldeman ver3ion(prepared after he heard
the tape of this meeting): "The President knew John Dean
had been concentrating for a three-month period on the
investigation for the White House /bx^A/ 1 am sure therefore
that the President thought it would be a good time to give
Dean a pat on the back." "There was no mood of exuberance"
but "it was good news „ . . there was not any involvement
by anyone in the White House. This confirmed what Mr. Dean
had been telling us, and we had been reporting to the
President over the period of the past three months." The
President did not say, "'Bob had kept me posted on your
handling of the Watergate' or anything remotely resembling
that;" but instead said, "'Hi, this was quite a day, you've
got Watergate on the way' or something to that effect"
670
-7-
and later did "commend Dean for his handling of the
whole Watergate matter." Dean said "It had been quite
a three months." While there was "some discussion about
Judge Rlchey hearing the civil case and a comment that he
would keep Roemer McPhee abreast of what was happening, "
Heildeman recalled no "comment about the Judge trying to
slow down the suit." Deaxi Indicated "there was apparently
no Information that would be harmful that had not been
uncovered already." Haldeman disagrees "with the conclusion
that the President was aware of any type of cover-up" and
states that "certainly Mr. Dean did not advise him of It
at the September 15th meeting." See, e.g.. Exhibit H to
the Coii5)lalnt and S. Tr. 6090-93 .
(c) The White House versions: J. Fred Buzhardt,
Special Counsel to the President, in his oral briefing to
Fred Thompson, Select Committee Minority Counsel on the
contents of the Dean PresidentiaJ. conversations (see
Para. 23, infra, and Exhibit J to the complaint) stated
only that Deaji reported on the Watergate indictments. The
defendajit President, in his August 22, 1973, San Clemente
news conference, stated that Dean, on September 15*^1,
declared that "there was not ... 'a scintilla of
evidence' indicating that anyone on the White House staff
was involved in the j)lanning of the Watergate break- in."
(Emphasis added) See Washington Post, August 23Ri, pp. itLO-12.
12. The February 28, 1973, meeting was between Dean and
the defendant President alone and lasted from 9:12 a.m. to
10:23 a.m.
(a) Dean version: Deem told the President that he (Dean)
"was eilso involved in the post-June 17th activities
regarding Watergate" and described to him why he "had
legal problems," i.e., he "had been a conduit for many
671
-8-
of the decisions that were made and, therefore, could be
involved in an obstruction of justice." The President
"would not accept his analysis" and told him he (Dean)
"had no legal problems." See, e.g.. Exhibit I to the
complaint, S. Tr. 2317.
(b) White House versions: According to Buzhardt,
Dean said there was no White House involvement in Watergate,
that Maurice Stans was a victim of circumstances and that
Charles Colson was a lightning rod because of his
reputation. See Exhibit I to the complaint. The President,
in his August 22nd news conference, did not specially-
deal with this meeting but did say that Dean, from
September 1972 through March 1973 assured him that no one
in the White House was Involved in the "plajining" of the
Watergate break-in. Washington^ Post, August 23, 1973>
p. All.
13. On March 13, 1973, the defendant President met with
Dean from 12:02 p.m. to 2 p.m. Mr. Halderaan was present from
12:43 p.m. to 12:55 p.m.
(a) Dean version: Deem told the President about the
"money demands being made by the seven convicted defendants
. . . ," After Haldeman came in. Dean told the President
"that there was no money to pay these individuals to meet
their demands. He asked how . . . much it wo\ild cost."
Dean estimated "as high as a million dollars or more" and
the President said "that was no problem. " Dean said the
principal money demands came from Hunt. The President
then said "Hunt had been promised Executive clemency,"
that "he had discussed this matter with Ehrllchman" and
that, to his annoyance, "Colson had also discussed it with
him. later." The President asked Dean how the money was
being paid to the defendants. Dean said, "The money was
672
-9-
laundered so it could not be traced and then there were
secret deliveries." See, e.g.. Exhibit H to the complaint;
S.Tr. 2323-25.
(b) Haldeman has no recollection of the events of
the March 13th meeting. See Exhibit H to the complaint.
S. Tr. 6100,
(c) White House versions: Mr. Buzhardt's reconstruc-
tion of this meeting omits all the Dean account presented
above. According to Buzhardt, the President asked if
Mitchell and Colson knew of Watergate (presumably beforehand)
and Dean replied that there was nothing specific on Colson,
he didn't know about Mitchell but Gordon Strachan could
be involved. However, the defendant President, in his
Aiigust 22nd news conference, stated that Dean had assured
him from September 1972 through March 1973 that there had
been absolutely no White House involvement in the
"planning" of Watergate. Washington Post, August 23, 1973>
p. All,
l4. Dean met with the President on the morning of March 21,
1972, from 10:12 a.m. to 11:55 a.m. The White House log of
Dean Presidential meetings states that "Mr. Haldeman was also
present for at least part of the time." See Exhibit I to the
complaint,
(a) Dean's version: Dean's purpose in this meeting
was to give the President "a full report of all the facts
that ^e/ knew and explain to him what /Tie/ believed
to be the implication of those facts." He began by saying
"there was a cancer growing in the Presidency" and that,
if it were not removed, "the President himself would be
killed by it." Dean discussed the planning of the
Watergate affair and its implementation. He discussed the
January and February planning meetings, and mentioned he
had Informed Haldeman of them and received instructions
673
-10-
from him to have nothing to do with the project. He said
that Colson had put some pre-Watergate pressure on
Magruder relating to the operation, but that he did not
have the facts as to the degree of pressure. He said he
was not sure if Mitchell had prior knowledge of the break-in,
but had been told that both Mitchell and Haldeman (through
Strachan) had received wiretap information. Dean then
recounted "the highlights /of/ the cover-up." He said that
he, Ehrlichman, Haldeman, Mitchell and Kalmbach had been
involved in raising and paying money to the defendants to
achieve their silence. He said that money demands from
the defendants, especially Hvint, were increasing and that
Hunt was threatening to reveal the "seamy things . . .
he had done for the White House," if his requirements were
not met. Deem told the President that Magruder had
committed perjury before the Grand Jury with Dean's
assistance. He stated that more money ajid more perjury would
be required "to perpetuate the cover-up." It was not until
Dean had made this presentation that Haldeman came into the
President's office. See, e.g.. Exhibit H to the complaint;
S. Tr. 2329-233^.
(b) Haldeman version (after hearing tape of conversa-
tion) : Dean said no White House personnel were involved in
plajining of the break-in; Magruder was aware of the
operation but he was not sure about Mitchell's knowledge.
Dean was concerned that Colson «s call to Magruder showed
White House pressure and that Haldeman through Strachan had
received the "fruits" of the operation. Dean said he
made a report to Haldeman after the second planning meeting.
Regarding the post-June 17th situation, he indicated concern
about two problems, money and clemency." He said Colson
had spoken to Hunt regarding clemency. The President said.
34-966 O - 74 - pt. 1 - 44
674
-11-
and Dean agreed, that the President could not offer clemency.
Dean said he, Kalmbach and Haldeman were involved in money
matters, and gave details of their involvement. He
reported on Hunt's current "blacJkmail threat " that unless
he received $120,000 he would reveal the "»seamy things' he
had done for Ehrlichman." Dean said a million dollars
eventually would be needed. "The President said, 'There
is no problem in raising a million dollars, we can do that,
but it woiold be wrong.'" The President inquired as to how
this money cotild be paid and Dean discussed laundering
procedures. Haldeman believes Dean is confusing the
meetings of the 13th eind the 21st because there is a
similarity between Dean's version of the meeting on the 13th
and Haldeman 's view regarding the events of the 21st.
See, e.g.. Exhibit H to the complaint; S. Tr. 6112-15.
(c) Buzhardt version: Dean at first said there
was no White House knowledge of Watergate prior to June 17,
1972, but then stated that Strachan probably knew and that
possibly Haldeman, through Strachan, had seen the "fruits"
of the wiretaps. He said Magruder probably, and Mitchell
possibly, had prior knowledge. Also, Colson had made a
call to Magruder relating to the operation. Ehrlichman
was viilnerable because of his approval of Kalmbach' s fund-
raising efforts. Hunt was trying to blackmail Ehrlichman
and might ultimately have to be paid a million dollars.
The President stated that blackmail was wrong, would not
work and that the truth would come out anyway. Dean saii
Colson talked to Hunt regarding executive clemency. He
said possibly Haldeman, who had been involved in the return
of $350,000 to the Committee to Re-Elect the President,
and Ehrlichman had no legal guilt in regard to money matters.
675
-12-
He said nothing in regard to his role regarding money,
nor did he discuss his part in the Maigruder perjuiy. See
Exhibit I to the con5)lalnt.
(d) Defendant President's version at August 22, 1973,
news conference: Dean was concerned about raising "hush
money" for the defendants. He said there was an attempt
to blackmail the White House by one defendant and that, if
$120,000 was not paid, this defendant would reveal his
activities in national security matters for which
Ehrlichman had "particular responsibility." The President
said the figure Dean mentioned as xiltimately needed —
one million dollars — could be raised but that "it's
wrong. It won't work," without executive clemency, which
he coiad not give. The President said that getting the
money to the defendants was also a "problem" that would
make any payoff plan unworkable. The President gave
directions "to get this story out."
15. On the afternoon of March 21st, the President met
with Dean from 5:20 p.m. to 6:01 p.m. Haldeman was present the
entire time, Ronald Ziegler from 5:20 p.m. to 5:25 p.m. and
EhrlichmaJi from 5:25 p.m. to 6:01 p.m.
(a) Dean version: Dean testified that he told the
President, with Haldeman and Ehrlichman present, that Dean,
Haldeman and Ehrlichman "were all indictable for obstruction
of Justice." He said it was not possible to perpetuate the
cover-up and he would no longer participate in it. See,
e.g.. Exhibit H to the complaint j S. Tr. 233^-35.
(b) Haldeman version: The meeting dealt with
questions of the Grand Jury, the Senate Committee and
executive privilege. Ehrlichman stated he believed
everyone shoiild go to the Grand Jury; Dean said that would
be appropriate if they all first obtained immunity.
Ehrlichman was opposed to this idea. See, e.g.. Exhibit H
676
-13-
to the complain t| S. Tr. 6118.
(c) Ehrlichman's version basically corresponds with
Haldeman ' s . See, e.g., S. Tr. "STlS-lS, 5650.
(d) Buzhardt version: It was tentatively decided
that everyone would go to the Grand Jury. Dean, however,
wanted immunity. Ehrlichman opposed this and also
suggested that no one should claim executive privilege.
Haldeman recommended that the whole affair be reduced to
paper and the resulting document then released by the White
House. The President instructed that these matters be
discussed with Mitchell. See Exhibit I to the complaint.
16. In regard to tapes of the five foregoing conversations
and other tapes informally requested by the Select Committee,
the defendant President, in his letter dated July 23, 1973, to
Chairman Ervln (Exhibit G to the complaint) stated:
"The fact is that the tapes would not finally
settle the central issues before your Committee,
Before their existence became publicly know, 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."
17. The subpena appended to the complaint as Exhibit D
directed the defendant President to make available to the Select
Committee documents ajid other materials "relating directly or
Indirectly to /an/ attached list of Individuals and to their
activities, participation, responsibilities or involvement in
any alleged criminal acts related to the Presidential election
of 1972." (Emphasis added)
18. Plaintiffs and their counsel have not seen the
documents subpenaed and therefore cannot identify them with
specificity. However, testimony before the Select Committee
suggests certain documents within defendant President's
possession, custody., and control that the subpena may cover,
for example:
677
-14-
(a) The notes taken by H. R. Haldeman on yellow
legal pads during his conversations with the defendant
President respecting Watergate and related matters.
Mr, Haldeman testified that the pages on which these notes
were recorded are, in bulk, less than 1/8 inch in thickness.
S. Tr. 6054.
(b) The daily news summaries prepared for the
defendant President that contain in the margins or otherwise
his handwritten comments and instructions relating to the
Watergate affair. S. Tr. 2555.
(c) The various memoranda concerning the ITT affair
referred to in a meraorajidum from Charles Colson to
H. R. Haldeman, dated March 30, 1972, that was marked for
identification before the Select Committee (see S. Tr.
6655) and is attached to this statement. The White House
has already turned over aji ITT file to the Special
Prosecutor that may contain one or more of these memoreinda
or other materials that are covered by the Select Committee's
subpena,
19. The defendant President has himself revealed and has
authorized and allowed his aides and subordinates, both present
and past, to reveal, the subject matters and contents of the
materials sought by the two subpenas, as discussed in paragraphs
20-24 below.
20. In his statement of May 22, 1972, the defendant
President declared:
"/E7xecutive privilege will not be invoked as to
any testimony concerning possible criminal, conduct
or discussions of possible criminal conduct, in
the matters presently under investigation, including
the Watergate affair ajid the alleged cover-up."
The defendff-nt President' entire statement of that date is appended
678
-15-
to the complaint as Exhibit J. The testimony before the Select
Committee from former and present aides and subordinates to
defendant President relating to the criminal conduct under
investigation by the Select Committee has been voluminous.
21. The defendant President's counsel, Leonard Garment,
stated in a letter of June 19, 1973, to John Wesley Dean III,
the defendant President's former coxmsel, that the defendant
President would invoke neither executive privilege nor the
attorney-client privilege in regard to Mr. Dean's testimony before
the Select Committee. (This letter is attached to the complaint
as Exhibit K. )
22. The defendant President, in July 1973, had certain
tapes, including the tape recording of his conversation with
Mr. Dean on September 15, 1972, delivered to H. R. Haldeman, a
private citizen. Mr. Haldeman was asked by the defendant
President to listen to the September 15th tape in order to assist
the defendant President in preparing a response to the allegations
made by Mr. Dean regarding that meeting. The defendant President,
by his counsel, subsequently advised Mr. Haldeman that he would
not invoke executive privilege in regard to Mr. Haldeman 's
testimony before the Select Committee concerning the contents
of the September 15th tape and a portion of the March 21, 1973,
tape (to which Mr. Haldeman also listened) that recorded the
discussion between the defendant President and Mr. Dean during
the time Mr. Haldeman was present. (See letter of August 10,
1973> to Chairman Ervin from Frank H. Strickler, Haldeman' s
attorney, which is attached to this statement.)
23. In early June 1973, the White House transmitted to
the Select Committee a memorandum listing the oral comiiunications,
both face-to-face and telephonic, between the defendant Pxesident
and Mr. Deain in 1972 and 1973. This memorandum also detailed
the dates and times of these communications and, in the case of
679
-16-
f ace-to-face meetings, the locations of those meetings and the
other participants. If any. Subsequently, Fred D. Thompson,
the Select Committee's Minority Counsel, received a telephone
call from J. Fred Buzhardt, Special Counsel to the President,
during which Mr. Buzhardt, In considerable detail, gave
Mr. Thompson his understajiding of the contents of certain
communications between the defendemt President emd Mr. Dean.
Mr. Buzhardt 's reconstructions were immediately reduced to a
memorandum by Mr. Thompson. See Exhibit I to the complaint.
24. In his Ssm Clemente press conference on August 22,
1973j defendant President presented his views as to portions
of the conversations between him and Mr. Dean on September 15,
1972, and March 21, 1973. His conclusions as to the contents
of the tapes, found in his July 23rd letter to Chairman Ervln,
is quoted above at Para. l6. Moreover, his May 22nd statement
(Exhibit J to the con^jlaint) contains his version of the entire
Watergate affair.
Respectfully submitted.
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
Samuel Dash
Chief Counsel
Fred D. Thompson
Minority Counsel
Rufus Edmlsten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
SpecieQ. Counsel
Ronald Rotunda
Assistaint Counsel
United States Senate
Washington, D.C. 20510
Telephone Number 225-0531
Attorneys for Plaintiffs
680
£X/2.L I
March 30, 1972
memohandum fori
FKOMj
SUDJECTi
H.R. HALDENLAN
CHARLES COLSON
ITT
Thore aro four points in tho anal/.ils you outlined to MacGregor and
mo thia morning with which .Vi.^cGrrgor, Wally Johnion and I dl»agr«et
1. Mitchiill, Kloindicnat or Mardlan doaling v/lth Eastland and
.\iaeC»r?!.';or prosunin'oly daaling with the other momb'^ra of the
Conirruttoo gviarantjua a divided npnroach. One or the other
has to jraLi tho ahotj. rClclndianot has ;droady this mornina
told MacGror;or that lie, MacGrcgor, ohould not deal with any
of th\3 other Republican Senators (Scott, CooU, etc. ) but rather
should deal only through Hruska. In tho Idnd of day-to-day
oparatlon this la, that l9 simply an untenable arrangement. *
I know you and the Prcsidont aro concomed that all of us are
talccn away from othar more ln^p>ortant mattors. You ehotild be,
however, equally concornod that MltchoU in the last 30 days has
done littlo with reapect to tho campaign and that may be a mora
serioua lo99 than ?/'acGregor'B time and mine.
2. On the ooo hand, you have the asnessmont of Kleindienat, Mardlaa
an-J .Mitchell as to what will happen in tha Committee and on the
l^loor. On the other hand, you have tha IciilBlatlvg a33083nnent
of MacGrrtgor, Coljon nnd Johneon which lo vrry different.
(Johnson 'jpont fro.ii 1960-1970 ao Minority Counaol of thla
3amn Committee and hao boen involved in nil of tho confirmation
battlco of thia Atlminlutr,\tion oithwr from tho Committee end or
from tho Jualnc= Department end. lie loft tho Committee to go to
Ju3tlc3 In 1970. MacGroxor apont 10 yoars in Congress, I apent
',\ Z /.iir.-i r.3 a -i-iniar oonate Tjiliitant ind 1 yoarj in la-^r practice,
involving eery conjiJurablo contact v/ith the Hill. The Justice team
ulmply has not had tho aame experience. )
681
<£)< liif-
and I unaoimously do not oeliove tiiac Micinuiunjc caa be s;-j.-ulrme<j^
by Juno 1. Johnaon dons not feci he cm l)r onfir-rTr-J .-it all ;-.nd
on lliia point I am at loast doabtful. I ci.iphaair.o tJi.it tliia ij an
opinion and a judr^niont call. L/Ots of thln'^a could happcni V/e
could get a blj break in tha caao; tlio mrdia coulJ turn around
and become sympathetic to Kleindlenat; t!io Democrat* could
decldo that thoy aro bettor having liinr\ In the job tiian b.^atin^
him. Obviously, there aro many unforosoon pouoibiUticB, but
as of now tiiat is our beet ;?- jsejsmcnt. I would tliink tliat v/hat»
?v3r Jacialon w » r.-ia,<o now I'lO'ild oo liaa-sd -n !hs 'riost kno'v-
Irdgabla -- and I would add tha nnost detached -- asaeanTnent
of our Icj^lJlati/o pro3p«ct».
\Vally Johnson has done a detailed analysis of tha various procod»
ural moves thut r.rc llkoly to be mado in Conrimittao or on tho Floor*
Ho Is not nhontin^ from tho hip. lie has analyzed it and a Senata
vote In hlj judgment cannot be aciiieved L)y June 1; tho Domocratj
will only l:?t it ::omo to a vote If chey have votes to reject IClaln-
'Jicnjt, v.hlcii «J the least di^sirablo oulcome, r.'-jilher Johnson,
'/acGr'iijsr or C~IjOn are prepared to prrJict v,-i;-:hor \ve caa
ho'.J tho votiis n^c^aaary to confirm him should the non-unatJoa
In fact z^^ '"^ •"* vote.
/•aiurrun,} .' 'acGrs •,oT, jDh.ison and Colioa aro- comet, then
setting Jjne 1 33 cur de^uliae d-:^ merely patJ J i-. hard J.-cUian
o-'^ to i time -.hen it vnll ba con^i-Jer ably more vo\-,tile poUticaUy
th'an it i3 today. Kleindiena t".-, withdrawal will thon b^ .nn adnus.ioa
of d"foat but it will come two moat:i3 closer to tho election. Tnaro
will have been fvo months more of rancor and pubbaity. la .uno
iaaindion3t will ba a hot issue for th. Democratic Convention.
Conflm^ation of laoindlensfo replacement will a 30 be v«atly
mora difficult in June than it would be now. Oovlously this agala
l3 opinion.
T.„ most 3orioa. rl.l. to. "^ lo b.i„;. Ignored ia lh= ■''"-'l"''^";'
ex-K..ai« by tho contmu.,tlon ol ll.ia cootrovcr:./. Klclnd.cn.t i.
I < (c-\i i''ici'. »! r.'M'.jn.. a.- »
682
Exi^if-^
-3-
t'a« vicibiUty of lh« ITT m-att«r and, lada'sJ, guarantooa that
the caao vt\\\ Btay alive. It may alay alivo ia any ovrnt anJ h«aco
th>» kay quo«tloa not addroflsod In your noal/sla lo whsthor poo-
d-^ncy or xHthdrav/al ol iho iQolndieast nomioailoa oorvoa to
increase tho Dcmocrat'o doalro to coatlouo. That is iho hardaat
call to mako but for tho lollowiag r-saaona it may bo tho m<>«t
Important point to malui.
i
Mother :<lclodleoot, MltchoU nor Mardlon kaow of tho potacttUl
.1-ia:59r3. I have dolibomtely not told ".•Ilaindicnat or MitchsU
aince both may bo rocailad aa 'wttnoasoa and .Mardiaa do«a Dot
undoratand tho probl«»m. Only Fre4 Jloldin^. myself and Ehrllcl*-
rnaa have folly oxamlnad all tho r^ocomeata and/or ioformatloa
that coMd yofc com* oat« A attmmary of ooma oi th«s« l» attached*
683
tK(<lff
!• Certain ITT flloa v/hlbch wero not ahrodded Uavn been turned
ovar to tha DEC; there was talk /cstorday in the Comnriittee
of subpooDalng taeao from ITT. Theee fllos would undermiae
Crlswold's teatlmony that hs made tha dcclaion not to take the '^■■
'appeal to the Suprome Court* Correspondence to Connall/ and
Peterson crodit* tho dola/ in Juatico' 8 filing o£ the appeal to
thoi Supreme Court in the Grloell case to direct Intervoattoo
^ by Peterson and Connail/* A memo sent bl tho Vice Prcaldsqt*. .
addressed **De»x Tod"* from Ned Cerrity toads to contradict
John Mitchell's testimony becauae it outUoea Mltcholl's ajroo*
meat to talk to McLaren following Mitchell's mieetlng wlta
Goneen la Au'4uist 1970.
It would carry some weight In that the memo was writt/sn contam*
poranoous with tha mcotiag* Doth Mitchell and Geneoa have
J tQHtl/Aod thoy rlLscussed policy only, not this casa» and that
^.iitchell talked to no oao olso. Tha memo further states that
F.hrllchtnaa aast;ired Geneen that tho President had "instrucjted'*
tho Justice Department witls respect to tho blqness policy.
^ (It Is* of course* appropriate for tho President to Instruct tha
'- ■«;. Tuatitre Department on rxilicy, but in tlio contaxt of these hsaxiagv^
:^. that rovelation would l^y this caso on the President's dooratsp.)
. Tbars Is another Internal Ryan to ^!e7rl^m nicmo^ which Is not
In tho hands of tho SEC: It follows the 1970 A^new meetlns ^nd
sa^gests that Kleindienst la the koy man to pr-iniMxe McLaren^
Implying that the Vice President would imp^ , -R<>nt this acttoo*
T/o bellovs that all copias Of this have been destroyed.
2* Thore is a Kloln to Haldaman memo dated Juno 30, 1971 which
of course pracedes tha date of the ITT sottlement, setting fort^
tha $400, 000 arrangement with ITT. Copies wee addressed to
Magrudor» Mitchell and Ttnunons. This menco put the AO on
.constructive notice at least of tho ITT commitment at that timo •
.' nnd boforo the settlement, facts which he hasidenied under oath.
. '.Vc don't know v/hother we havs recovered all tho copies. If
. fcnownp this v/ould be considerably more damaglnij than Illoneka's
statement. Majrudsr belisvcs It ia possiblo* tho AG transmlttsd
his copy to Magruder. Wagrudor doesn't Ivavo tho copy ha reolve^}
ho only has a llnrox of tho copy. In short, despite a search tbia
m«tmo could be hrlog arouad anywhere at 173!^^^ .
684
^£x/^^/^.^
e
3« Tjoi JuoUco Dopartmoat has thus far roalatod a requ«9t /or their
° file*, aUhoQsh their illo* wero op«aod to Rob«rt Ilarmnond. one
= V o£ Tum«r*9 deputlon «\ad a hold«ovor T7ho la now a practiclag
Democratic lawyer in V/nahiogtoa. Hammond had access to aovera\
momos that could bo embarsiaalng. Whether hs kopl them or not
is unkno^m, bat it la probablo that bd rocalLs thoni. Oao la a xnomo
of April 1969 from Klaiodiooat aad McLarca to Ehrllchmaa r«*poa*'
dia,':; to '^a Zhrllchrnaa rc^qaoflt vrith respect ot the rationale for
^ b. iQsiag tho c»a<» a^alojit ITT la tho first place. Tharo la a
r.uJbciequcnt April 2970 momo from HuUio to McLaraa statLog
WisX >Ihrlichinaa had disciunod hia mcetlog with Gencon vdth.
vLiV AC, and suggcotl^g; to McI>aron that MltchoU could 3IV0
McLaren "mora flpocLiiad g\iidnoee". Thero Is ^ootl^cocrmamo
oi Jeptanrbor 1970 from Zhrlichuvaa ta the x\G reiarrinj to aa
"uad^rakaadlnij'* \vith Goncon and comnlaialns of McLaroa*0
actt4»ns. Thoro l« a Ma/ 5, 1971 momo from Ehrllchman to
tha AG allodlng to dlacusuloao botwoantho Prosldoat and tha
■ AG 39 to tho "a^rood uooa ondo'* la tho resolotioa of tha ITT
caa« and aaklos tho AG rj^hothor Ehrllchnxaaehoald trork dlrcctlf
*.vlth McLaroQ or throu;^h MitchoU* Thore Is alao a memo to
■ ■'■ tha F^aaldont In tho sam« tlnio porlod. V/a knortr xvo haro control
a' ■ *V.
'<''i: ofatt tho eopto* o£ this, but wo doa't havo control oi tho origiloal
Ehrtifihtnaa nvaixto to tho AG. Thla memo \froald ooc« again cont«a«
i^ . dlck^lltchell's toalinaony and mors Importaotl/ dlroctl/ inrolya .
thtf ?r';sldeatr Wo bcUevo wo havo aboolato oecurity on thls^ta ,
wUhla Juatlc*^ provided no coploa w«ro xxiada within Justice oad ^a,
v^; provldad thoro aro no leaks. Wa hava no Idea of tho dUtribatlonff;
■' •'^'■■t2x^t43®k placawl this* Jus tlco. :'I'^
^^■\~ ... _ • . ' V' ;
. " '^' • ■ .■"-■-'** ■ ~ ' ..
4* ? Isvrlara'a taatttnonf -^Ul ol aacessity invdtvo direct contact with ;
:,» JaeU Gleaaoo* I caa*t hollow that aftor Marriam'a toatiovoaff
' 'CUMtto»tr|Uaofe,^ c^ed aa awitoca^^ _
t^ . * "i.'ii. Y*s~''" -.V • ' ■■*,."' ■'- ' ■• -^ ■ ■ ■' ■*■-' ■
685
nOCER J. WHITEFORO ISM-I
RINGOOIO HART ia*a-i«M
JOHN J CARM00Yi90> iS7i
.ONN J. WILSON
(ARRY L RYAN, JR
JO V. MORGAN, JR
rflANK H. STRICKLER
WtLtlAM C. ROLLOW
CHARLES J. STEELE
,'. JPHN J,CAI|MOOT, JR.
4.\'J».HZS tOWAnO ABLARO
KeVfM W. CARMOOY
£.
law offices
Whitepord, Hart, Cahmody 8c Wilsok
bi5 fifteenth street, northwest
washington, d. c. 20005
' ~"^" -August 10, 1973 ,
TELCMtONE
(202) •>a-04«S
CABLE ADDRESS c.'j,)
WHITEHART WASHINGTON'
COUNSEL
DONALD t. HERSKOVITZ
The Honorable Sam J. Ervin, Jr.
Chairman
Senate Select Committee on
Presidential Campaign Activities
United States Senate
New Senate Office Building, G308
Washington, D. C. 20510
Dear Senator Ervin:
TCLEPHOMC (50I1 BM.-atW'^i
After Mr. Haldeman finished his testimony T had^
a further discussion with him concerning details of his :^ Z',
receipt and return of the President's tapes in July of this,;'
year. Mr. Haldeman has asked me to advise the Select Commitee
of the following details.
'•'</ ..■
-a At;*
.:!?.
:% -Stf
He believes that on July 10, 1973, he received "the
tape machine and the September 15 tape (plus phone call tapes '
for that day) from Steve Bull, who delivered them to Mr. Haldeman
in a case at the residence of Larry Higby. Mr. Bull was on his
way hone ^fhen delivery was made. Mr. Haldeman took them to his ; <,>.
residence later that evening and played the full tape of th^;4>
September 15 meeting. He did not play the telephone tapes.' > '
After listening to the tape, he placed the tapes and the machine
in the case and left same in his closet. ,••.>•
:<i%^
tf''
The next morning, July 11, 1973, Steve Bull doliVerecl^^»>^ ,
tapes of the President's meetings with Dean on three other dateeailJE f
Mr. Haldeman is not sure what the other dates were. He also
believes he was given some telephone tapes, fcr at least somi^ of
the same dates. Mr. Bull delivered these items in a raanila
envelope to the office Mr. Haldeman was using in the Executive
Office Building. Mr. Haldeman took those tapes but, as he
■■■>■■
686
Whitefobd, Habt, Cahm. ^Y & Wilson "i
••• >^. «!,;; • - ' • ;•
J-x: ^ m- " ^ ' i
, explained during the hearing, he did not listen to any of them; ■
- - • . « i '
On July 12, 1973, Mr. Haldeman put the tapes iii ' ''^^
the manila envelope into the case with the machine and othiftr
tapes and returned the whole package to Steve dull, who he . • ■
thinks picked up the case at the Executive Office Buildinl^i V*;'-;-:
I have discussed this matter with Mr. Fred D, ' ;v ' ''^
Thompson, and am following his advice in sending this letter. ' .
to you with the request that it be incorporated into the ., •
hearing record. If you desire a more formal submittal> .; i'j.\, ,
please let me know. v --^ i;^
Respectfully yours.
•j/'-'' Frank H. Strickler '^= '^i ., ^,..
■>.<v
. . . , , -^A
Hon. Howard H. Baker, Jr. V Til "
Kf . Hon. Herman E. Talmadge
■ Hon. Daniel K, inouye
' ; . Hon. Joseph M. Montoya
■V^/ Hon. Edward J. Gurney
;, .' ; Hon. Lo%#ell P. Weicker, Jr.
Hon. Samuel Dash
Hon. Fred D. Thompson
687
ir( A/3
THE WHITE HOU
WASHINGTON
July 30, 1973
Dear Mr* Wilaont
This concerns your inquiry as to the extent of the President's
waiver of executive privilege with regard to the testimony of
Mr. Haldeman before the Senate Select Committee on Presidential
Campaign Activities. Your inquiry was directed to Mr. Haldeman'*
knowledge of the contents of tape recordings of conversations of
meetings in the President's office on September 15, 1972 and
March 21, 1973.
Under the waiver of Executive Privilege stated by the President
on May 22, 1973, Mr. Haldeman is not constrained by any claim
of executive privilege as to conversations at meetings which
Mr. Haldeman attended, if such conversations fall within the
May 22, 1973 guidelines.
•
If asked to testify as to facts which he learned about meetings ot
portions of meetings which he did not attend, but of which he
learned solely by listening to a tape recording of such meeting,
the President has requested that you inform the Committee that
Mr. Haldeman has been instructed by the President to decline to
testify to such matters, and that the President, in so instructing
Mr. Haldeman, is doing so pursuant to the constitutional doctrine '
of separation of powers.
Sincerely,
I
1''
\ -j..;- vx. V _,.
/J. FRED BUZHARDT
Special Counsel to the President
Mr. John Wilson
Whiteford, Hart.Carmody & Wilson
815 Fifteenth Street, N. W.
Washington, D. C. 20005
688
THE ITNITED 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. 1593-73
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D. C.
of Counsel
Arthur S. Miller
Chief Consultant to
the Select Conninittee
of Counsel
Samuel Dash
Chief Counsel
Fred D. Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Cotinsel
Ronald D. Rotunda
Assistant Counsel
United States Senate
Washington, D. C. 20510
Telephone Number 225-0531
Attorneys for Plaintiffs
689
TABLE OF CONTENTS
I, The Court Has the Power and Responsibility
to Resolve the Issue of Executive Privilege
Presented Here 5
n. The Evidence Subpenaed Is Vital to Congress '
Exercise of Its Constitutional Powers 14
TTT, There is no Executive Privilege to Suppress
Evidence Relating to Executive Criminality 18
A. The President May Not Involve
Executive Privilege to Suppress
Evidence Bearing on his Own Possible
Criminality 18
B. There is No Executive Privilege to
Suppress Evidence of Possible Criminal
Conduct by the President's Subordinates ... .21
IV, The Selective Disclosures Already Authorized by
the President Have Destroyed the Foundations of
Any Executive Privilege in this Case 28
CONCLUSION 34
34-966 O - 74 - pi. 1 - 45
690
HISTORICAL APPENDIX
English Tradition 1
The Intent of the Framere 2
President George Washington, 3
President Thomas Jefferson 5
President James Monroe .....5
Presidents John Tyler and
John Quincy Adams .....6
President Abraham Lincoln 7
President Ulysses S. Grant 8
President Theodore Roosevelt. ........ 8
President Warren G, Harding 9
President Dwight D. Eisenhower 10
Affidavit of Stephen W. Stathis and
True Copy of Opinion of
Attorney General Wirt,
January 13, 1818 J2
691
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al.
Plaintiffs
RICHARD M. NDCON, individually and as
President of the United States
Defendant
Civil Action
No. 1593-73
MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
The Select Committee has served upon the defendant President
two subpenas that seek tape recordings and other material relating to
alleged criminal activity in connection with the presidential campaign and
election of 1972. Upon his refusal to honor these subpenas, plaintiffs
instituted this suit. The present motion seeks summary judgnnent for
plaintiffs and a declaration that defendant President's noncompliance with
the subpenas is unlawful.
At the outset this cause must be placed in proper perspective.
This suit does not seek wholesale invasion of the President's files. It
does not request a broad ruling that might hereafter serve as a dangerous
precedent for the conduct of presidential business. Rather, it seeks only
tapes and materials relating to criminal activity in the presidential
692
campaign and election of 1972. There is no doubt that such criminal
activity took place. Nine persons stand convicted, by plea or verdict,
for crimes ranging from burglary to conspiracy to obstruct justice.
What is in doubt, however, are the exact parameters of this criminality.
The Select Committee, by unanimous vote of the Senate, has the mandate
and responsibility to ferret out all the facts regarding the Watergate
affair, both to aid the Senate in its legislative function and, in that
connection, to inform the public, which has a right to know the total
extent of the corruption that has beset our government. The materials
requested by the subpenas will provide crucial facts that will help lay to
*/
rest the severe contradictions and inconsistencies that, so far, abound,—
The President and his counsel asserted that the tapes- and
records sought by the Committee are protected by an absolute executive
privilege. This privilege, they maintain, is fully applicable even if the
materials sought concern communications by presidential aides to the
President about criminal activities in which these aides were involved.
They further assert that the President at all tinnes was engaged in his
proper, official duties and in no way was personally involved in criminal
conduct, and that, while the privilege would dissipate if the President
himself were culpable, this situation does not pertain.
We will dispute below the proposition that executive privilege
covers the communications of an innocent President with guilty aides about
^/ The basic facts relevant to this litigation are set forth in the
accompanying Statement of Material Facts As To Which There Is No
Genuine Issue. In the interest of brevity, these facts will not be repeated
here. For examples of such inconsistencies, see Statement, Paras. 11-15,
where the various versions of the conversations recorded by the subpenaed
tapes are discussed.
693
3 -
their criminal activities, but our arguments in this regard should not
obscure a critical circumstance: Unfortunately, the involvement or
noninvolvemient of the President himself in that congeries of criminal
activities falling under the general rubric of "Watergate" is very much
an integral part of the present investigation. That fact is perhaps best
epitomized by the persistent inquiry of Senator Baker -- "What did the
President know and when did he know it? " John Wesley Dean, HI, in
his sworn testimony before the Select Committee, has accused the
President of complicity in serious crimes. If Dean be believed, the
President may be guilty of several crimes, including obstruction of a
criminal investigation (18 U, S. C. S 1510), misprision of a felony
(18 U. S. C. S 4), conspiracy to commit an offense or to defraud the United
States (18 U. S, C. § 371), and unlawfully influencing a witness (18 U. S. C.
§ 1503), And Dean's charges are consistent with other evidence in the
record that bears on the question of presidential involvement (there is,
of course, also evidence in the record that would exonerate the defendant
President of such charges),— In such circumstances, the Committee
would be derelict if it did not proceed to further examination of the
President's complicity or lack thereof, no matter how distasteful that
task may be.
We proceed below to demonstrate that (1) this Court has
both the power and the responsibility to resolve the issues before it,
(2) the Select Committee is operating within the proper scope of its
c onstitutional investigatory powers, (3) executive privilege does not
protect the tapes and materials sought by the subpenas, and (4) any
*/ Concerning presidential involvement in the Watergate matter, see
Statement, Paras. 9, 11-15.
694
- 4 -
privilege that might have existed regarding the subpenaed materials has
been waived by the selective breach by the President and his aides of
their supposed confidentiality.
695
- 5
I, The Court Has the Power and Responsibility to Resolve the Issue
of Executive Privilege Presented Here.
In demonstrating that the issue of executive privilege
presented by this litigation is fully appropriate for judicial resolution,
it is first helpful to explain why this action is brought in its present
form« In the usual case, the Committee, in addition to bringing suit, would
have two other alternative remedies. (1) It could have its subpena enforced
by the Senate Sergeant at Arms.—' (2) It could initiate contempt of
Congress proceedings under 2 U. S, C. § 192, __' In such circumstances,
the recipient of the subpena could raise a claim of privilege or other
defense to the subpena for judicial consideration either by a habeas corpus
or tort proceeding against the Sergeant at Arms, see Anderson v. Dunn,
6 Wheat 204 (1821), or in defense of a criminal prosecution.
But these other procedural alternatives are inappropriate
methods for the presentation and resolution of the executive privilege
issue that is the focus of the present suit. It would be unseemly to send
the Sergeant at Arms to the White House to arrest the President and
bring him before the bar of the Senate. Moreover, a criminal proceeding
against the President is a manifestly awkward vehicle for determining
the serious constitutional question here presented; a civil lawsuit, with
_' The inherent power of each House of Congress to execute its own
process and punish contempts of its authority was broadly sustained in
Anderson v. Ehinn, 6 Wheat. 204 (1821). See also Jurney v. MacCracken,
294 U.S. 125 (1935); In Re Chapman, 166 U.S. 661 (1897).
__' This statute provides that: "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 . . . willfully makes a default . . . shall be deemed
guilty of a misdemeanor . . . , "
696
its flexibility in the molding of appropriate relief and its greater
opportunities for expedition, presents a far more workable solution for
the speedy determination of the constitutional issue at bar. Compare
Sanders v. McClellan.lSO U.S. App. D. C. 58, 463 F. 2d 894 (1972);
Stamler v. Willis, 415 F. 2d 1365 (7th Cir. 1969), cert, denied sub, nom.
Ichord V. Stamler, 339 U.S. 929 (1970); and see S. Res. 262 (Exhibit B
to the Complaint) authorizing suit by the Committee.— It is these
considerations that have led us to the conclusion that the present action
seeking declaratory and other relief is the most efficacious course to
the resolution of the critically important issue before the Court.
The mere fact that the issue of privilege comes to the Court
by way of suit by the Committee, rather than in a suit by the subpena's
recipient or in his defense to a criminal prosecution, cannot affect the
Court's authority to resolve that issue. Nor is this suit precluded because
it is directed at the President and asks the Court to resolve conflicting
claims of executive and legislative power under the Constitution. Indeed,
in the circumstances presented here, it is the responsibility of the
judiciary, as the neutral third branch of government, to discharge its
role "as the ultimate interpreter of the Constitution, " Powell v. McCormactt,
395 U.S. 486, 549 (1969), and mark the respective bounds of executive and
legislative power.
The Supreme Court has repeatedly entertained and decided
actions that were in form or substance constitutional controversies
between Congress and the executive. For example. United States v. Lovett,
*/ Moreover, we note, although by no means accept, the assertion
of defendant President's counsel that the President may not be
criminally tried until he is impeached (Misc. No. 47-73, Resp.
Brief in Opp. , pp. 7-8, 22^ a position that would, if accepted,
foreclose the alternative of the criminal contempt procedures
embodied in 2 U. S. C. 8 192,
697
328 U.S. 303 (1946), decided that a congressional effort to discharge
designated individuals from government employment by cutting off
salary appropriations was a constitutionally prohibited bill of attainder.
The Attorney General, on behalf of the executive, asserted the invalidity
of Congress' action, while Congress, represented by its own independent
counsel, urged the contrary. In Myers v. United States, 272 U.S. 52
(1926), the Court passed on the President's constitutional power to remove
a government employee from office contrary to congressional statute; the
President was represented by the Attorney Genereil, while Congress was
represented by its own counsel. Congress' constitutional authority to
limit the President's removal power was also at issue in Humphrey's
Executor (Rathbun) v. United States, 295 U.S. 602 (1935). In The Pocket
Veto Case. 219 U.S. 655 (1924), the Court considered the validity of a
pocket veto by the President, who was represented by the Attorney
General, The House Judiciary Committee was represented by its own
counsel before the Supreme Court in opposition to the President's
position. Other cases involving a judicial determination of the
donstitutional boundaries between congressional and executive powers
include United States v. Klein, 13 Wall. 128 (1871) (congressional effort
to curtail presidential pardon) and Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) (presidential seizure of steel mills held unconstitutional
as invasion of Congress' legislative powers). And recent decisions of this
Court have reaffirmed that the principle of separation of powers does not
preclude the Courts from resolving conflicting claims of presidential and
congressional power.*/
*/ Kennedy V. Sampson, F.Supp. (D. D.C. , C. A. No. 1583-72,
August 15, 1973) (Senator's challenge to validity of President's pocket veto);
Williams V, PUiUips. F.Supp. (D. D. C., C. A. No. 490-73, June
11, 1973)(Senatorial challenge to validity of presidential appointment of acting
OEO director without Senate confirmation); fjocal 2677, Government Employ
ees, v. Phillips, 358 F. Supp 60 (D. D. C. 1973)(Presidential "phase-out" of
OEO not authorized by Congress).
698
- 8
Moreover, it is established that the Courts have full
authority to resolve the precise issue presented here -- the validity
of a claim of executive privilege. In United States v. Burr, 25 Fed. Cas,
30 (No. 14, 692d) (C. C. D. Va. 1807), Chief Justice Marshall, on circuit,
issued a subpena duces tecum to President Jefferson, While acknowledging
that the President might object to production if the materials contained
military or other "state secrets, " the Chief Justice plainly indicated that
the validity of any presidential clainn of privilege would be decided by the
Court, See 25 Fed, Cas, at 37, More recent decisions affirming the
power of the judiciary to review executive assertions of evidentiary
privilege are collected in United States v, Reynolds, 345 U.S. 1 (1953),
where the Supreme Court held that "the court itself must determine
whether the circumstances are appropriate for the claim of privilege" and
stressed that "/j/udicial control over the evidence in a case cannot be
*/
abdicated to the caprice of executive officers, " 345 U.S. at 8, 9-10.—
This Court's power to resolve the claim of executive privilege
presented here is confirmed by two recent decisions of the Court of Appeals
*/ The teaching of Burr and Reynolds was recently reaffirmed in E, P. A.
v. Mink, 410 U.S. 73 (1973). Mink in part involved a claim under the
Freedom of Information Act for production of certain documents, relating
to the underground nuclear explosion at Amchitka Islcind, Alaska, prepared
by the "Undersecretaries Committee, " a part of the National Security
Council, "for transmittal to the President as advice and recommendations, "
The Court held that while certain portions of the requested material might
be privileged from discovery by reason of the statutory exemption in the
Freedom of Infornnation Act for "inter-agency and intra-agency memoran-
dums", portions consisting of factual matters would not, and that the
Courts had the responsibility to determine, by in camera inspection if
necessary, which materials were privileged and which not. While Mink
arose under the Freedom of Information Act, the Court explicitly based
its analysis on the general law of executive privilege. See 410 U.S. at
86-89 & d. 12,
699
- 9
for this Circuit. In Committee for Nuclear Responsibility v. Seaborg,
149 U.S. App. D. C, 385, 463 F. 2d 788 (1971), the Court squarely rejected
an executive assertion of unreviewable prerogative to withhold information.
In Seaborg the government asserted a claim identical to that asserted by
the defendant President here: That the executive, relying solely on its
own assessment of the public interest, has absolute constitutional discretion
to decide whether certain materials -- consisting, like the materials
*/
sought here, of intra-executive communications — — should be disclosed.
The Court of Appeals flatly rejected the executive claim in language that
is directly controlling here:
"In our view, this claim of absolute
immunity for documents in possession of an
executive department or agenc/, upon the bald
assertion of its head, is not sound law.
". . . An essential ingredient of our
rule of law is the authority of the courts to
determine whether an executive official or
agency has complied with the Constitution ajid
with the mandates of Congress which define
and linnit the authority of the executive. Any
claim to executive absolutism cannot override
the duty of the court to assure that an official
has not exceeded his charter or flouted the
legislative will.
". , . Otherwise the head of an executive
department would have the power on his own say
so to cover up all evidence of fraud and corruption
when a federal court or grand jury was investigating
malfeasance in office, and this is not the law. "
And in Soucte v. David. 145 U.S. App. D.C. 174, 448 F. 2d 1067 (1971), which
arose in the context of the Congress' regulationof executive privilege through the
Freedomof Inf or nnation Act, the Court of Appeals confirmed judicial authority to
^/ The materials related to the proposed tinderground nuclear test at
Amchitka.
700
-10 -
review an executive assertion of constitutional privilege against the
congressional command of disclosure:
"If the Government asserts a constitutional
privilege /"to withhold informatiorT/ ... the court
will not thereby be deprived of jurisdiction, for
the judicial power extends to resolving the questions
of separation of powers raised by the constitutional
claim . . . . " 448 F. 2d at 1072 n. 11.
In support of its conclusion, the Court of Appeals cited Powell v.
McCormack, 395 U.S. 486 (1969), which held that the separation of
powers principle does not preclude judicial resolution of an issue unless
the language of the Constitution discloses a "textually demonstrable consti-
tutional commitment of the issue to a coordinate political department. "
395 U.S. at 518, quoting Baker v. Carr, 369 U.S. 186, 217 (1962). As we
elaborate at greater length below, see p. 23 » lnfr% the Constitution
does not so much as mention any executive privilege to withhold information
from Congress. Accordingly, there can be no claim here that there is a
"textually demonstrable constitutional commitment of the issue" to the
executive that would preclude the judiciary from deciding this case.
Finally, the fact that the claim of executive privilege is
here asserted by the President and that he is named a party to this
action does not make the case inappropriate for judicial resolution. As
the Supreme Court has made clear in decisions such as Youngstown Sheet
& Tube Co. V. Sawyer, supra (presidential seizure of steel mills), and
Humphrey's Executor (Rathbun)v. United States, supra (presidential
removal power), the conduct of the President is no more immune from
judicial review than is that of any other executive officer. It is, to be
sure, the normal practice in litigation to name a subordinate officer as the
party defendant, even if the conduct sought to be reviewed is in reality the
701
•u-
President's. */ But that course was precluded in this case by the
defendant President's unexplained action in taking personal possession
of the evidence sought by the Committee. Where, as here, effective
relief can only be had against the President, he may be named as a
party.**/ Moreover, since the only relief now sought by plaintiffs in
this action is a declaratory judgment, the question of judicial power to
enforce a command against the chief executive is not before the Court. ***/
*/ For example, in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.
579 (1952), the party defendant was Secretary of Commerce Sawyer, who
had been directed by President Truman to seize the nation's steel mills.
But the real issue decided by the Court was whether the President had
unconstitutionally usurped Congress' lawmaking powers.
**/ See Atlee V. Nixon, 336 F. Supp. 790 (E. D. Pa. 1972); Meyers v. Nixo^,
339 F. Supp. 1388 (S.D.N. Y. 1972); Minnesota Chippewa Tribe v. Carlucci,
F. Supp. (D.D.C., C.A. No. 175-73, April 25, 1973)(8ubBequently
rendered moot by presidential compliance). See also United States v. Burr,
25 Fed. Cas. 30 (No. 14, 692d) (C.C.D. Va. 1807).
In Mississippi v. Johnson, 4 Wall. 475 (1866), the Supreme Court declined to
entertain a bill to enjoin the President's implementation of the Reconstruction
Acts. That decision was, however, based on the nature of the issues involved
--which the Court foiind to involve non- justiciable executive discretion--
rather than the identity of the defendant. By contrast, the issue involved
here the validity of a claim of executive privilege to withhold information
— has regularly been decided by the courts.
***/ While a declaratory judgnnent represents an authoritative resolution of
the legal issues presented, it does not represent a judicial command to the
parties. The President's assertions, in the show cause proceeding brought
by the Special Prosecutor, that courts lack the power to enforce judicial
orders against the chief executive (Misc. No. 47-73, Resp. Brief in Opp.
pp. 5-8, 25-33) are therefore not relevant here. As the Supreme Court
made clear in Powell v. McCormack, 395 U.S. 486 (1969), where it entered
a declaratory judgment in a proceeding against certain officers of Congress,
declaratory relief may be granted "independently of whether other forms of
relief are appropriate." 395 U.S. at 518. Moreover, we assume that the
defendant President will act in accordance with the Court's declaration of
the law whether or not compulsory relief is granted. As the Supreme Court
stated in Powell v. McCormack, supra, at 486, "it is an Inadmissible
suggestion' that action might be taken in disregard of a judicial determination.
702
12
* * ♦ *
The foregoing discussion fully confirms this Court's authority
to resolve the question of executive privilege presented in this action.
Indeed, this case gives rise to an affirmative judicial responsibility to
settle the conflicting claims of Congress and the Executive, We deal here
with an exceptional and fully nnatured controversy between the two branches,
in which the nornnal processes of political accommodation have proved
tmavailing. In these circumstances, to deny an authoritative judicial
resolution of the controversy and leave the Executive and the Congress to
a trial of strength by self help might lead to near intolerable strains on
the constitutional fabric. _/ In fact, as the Supreme Court has recently
observed in an opinion by Mr. Chief Justice Burger, the normal processes
of political accommodation between executive and legislature can apparently
function only where the basic contours of their respective constitutional
powers are settled by the "neutral authority" of the judiciary:
"The check-and-balance mechanism, buttressed
by unfettered debate in an open society with a free
press, has not encouraged abuses of power or tolerated
them long when they arose. This may be explained in
part because the third branch has intervened withneutral
authority. See^ e. g. , United States v. Lovett. 328 U.S.
303(1946)." United States v. Brewster. 408 U.S. 501,
523. (1972).
The present controversy cries out for such intervention. For as Mr,
Justice Jackson pointed out: "Sonne arbiter is almost indispensable when
*/ The theoretical possibility of impeachment provides no answer to
the present controversy. Quite apart from the practical and political
difficulties in mounting an impeachnnent, the unhappy circumstances of
President Andrew Johnson's impeachment proceeding indicate that impeach-
ment should be resorted to with the utmost reluctance when all other alter-
natives are closed. Clearly it is preferable to have a constitutional
controversy between the executive and legislature resolved by the judiciary
as the neutral third branch rather than have the Congress act as judge in
its own case through an impeachment proceeding against the President.
703
- 13
power ... is also balanced between different branches, as the legislative
and the executive .... Each unit cannot be left to judge the limits of its
own power. " _; In such circumstances, "it is the responsibility of
/the judiciaryT to act as the ultimate interpreter of the Constitution. "
Powell V. McCormack. supra, at 549-
*/ Jackson, The Struggle For Judicial Supremacy 9 (1941)
704
14
U. Thp Evidence Subpenaed Is Vital to Congress' Exercise of
Its Constitutional Powers.
Legislative investigations are "an established part of
representative government." Tenney v. Brandhove, 341 U.S. 367,
377 (1951). At least since the 1792 investigation by the House of
Representatives of the St. Clair expedition, Congress has repeatedly
exercised a connprehensive power to investigate charges of mal-
administration and wrongdoing by executive officials. As explained in
McGrain v. Daugherty, 273 U.S. 135 (1927) -- which sustained a Senate
investigation of the Justice Department's role in the Teapot Dome
scandal -- the investigatory power is a necessary component of Congress'
lawmaking powers, for without information it is impossible to legislate
wisely or effectively. But as the Supreme Court also pointed out in
Watkins v. United States, 354 U.S. 178 (1957), investigation of executive
wrongdoing serves other values as well:
"/There is a/ power of the Congress to inquire into and
publicize corruption, maladministration or inefficiency
in agencies of the Government. That was the only kind
of activity described by Woodrow Wilson in Congressional
Government where he wrote: 'The informing function of
Congress should be preferred even to its legislative
function. ' Id. , at 303. From the earliest times in its
history, the Congress has assiduously performed an
'informing function' of this Nature. " 354 U.S. at
200. n. 33,*/
Congress' "informing function" is a necessary component of
lawmaking power because it generates needed public support for legisla-
tion. Moreover, legislative scrutiny serves as a potent deterrent to
official wrongdoing. As Louis D. Brandeis observed, "Sunshine is said
to be the best of disinfectants; electric light the most efficient policeman. '
*/ The Watkins principle was recently reaffirmed by this Court in In Re:
Application of United States Senate Select Committee on Presidential
Campaign Activities, Misc. No. 70-73, June 12, 1973, File Opin, at 17.
**/ Brandeis, Other Peoples Money 92 (1914).
705
- 15 -
And when evidence of such wrongdoing is unearthed in circumstances that
generate doubts as to the executive's capacity to cleanse its own house,
a thorough, public investigation by Congress can play a vital role in
restoring public confidence in the self-corrective processes of government.
In United States v. Rumely, 345 U.S. 41 (1953), the Supreme Court
termed the congressional informing ftmction "indispensable" and also
quoted Woodrow Wilson with approval:
"'It is the proper duty of a representative body
to look diligently into every affair of governnnent
and to talk much about what it sees. It is meant
to be the eyes and the voice, and to embody the
wisdom and will of its constituents. Unless
Congress have and use every means of acquaint-
ing itself with the acts and the disposition of the
administrative agents of the government the
country must be helpless to learn how it is being
served; and unless Congress both scrutinize these
things and sift them by every form of discussion,
the country must remain in embarassing, crippling
ignorance of the very affairs which it is niost im-
portant that it should understand and direct. The
infornning function of Congress should be preferred
even to its legislative function. ' Wilson,
Congressional Government, 303." _Id. at 43.
The above principles are most relevant to the work of the Select
Committee. Created by unanimous vote of the Senate, the Committee is
U
invested with a broad mandate to get to the bottom of widespread but
incompletely substantiated suspicions of serious wrongdoing at the highest
executive levels in connection with the 1972 presidential campaign and
election and to consider the need for corrective legislation. We believ
that the Committee's work to date (together with the work of this Court
and of the press) has achieved partial success in laying bare the extent
of this corruption and restoring a measure of public confidence in our
constitutional system. But the Committee's task is unfinished, and the
_*/ Section 1 (a) of the unanimous Resolution establishing the Connmittee
(Exhibit A to the Complaint) directs it to investigate "the extent, if
any, to which illegal, improper, or unethical activities were engaged in
by any persons in the presidential election of 1972. "
34-966 O - 74 - pt. 1 - 46
706
16 -
evidence which the Committee seeks from defendant President is vital to
the completion of its work.
The subpenas issued by the Committee to defendant, which were
fully authorized by the Senate, — seek evidence whose pertinency and
importance are obvious. The Committee has received conflicting evidence
as to the extent of wrongdoing at the pinnacle of government. As already
noted, there has been evidence tending to show that the Chief Executive
himself was engaged in criminal conduct; see p. 3 < supra. There has also
been evidence tending to exonerate him of such charges. And the extent of
criminality by other officials is also disputed. The pertinent evidence
already obtained consists in considerable part of conflicting testimony by
witnesses regarding their conversations with the President. The Committee
would face difficult problems in resolving these conflicts if its assessment
of the credibility of the respective witnesses were the sole basis of decision,
Fortunately, the Committee's investigations have revealed the existence of
documents and tape recordings of Presidential conversations. This neutral
evidence, bearing directly on the natters in dispute, would prove of
immense and perhaps decisive value in determining the precise extent of
malfeasance in the executive branch.
An informed and accurate determination by the Committee of the
extent of executive wrongdoing would be of great importance to Congress in
deciding the need for and the form of corrective legislation respecting the
conduct of political campaigns. Most particularly, it would aid in a
determination whether legislative regulation of executive involvement in
political campaigns is necessary. The evidence sought is also vital to
♦ /Section? (a)(5) of the authorizing resolution (Exhibit A to the Complaint)
empowers the Committee "to require by subpena or order any department,
agency, officer or employee of the executive branch of the United States
Government to produce for its consideration or for use as evidence in i' •
investigation and study any books, checks, cancelled checks, correspond-
ence, comnnunications, documents, papers, physical evidence, records,
recordings, tapes, or materials relating to any of the matters or questions
it is authorized to investigate and study which they or any of them may have
in their custody or control. "
707
- 17 -
Congress' discharge of its associated informing function. _' How high
executive corruption reached, and whether, in particular, the President
himself was involved, is a great and unresolved public question. The
evidence sought by the Committee promises to aid in the resolution of that
great question. So long as key evidence is withheld, public confidence in the
^^ /
self-corrective processes of government will remain at low ebb. — •
These considerations demonstrate that the evidence the
Committee seeks is of great importance to Congress' discharge of its
constitutional responsibilities. Yet the defendant President has steadfastly
refused to make this crucial evidence available. This refusal flies in the
face of the Suprenne Court's assertion that: "It is unquestionably the duty
of all citizens to cooperate with the Congress in its efforts to obtain the facts
needed for intelligent legislative action. It is their unremitting obligation
to respond to /congressional/ subpoenas." Watkins v. United States, supra,
at 187. Moreover, the effect of this refusal may be to shield the President's
associates, or the President himself, from exposure of wrongdoing. In such
circumstances, does the President have the right to disobey the Committee's
lawfully issued subpenas? That is the question which this Court must
resolve.
j^/ Moreover, the integrity of Congress' own processes is at stake here.
The conflicts in the testimony of witnesses before the Committee rais'- a
serious question whether perjury has been committed. The neutral evi-
dence sought by the Committee would be of vital importance in resolving
that question and in successfully prosecuting any witness who sought to
corrupt and obstruct the Committee's process of investigation.
**/ Even if the Special Prosecutor were to succeed in obtaining the
President's compliance with the subpena issued by the grand jury, this
would not obviate the need for compliance with the Committee's subpenas.
In the first place, even if the grand jury succeeds in obtaining the evidence
it seeks, there is no assurance that it would be made available to Congress
or the public. Second, the scope of the Committee's subpenas is broader
than that of the grand jury's subpena.
708
18
ni. There is no Executive Privilege to Suppress Evidence Relating
to Executive Criminality
As the Supreme Court observed in Gravel v. United States,
408 U.S. 606, 627 (1972), the "so-called executive privilege" has never
been applied to shield criminal conduct. It would be plainly intolerable
if anallowed privilege to promote confidentiality of executive communica-
tions were extended to the point of permitting executive suppression of
evidence bearing on criminal wrongdoing by those in high public office.
If such were the law, an executive official "would have the power on his
own say so to cover up all evidence of fraud and corruption. " Committee
for Nuclear Responsibility. Inc. v. Seaborg, 149 U.S. App D. C. 385, 391,
463 F. 2d 788, 794 (1971). Accordingly, the defendant President may not
lawfully assert any executive privilege to suppress evidence that bears
either on his own possible criminal conduct, or on the possible criminal
activities of his associates.
A. The President May Not Invoke Executive Privilege to Suppress
Evidence Bearing on his Own Possible Criminality
Counsel for the defendant President have already conceded
that he nriay not invoke executive privilege to cloe^ his own wrongdoing.
Thus the Reply Brief filed on behalf of the President in the related show
cause proceeding brought by the Special Prosecutor asserts:
"It is, of course, true that to 'the extent that the conver-
sations between the President and his aide^ do not
concern the legitinnate affairs of Government and the
performance of the offical duties and responsibilities
of the President and his staff they are not protected
by executive privilege, " */
^ Misc, No. 47-73, Reply Brief for Resp. , p. 11 n. 4. The internal
quotation is fronn p. 21 of the Memorandum filed by the Special Prosecutor
in that proceeding.
709
19 -
*/
And the "Brief in Opposition" filed on behalf of the President in the same
proceeding likewise appears to concede that executive privilege may not
be used to suppress evidence bearing on the President's own criminality.-
However, counsel for the President have contended that this principle is
inapplicable to the Watergate affair because the only possible wrongdoing
involved was that of the President's aides:
"But although remarks made by others
in conversations -with the President may arguably
be part of a criminal plan on their part, the
President's participation in these conversations
was in accordance with his Constitutional duty
to see that the laws are faithfully executed, fli' "
With all respect, this simply begs the very question at issue --- whether
the defendant President himself was engaged in unlawful conduct together
with his associates. As we have shown in our Statement of Material Facts,
the Committee has already received detailed sworn testimony which, were
it believed, would tend to implicate the President in the violation of
several criminal statutes. See Statement, paras. 9, 11-15; p. ^ , supra .
Clearly, it caji be no part of the President's "Constitutional duty to see that
the laws are faithfully executed:"for the President to obstruct criminal
Investigations, or engage in misprision of a felony, or unlawfully influence a
witness, or conspire to commit an offense or to defraud the United States.
*/ See Misc. No. 47-73, Resp. Brief in Opp. pp.21-23. At the oral
argument before the Court, counsel for the President conceded that any
executive privilege which the President might enjoy would be limited to
matters relating to the performance of his official duties, Tr. p. 16
**/ Misc. No.47-73, Resp. Brief in Opp, , p.23 (emphasis supplied).
The same unsupported assertion is repeated in Respondent's Reply Brief
in that proceeding, p. 11 n. 4:
", ,., But surely it was part of the President's official duties
to satisfy himself that justice was done in the Watergate affair. That others
may have made remarks to him in the course of his inquiries about this
matter that were part of a conspiracy on their part to obstruct justice, or
may have later perjured themselves about what they said in these conversa-
tions , does not alter the fact that the President's participation was pursuant
to his duty to take care that the laws be faithfully executed. " (emphasis
supplied).
710
20 -
We hasten to add that the Committee has also received
evidence that would exonerate the President of any such wrongdoing.
But the testimonial evidence is conflicting and the President has in
his possession additional evidence --- tapes and documents --- that
could be of crucial and perhaps decisive value in resolving the
conflicting testimony before the Committee and developing the true facts
regarding his involvement. In these circumstances, the principle that the
President may not invoke executive privilege to suppress evidence bearing
on his own possible criminality — - a principle already conceded by the
President's counsel — - is directly applicable. Accordingly, executive
privilege cannot justify the President's refusal to comply with the
Committee's subpenas insofar as they demand evidence bearing on his
own possible criminality, i'
This aspect of the executive privilege issue was obscured
in the show cause proceeding brought by the Special Prosecutor, apparently
because of doubts as to whether the President could be subjected to criminal
prosecution before impeachment, — • and further doubts as to the authority
of the Special Rrosocutor to institute any such prosecution in view of the
President's ultinnate control over the conduct of federal prosecutions.
*/Since the defendant President has not asserted any privilege against self-
incrimination, we put to one side the question whether any such privilege
might be invoked with respect to the recordings and documents involved here
**/ Counsel for the President have asserted that the President is liable to
prosecution only after he has been removed from office by impeachment.
Misc. No. 47-73, Resp. Brief in Opp.,pp, 7-8, 22. While we challenge the
validity of that assertion, it plainly has no relevance to a legislative inves-
tigation.
***/ See Misc. No. 47-73, Resp. Brief in Opp. pp. 24-25, Resp. Reply
Brief pp. 2-8. The Respondent's Brief in Opposition, p. 22, points out that
the Special Prosecutor has based his clainn for the tapes of Presidential
conversations fan grounds "quite apart from anything they show about the
involvement or non-involvennent of the President. "
711
21
But any such doubts have no application here. Ab we have shown, pp. 14-17,
supra, the Congress has full, independent constitutional authority in
connection with its legislative duties to investigate wrongdoing in the
executive branch. Accordingly, insofar as the Committee's inquiry
touches on possible criminal conduct of the defendajit President, at
least in circumstances where the Committee has already received serious
and potentially credible evidence of such criminality, the President may not
lawfully assert executive privilege to thwart the congressional inquiry.
B, There is No Executive Privilege to Suppress Evidence of
Possible Criminal Conduct by the President's Subordinates
The President has asserted an absolute and unreviewable
discretion to withhold from the Courts and Congress evidence bearing on
serious criminal wrongdoing by high executive officials. But, as we have
already shown, pp. 8-3D» supra, the Courts have decisiviely rejected the
claim of absolute privilege. The Court of Appeals for this Circuit has
flatly said that the "claim of absolute immunity for docunnents in possession
of an executive department or agency, upon the bald assertion of its head,
is not sound law. " Committee for Nuclear Responsibility, Inc. v. Seaborg,
149 U.S. App. D. C. 385, 389, 463 F. 2d 788, 792 (1971). In the absence of
any absolute privilege, then, the burden falls on the defendant President
to justify judicial approbation of a claim of privilege that would pernnit
the executive to suppress and withhold from Congress evidence bearing
on the possible criminal conduct of executive officials. As we show,
neither the Constitution, nor precedent, nor considerations of sound
policy justify such a claim.
Courts, it is true, have recognized a limited privilege on
the part of the executive to withhold evidence in the context of litigation
712
22
involving a private citizen. See United States v. Reynolds, 345 U.S. 1
(1953). But, as we will show, even in litigation involving a private
citizen the limited executive privilege gives way when it is sought
to he used to suppress evidence of official wrongdoing. Moreover, we
deal here not with discovery by a private party but with an evidentiary
demand by Congress. The interest of Congress in obtaining evidence
is weightier than that of a private litigant or even, we submit, that of
the grand jury. For however regrettable it might be that a few guilty
individuals go unpunished for want of relevant evidence, there is an
even greater public interest in legislation, should it be required, to
prevent the subversion of high executive office in the future. There is,
moreover, a compelling public need for total revelation of the facts of
the Watergate affair, a need that, most probably, can only be met by
Congress in the exercise of its associated "informing function. " Thus,
even though the executive may enjoy a limited common law—' privilege
in judicial proceedings, it does not follow that it enjoys a similar
privilege in the context of a congressional inquiry authorized by Article I
of the Constitution, for "^^here the President takes measures incompatible
with the expressed or implied will of Congress, his power is at its lowest
ebb . . . . " Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637
(1952) (Jackson, J. , concurring).
Indeed, there are persuasive arguments, based on history,
on the Framers' understanding, and on considerations of sound policy,
that the executive enjoys no constitutional right to withhold any information
from Congress. See R. Berger, Executive Privilege v. Congressional
*/ See 8 Wright & Miller, Federal Practice and Procedure S 2019 at
175 & n.44 (1970 ed. ).
713
23 -
Inquiry. 12 U. C. L. A. L.Rev, 1043, 1288 (1965) f_/ But that broad issue
is not before the Court. We are not concerned here with any
congressional effort to obtain materials bearing on the deliberation of
lawful executive policy. We do not deal with a sweeping request for
personnel files of government employees. The President has not asserted
in response to the Committee's subpenas that vital military or diplomatic
secrets are involved. We deal only with a congressional demand for direct-
ly relevant evidence concerning possible criminal conduct by executive
officials in connection with domestic political affairs. Moreover, the
denaand comes in a case where the existence of widespread criminal
conduct by former executive officials and employees has already been
substantiated by independent evidence and criminal convictions. In
these circunnfltances, at least, there is no executiye privilege to withhold
the crucial evidence from Congress,
The language of the Constitution does not support any
privilege to suppress evidence of executive wrongdoing. Apart from
the privilege against self-incrimination, the only evidentiary privilege
fo\ind therein is granted to legislators by Article I. — There is no mention
*/ As Professor Berger's careful and scholarly study shows, the claim
by counsel for the President that there is a "long-standing privilege of the
executive to refuse Congressional demands, " Misc. No, 47-73, Resp.
Brief in Opp. p. 11, is simply not supported by the historical facts. See
also the Historical Appendix to this memorandum, which reviews portions
of the historical record that are directly relevant to congressional
investigation of executive nrialadministration and wrongdoing.
**/ "fTJor any Speech or Debate in either House, they /Senators and
Representatives7 shall not be questioned in any other Place. " U.S. Const.
Art, I, Sec, 6, cl. 1.
The only reference to secrecy in the Constitution also occurs in
Article I:
"Each House shall keep a Journal of its Proceedings and from time to
time publish the same, excepting such parts as may in their Judgment
require Secrecy . ..." U.S. Const. Art. I., Sec, 5, cl, 3,
714
24
of any executive privilege in the Constitution. Nor can any implied
privilege be erected on the strength of the President's constitutional
duty to "take Care that the Laws be faithfully executed, " for such duty
can hardly justify suppression of evidence of executive la wbr caking.—
Nor can historical practice justify any privilege to
suppress evidence of executive wrongdoing. Whatever the record may be
in other areas, the executive has not heretofore asserted any blanket
privilege to thwart congressional investigations into executive wrongdoing. — '■
Thus, in response to a congressional investigation into the disastrous St,
Clair expedition. President Washington turned over all the pertinent
documents: "not even the ugliest line on the flight of the beaten troops was
***/
eliminated, " And Washington actually welcomed a congressional
inquiry into alleged unlawful conduct by Secretary of the Treasury
Hamilton. ■
In a later congressional inquiry into charges of official
ird sconduct levied against Secretary of State Daniel Webster, former
President Tyler was summoned and deposed under oath by a Select
Committee, former President Adams was also deposed, and the sitting
President, Polk, disgorged all relevant documents. The details of these
and numerous other examples of acknowledgement by the executive of the
*_/ The express privilege accorded Representatives and Senators under
the Speech or Debate Clause has recently received a narrow reading by the
Supreme Court. See United States v. Brewster, 408 U.S. 501 (1972);
Gravel v. United States, 408 U.S. 606 (1972). In Gravel, the Court held
that legislators and their aides must respond to inquiries concerning possi-
ble criminal conduct in which they nnay have engaged in preparing for
legislative activities. Surely the executive, which enjoys no express
immunity in the Constitution, cannot assert a broader privilege than
legislators, who do enjoy such an immunity,
**/ President Jackson, for example, refused to produce docunnents relating
to alleged wrongdoing by a former executive official, but only on the ground
that the congressional investigation was being conducted in camera, thus
depriving the individual in question of an opportunity for public vindication.
See R. Berger, Executive Privilege v. Congressional Inquiry, 12U. C. L. A,
L. Rev. 1043, 1094-95 (1965).
***/ 6 Freeman, Biography of Washington 339 (1954).
****/ See 33 Writings of Washington 95; 3 Annals of Congress 905, 907,
931-2, 934 (1792).
715
25
congressional power of inquiry into official wrongdoing are provided in
the Historical Appendix attached to this Memorandum. This historical
review makes clear that executive privilege to suppress evidence of
criminality cannot be justified by reference to historical practice; in
fact, the historical practice strongly tends to establish the contrary.
As Vice President Calhoun long ago conceded, the "conduct of public
servants is a fair subject of the closest scrutiny "by Congress. 3 Cong.
Deb. 574 (1826).
Considerations of sound policy do not support the privilege
here asserted by the defendant President. We concede an executive
interest in confidentiality to pronrxote frank discussion. But the occasions
on which it would be necessary to breach that confidentiality in order to
secure crucial evidence on the extent of executive criminality would, we
trust, be infrequent. The possibility of occasional inquiry into illegal
executive activity can surely have little, if any, chilling effect on wholly
lawful executive deliberations. And a rule exennpting unlawful executive
activity from disclosure would plainly invite intolerable abuses. For such
a rule would permit "the head of an executive departnnent ... on his own
say-so to cover up all evidence of fraud and corruption . . . . " Committee
for Nuclear Responsibility, Inc. v. Seaborg , 149 U.S. App. D. C. 385,
391, 463 F. 2d 788, 794(1971).
Even in judicial proceedings, where the constitutional interest
of Congress in obtaining needed information is absent, the courts have
refused to accept an executive privilege to withhold information where
official misconduct was involved. One of the earliest cases involving a
claim of executive privilege in the context of charges of criminal wrong-
doing by governnnent officials was United States v. Doheneyand Fall
(Sup. Ct. Dist. Col. 1926), a prosecution arising out of the Teapot Dome
Scandal. The Court rejected a formal claim by the Secretary of the Navy
to suppress testimony concerning conversations between a Navy Captain
716
26
and a defendant regarding defense installations. The Court held that the
testimony was relevant to the crinninal charges, and that the government's
interests in confidentiality could be adequately served by deleting the
identity of a foreign power referred to in the conversation. See
Stenographic Record, 2-3, 2381-2384, 2392 et seq. , reprinted in Morgan
and Maguire, Cases and Materials on Evidence (3d ed. 1951) 405-409.
See also, Rosee v. Chicago Board of Trade, 36 F.R.D. 684, 690 (N. D.
111. 1965) (privilege inapplicable to conspiracy to deprive plaintiff of his
membership on the Board of Trade); Wood v. Breier 54 F.R.D. 7, 12
(E. D. Wise. 1972) ("Even if executive privilege would normally be
applicable, when the basis of a particular suit arises from the alleged
misconduct or perversion of power by a government official, as it is
claimed in the case before me, discovery may well be proper. ")*_/
Moreover, it is clear that comparable evidentiary privileges do
not apply where there is evidence of criminal conduct. The attorney-
client, doctor-patient, and nnarital privileges are venerated by the law,
but none applies where the communication is in furtherance of a criminal or
fraudulent transaction. A. B. Dick Co. v. Marr, 95 F. Supp. 83, 102
(S. D. N. Y. 1950) (Medina, J.) appeal dismissed, 197 F. 2d 498 (2d Cir. ),
cert, denied, 344 U.S. 878 (1952) (attorney-client privilege); Pollock v.
United States, 202 F. 2d 281, 286 (5th Cir.), cert, denied, 345 U.S. 993
(1953) (attorney-client privilege); Hank v. State, 148 Ind. 238, 240, 46 N. E.
127, 134 (1897) (doctor-patient privilege); State v. Grinnell, 116 Iowa 596, 88
N.W. 342 (1901) (doctor-patient privilege); Eraser v. United States, 145 F. 2c
*/ Cases arising under state law and considering analogous executive
privileges reach the same conclusion. Attorney General v. Tufts, 239
Mass. 458, 491-92, 132 N. E. 322, 326 (1921); Metzler v. United States
64 F. 2d 203 (9th Cir. 1933) (privilege arising under state statute ).
717
27
139 (6th Cir. 1944), cert denied sub, nom. Fraaer v. Barton , 325 U.S.
849 (1945) (marital privilege);. Wyatt v. United States, 362 U.S. 525 (I960)
(marital privilege).
Even the petit and grand jurors' privilege clearly the most
significant in the workings of the judicial process nnust yield in a case
investigating criminal wrongdoing by a juror. Clark v. United States, 289
U.S. 1 (1933): See also United States v. Proctor fc Gamble Co. , 356 U.S.
667, 684 (1958); United States v. Proctor Sc Gamble Co. , 25ER.D. 485
(D.N.J. I960). Thus, although the confidentiality of judicial deliberations
is central to the judicial process, Fayerweather v. Ritch. 195 U. S. 276,
306-07 (1904), it must yield when there is evidence of criminal nnisconduct.
Mr. Justice Cardozo, speaking for the Supreme Court in Clark, put it thus:
"The privilege takes as its postulate a
genuine relation, honestly created and
honestly maintained. If that condition
is not satisfied, if the relation is merely
a shan-i and pretense, the juror may not
invoke a relation dishonestly assumed as
a cover and cloak for the concealment
of the truth. " 289 U. S. at 14.
The principle enunciated by Justice Cardozo in Clark is, we submit,
directly controlling here. Executive officials, like jurors, have innportant
public responsibilities. But, like jurors, they may not use the cloak of
their official position to suppress evidence of wrongdoing. As Mr. Chief
Justice Burger asserted on behalf of the Suprenne Court in United States
v. Brewster, 408 U.S. 501, 521 (1972), "the laws of this country allow no
place or employment as a sanctuary for crime . . . "
*/ See also 8 Wigmore, Evidence sec. 2372, at 757-58 (McNaughton rev. ed,
1962) (on judge's privilege); Unit-d States v. Caldwell, 25 Fed. Cas. 238
(No. 14708) (C. C. D. Pa. 1795) (subpenaes to judges upheld).
**/ The cited passage is a quotation from Lord Mansfield and was directed
at an asserted congressional privilege,, but the principle is equally
applicable to the executive. )«articularly where the executive, unlike the
Congress, enjoys no grant of privilege in the Constitution.
718
-28-
rv. The Selective Disclosures Already Authorized by the President
Have Destroyed the Foundations of Any Executive Privilege in
This Case.
It has been urged by the attorneys for the President that the
enforcement of subpenas directed to presidential conversations would cause
"severe and irreparable" damage to the "institution of the Presidency, " on
the supposition that "once the totality of the confidential nature of the
recordings is destroyed, no person could ever be assured that his own
frank and candid conunents to the President would not eventually be made
pubUc. "*/
As we have already pointed out, p. 23, supra, this claim is
greatly overstated, and totally ignores the important public interest in
detecting and preventing official misconduct. But even under the view of the
defendant President himself there is no assurance of total confidentiality;
indeed the President hinnself has engaged in several serious breaches of that
confidentiality. The very fact that the defendant President has secretly
taped the conversations without notifying the participants is a breach of the
confidence that the defendant President purports to protect. He has, in
addition, permitted his aides to testify concerning these conversations whose
confidentiality he now claims to be of critical importance. He has also per-
mitted at least one private citizen, H. R. Haldeman, to review tapes of con-
versations to which he was not a party in preparation for Mr. Haldennan's
Select Conamittee testimony, (See S. Ex. 113, attached to Statement)**/
*/ Misc. No. 47-73, Resp. Brief in Opp. 2, 18. See also the defendant
President's letter of July 6, 1973, to Senator Ervin, appended as Exhibit F
to the Complaint in the instant case.
**/ The conclusion that the defendant knew, at the time he requested
Haldeman to review the tapes, that Haldeman would testify as to their
contents is inescapable. (S. Tr. 6091)
719
29
And the defendant President has given out his own version of so much
of those conversations as he has deemed in his own interest. For the
defendant President now to assert a claim of privilege on the basis of
a supposed need for inviolate confidentiality is, we respectfully submit,
totally unpersuasive.
In particular, the defendant President's decision not to invoke
executive privilege with respect to testimony by aides regarding their
conversations with the President_*/ is fatal to his belated effort to
invoke privilege with respect to tape recordings of those same conversa-
tions. For if such conversations are not privileged against a testimonial
description of their contents, how in logic can privilege be asserted with
respect to the "description" contained in the tapes? In the legal sense,
the tapes have become simply the best and most reliable evidence of non-
privileged oral conversations. The Supreme Court has consistently ruled
that, where it is otherwise proper to testify about oral conversations, taped
recordings of those conversations are properly admissible as probative
and corrobative of the truth concerning the testimony. Lopez v. United
States, 373 U.S. 427, 437-440 (1963); Osborn v. United States, 385 U.S.
323, 326-330 (1966); United States v. White, 401 U.S. 745 (1971). To
paraphrase language from Lopez , 373 U.S. at 439,
"Stripped to its essentials, /the defendant
President'^^/ argument announts to saying that he has
a constitutional right to rely on possible flaws in the
agent's memory, or to challenge the agent's credi-
bility without being beset by corrobating evidence that
is not susceptible of impeachment. For no other
argument can justify excluding an accurate version of
a conversation that the agent could testify to from
memory. "
*_l See Exhibit J to the Complaint at p. 8; Exhibit K to the Complaint.
720
.30
We believe these decisions of the Supreme Court compel the conclusion
that no privilege may be asserted by the defendant President with respect
to the recordings of conversations where he has disclaimed any privilege
with respect to testimony concerning those same conversations.
Moreover, it is repugnant to basic principles of fairness to
allow a person, whomever he may be, to pick and choose among papers,
or recordings, or even memory and offer only those portions that he
considers most appropriate. As Mr. Chief Justice Vinson stated the
basic principle in the context of testimony: "To uphold a claim of
privilege in this case would open the way to distortion of facts by permitting
a -witness to select any stopping place in the testimony. " Rogers v. United
States, 340 U.S. 367, 371 (1950) (privilege against self-incrimination).
But our law has not allowed such unfettered discretion; to the
contrary, one who, by selective disclosure, breaches a
confidence protected by a privilege is held to have forfeited that
privilege. See generally, Tigar, Foreward; Waiver of Constitutional
Rights; Disquiet in the Citadel. 84 Harv. L. Rev. 1, 9-10 (1970).-'
The fundamental basis of this rule has been long accepted
in our legal tradition. "£Tjh.c moment confidence ceases, privilege
ceases. " Parkhurst v. Lawten, 36 Eng. Rep. 589, 596 (Ch. 1819). It
has been applied in cases dealing with the various traditional privileges.
E. g. , Connecticut Mutual Life Ins. v. Shields, 18 F. R. D. 448, 451 (S. D. N. 1
1955)(attorney-client privilege); Eraser v. United States, 145 F. 2d 139,144
*/ "Voluntary disclosure of any such fact /which may in any degree form a
link in a chain of evidence against the witnessj evinces, the argument runs,
an intention not to rely upon the privilege .... The same general rule is
followed with respect to all testimonial privileges, constitutionally-based or
not . . . . " 84 Harv. L, Rev. at 9-10 (emphasis supplied).
721
31
(6th Cir. 1944), cert, denied sul> nona. Fraser v. Barton. 324 U.S. 849
(1945) (marital privUege); Pereira v. United States. 347 U.S. 1, 6-7 (1954)
(marital privilege). The same rule of waiver has been held to apply where
the government, or one of its officials, claims privilege. Fireman's Fund
Indemnity Co. v. United States, 103 F. Supp. 915 (N. D. Fla.1952), aff'd^
211 F. 2d 273 (5th Cir.), cert denied. 348 U.S. 855 (1954). Cf. Fleming v.
Bernardi. 4 F.R.D. 270,272 (N. D. Ohio 1941); Mitchell v. Bass. 252 F. 2d
513 (8th Cir. 1958).
United States v. Reynolds, 345 U.S. 1 (1953), relied on
heavily by defendant President in Misc. No. 47-73 (Reap, Brief in Opp.
pp. 20-21) is not supportive of his position, and in fact underscores the
need for complete disclosure in the instant case. In Reynolds, a private
tort action against the government, the government refused to produce
its official investigation report on the crash of a military aircraft while on
a confidential mission and also refused to produce related statements given
by surviving crew members. However, the government offered to produce
for examination the crew members, and to permit them to refresh their
recollections from their previous statements and to testify as to all matters
not classified. 345 U.S. at 3-5. The Court refused to order the production
of more; weighing plaintiffs' "dubious showing of necessity" for the
additional material including their refusal to pursue the "available alterna-
tive" of interviewing the crew members, 'Swhich might have given Jthem?
the evidence to make out their case without forcing a showdown on the claim
of privilege" as against the strong showing that the classified material had
to do with highly secret military electronic equipment, it found for the
government. Moreover, the Court noted, "there is nothing to suggest that
34-966 O - 74 - pt. 1 - 47
722
32
the electronic equipment, in this case, had any causal connection with
the accident. " The Court therupon concluded:
"Therefore, it should be possible for respondents
to adduce the essential facts as to causation with-
out resort to mateirial touching upon nnilitary
secrets. Respondents were given a reasonable
opportunity to do just that, when petitioner
formally offered to make the surviving crew
nnembers available for examination. We think
that offer should have been accepted. " 345 U.S. at 11.
Reynolds is factually quite remote from the present case.
Here, it is true, the defendajit President has permitted various persons to
testify before the Select Committee. But their testinnony, rather than
clearing up the essential facts as to the involvement in criminal conduct
of the various people concerned, has been sharply contradictory and less
*/
than the best evidence at hand," Moreover, the defendant himself has
made repeated statements and summations of his version of the events
■which in turn contradict some of the testimony before the Committee.
Indeed, the defendant President, while summarizing his conclusions based
on his review of some of the material in his possession, adnnits that others,
upon a review of that same material, could reach different conclusions.
Letter to Senator Ervin of July 23, 1973 (exhibit G attached to the Complaint)
Moreover, this is not a situation, as in Reynolds, where the material
withheld arguably has no relevant connection with the inquiry. It is, in
fact, openly conceded by all persons that the tapes in the defendant
President's possession are highly relevant. They could obviously be quite
signficant in clarifying the contradictions regarding the involvement of the
defendant President, or of his closest associates, in criminal wrongdoing.
*/ In fact, the President has persisted in withholding the only evidence
recordings and documents --- whose veracity, unlike testimony, is not
readily subject to challenge.
723
_ 33
The settled principles of waiver of privilege, largely-
developed in court suits, should apply with special force where information
is sought by Congress in pursuit of a legitimate legislative purpose. Here
Congress must deal with a crisis of great importance to our system of
government. Perhaps its amelioration and the prevention of its reoccur-
rence will require far reaching legislation to regulate political campaign
practices and executive involvement in such campaigns. If Congress were
kept in ignorance of what has happened and what might happen again in our
system as it is now constituted. Congress would be seriously hampered in
discharging its constitutional duties. To accept, in the face of conflicting
testimony, a single version of what is contained in the papers and tapes - —
particularly the version of one who, evidence suggests, may be implicated
in the very conspiracy that is the subject of the Committee's inquiry ---
could well be worse than acting in ignorance. In these circumstances, no
individual should be permitted to toy with Congress and its decisional
processes. This, it is respectfully submitted, is the classic situation for
the application of a waiver doctrine to whatever prerogjaJtive of silence
the defendant President might otherwise assert.
724
34
CONCLUSION
We have shown that the evidence sought by the Committee's
subpenas is of vital importance to the discharge of Congress' constitutional
responsibilities. We have also shown that the defendant President has no
right or privilege to suppress and withhold from Congress evidence bearing
directly on his possible criminal conduct or that of others in executive
office. Particularly where the President has authorized testimonial dis-
closure of matters under investigation, he cannot lawfully obstruct Congress'
effort to obtain all relevant evidence and determine the extent of involve-
ment in Watergate by the President and other high officials. JV
But the issues presented here transcend the immediate ques-
tions of the extent of criminal conduct by various executive officials in this
matter, important as those questions are. This case also raises the far
more fundamental issue of the executive's accountability to the Rule of Law.
*/ In these circumstances, the obser\ation of Wigmore is highly pertinent:
"The public (in the woids of Lord Hardwicke)
has a right to every man's evidence. Is there
any reason why this right should suffer an ex-
ception when the desired knowledge is in the
possession of a person occupying at the moment
the office of chief executi've of a state?
"There is no reason at all. His temporary
duties as an official cannot overcome his
permanent and fundamental duty as a citi-
zen and as a debtor to justice. "
8 Wigmore, Evidence i 2370 (c) { McNaughton
rev. ed. 1961) (emphasis in original). See
also United States v. Bryan 339 U.S. 323,
331 (1950); Branzburg v. Hayes 408 U.S.
665, 688 n. 26 (1972).
725
-35
Involved here is the question whether the President of the
United States has suchprerogative, right, and privilege as to be answerable
to no one except in an impeachment proceeding. The defendant President's
position, bottomed on a claim of naked executive privilege, is that he, and
he alone, can decide whether to release, to whom, and how much. It is
his position that he can remain silent entirely or may cull through the
evidence and release only those matters favorable to his predetermined
position, retaining that which does not lend support.
It is also his position that there is no force that can reach him
as long as he is President--no court nor House of Congress. As long as he
retains his office, he contends, he is immune from any force of law save as
his own conscience or interest shall otherwise dictate. He asserts that it
is only by an impeachment and a conviction thereon that he is answerable,
even for his own crimes.
It is respectfully subnnitted that such a. claim strikes at the
very heart of our systenn of government. For once the President becomes
so immixne by privilege that he cannot be reached by force of law short of
impeachment, he will become much as the monarch from whom our form
of government constituted a rewilsion.
Moreover, if the position of defendant President were accepted
imnnunity from the Rule of Law and the ordinary processes of government
would not be linnited to the President himself, but could be extended, at
his sole discretion and pleasure, to every one of the two and one-half
million officers or employees of the executive branch. This would represent
an expanse of executive absolutism that e'sen the Bourbons might have
envied.
726
.36
Such claims of executive absolutism were long ago rejected
by the Framiers and those that followed them. Merely by way of illustra-
tion is an early decision by one of the great Justices of the Supreme Court
in the formative years of the nation. Gilchrest v. Collector, 10 Fed. Cas.
355 (Case No. 5, 420) (C. C. D. S. C. 1808) (Johnson J. ) The incident
involved was trivial compared to Watergate; a collector of customs had
detained a ship in violation of statute. But the same great principle
presented here was also involved there, for the executive sought to excuse
the collector's conduct on the ground that it had been commanded by the
President, and that the President in turn was not subject to the courts but
only to impeachment. Justice Johnson flatly rejected the claim that "the
security of the citizen lies in /the President'^/ liability to impeachnnent. "
10 Fed. Cas. at 365. For to accept such an argument, observed the Jus-
tice, would in practical effect mean:
"/_T_Aiat the whole executive department in_all its
ramifications, civil, military, and naval, /wouH/
be left absolutely at large, in their conduct to
individuals .... But such is not the genius of
our constitution. The law assigns everyone his
duty and his rights; and for enforcing the one and
maintaining the other, courts of justice are
instituted. " 10 Fed. Cas. at 365.
* * *
For the reasons stated above, the Plaintiffs' Motion For
Summary Judgment should be granted. ' ^
^spectfully submittad^
Samuel Dash
Sherman Cohn Chief Counsel
Eugene Gressman
Jerome A. Barron Fred D. Thompson
Washington, D. C. Minority Counsel
of Counsel
Rufus Edminsten
Arthur S. Miller Deputy Counsel
Chief Consulteint to
the Select Committee
of Counsel
727
,37
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
United States Senate
Washington, D. C. 20510
Telephone Number: 225-0531
Attorneys for Plaintiffs
728
HISTORICAL APPENDIX
Thla Appendix will not retrace the careful study by Professor
Berger, Executive Privilege v. Congressional Inquiry, 12 U.C.L.A. L.
Bev. 1044, 1288 (1965), which fully refutes the notion that historical
practice supports a claim of absolute executive privilege to withhold
Information from the Congress. Rather It will selectively consider
those historical examples Involving charges of criminal wrongdoing and
corruption in the Executive Branch. When historical analysis is limited
to such examples it is found that the Executive in fact follows a
practice of disclosure: Presidents and their closest aides have
responded to subpenas; Presidents and former Presidents have submitted
to depositions; they have appeared under oath before congressional
committees to answer charges of wrongdoing and corruption; they have
disclosed great volumes of documentary evidence. While the record
is not uniformly consistent. It tends strongly to show that previous
Presidents and other high executive officials have generally acknow-
ledged a legal duty to respond with pertinent evidence when corruption,
crime or other wrongdoing is indicated.
THE ENGLISH TRADITION
The duty to supply evidence has long been recognized in England,
from where our common low system derives. As Jeremy Bentham observed:
"Are men of the first rank and consideration are men
high In office — men whose time is not less valuable to
the public than themselves are such men to be forced
to quit their business, their functions, and what is more
than all, their pleasure, at the beck of every petty cause?
Tes, as far as it is necessary, they and everybody.. . . 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 halfpennyworth of apples and the chimney-sweeper
or the barrow-woman were to think proper to call upon them
for their evidence, could they refuse it? No, most certainly."
i The Works of Jeremy Bentham 320 - 321 (J. Bowrlng ed. 1843).
729
-2-
The Supreme Court has recently quoted this passage with approval
In Branzburg v. Hayes . 408 U.S. 665, 688 n.26 (1972).
At conmon low, only the Monarch of England, and no- oDher person,
was given an immunity from testifying, 8 Wlgmore ■ 2371, at 749. V
Thus , when evidence was needed from the Prince of Wales who after-
wards became King Edward VII the Prince was sunmoned, and he testi-
fied about possible cheating at the card table by the plaintiff. Even
a commoner from the Jury box was allowed to ask a question of the
Heir-Apparent. **/
THE INTENT OF THE FRAMERS
The available evidence of the period surrounding the adoption
of the Constitution in 1789 indicates that there was no intent by
the Framers to clothe the President with the privileges of the English
King. James Wllion rejected "the Perogatlves of the British Monarch
as a proper guide in defining the Executive powers . ..." 1 Farrand,
Records of the Federal Convention of 1787, at 65-66 (1911). As Charles
Pickney affirmed in a Senate ipeech of March 5, 1800:
"/~The frameris/ well kamu how oppressively the p«wer
of undefined privileges had been exercised in Great
Britain, and were determined no such authority should
ever be exercised here .
"No privilege of this kind was intended for your
Executive, nor any except that which I have mentioned
for your Legislature." 3 Farrand, Records of the
Federal Convention of 1787, at 384-85 (1911).
See also 4 Elliot's Debates (2d ctd. 1836), at 108 - 09 (remarks
of Iredell at the North Carolina Ratification Convention); 2 Elliot's
^ Many argued that even the King was not above the law. See, e.g.,
S. D'Ewes, Journal of ell the Parliaments during the Keign of Queen
Elizabeth 238 (1682) (Speech of Peter Wentworth in 1575 > "...
The King ought not to be under man, but under God and under the
Law, because the Law maketh him a King . . . . "
**/ 8 Wlgmore, B 2371, at 749 n. 2; See Notable British Trial Series,
The Baccarat Case 3, 75 (Shore ed. 1932); Ablnger, Forty years
at the Bar (1930), at 84.
730
-3-
Debates (2d ed. 1836), at 480 (remarks of Janes Wilson).
This nation's Presidents, from the very first, have until now
upheld the connon law tradition that even a President Is not above
the lav.
PRESIDEin' GEORGE WASHINGTON
The first example of a congressional Inquiry Into possible
executive malfeasance occuraBlln 1792, when the House began an Inquiry
Into the failure of the St. Clair Expedition. The House Coomitcee was
to inquire into "the causes of the failure of the late expedition , , . .
and ... to call for such personSk papers ... as may be necessary
to assist their inquiries." 3 Annals of Cong. 493 (1792), cited in .
Berger, supra, at 1079 *. 188. Though Washington at a cabinet meeting
decided that he had a discretion not to produce the evidence ealled for
by the House, this unofficial opinion was never comaunicated to Congress.
Berger, supra at 1080. More importantly, whatever his private assertion,
all the St. Clair documents were in fact turned over to the House; "not
even the ugliest line on the flight of the beaten troops was eliminated."
6 Freeman, Biography of Washington 339 (1954]^ cited in Berger, supra
at 1080 n. 195. The SecretarlM of the-Treasury and War appeared in
person to make explanation. 3 Annals of Cong. 1106 (1792). V One
contemporary congressional critic of the investigation (W. Smith)
acknowledged that "l_ 1/ n any case i^ere it shall appear that the
Supreme Executive has not done his duty, he should be fully in favor of
an Inquiry." 3 Annals of Cong. 491 (1792), cited in Berger, supra at 1080
n. 195.
57 Washington Instructed his Secretary of War on April 4, 1792:
"Tou will lay before the House of Representatives
such papers from your Department as are requested
by the enclosed Resolution." 32 Thp- Writings of
Washington 15(1939). See Berger, supra at 1080 -
81 «B. 199, 197, and 199.
731
About the same time, Washlngton<-welcomed a rumored Investigation
of possible wrongdoing by his Secretary of the Treasury, Alexander
Hamilton. See 33 The Writings of Washington 95 (1940), Letter to
Pendleton, September 23, 1973, cited In Berger, supra at 1081 n. 200.
James Madison, an advocate of the Resolutions charging Hamilton with
grave derelictions, declared It to be a duty of the Secretary, "In
complying with the orders of the House, to Inform the House how the
law had been executed ... to explain his own conduct." Lee, an
opponent of the Resolutions , basically agreed. 3 Annals of Cong. 934,
931 - 32 (1792), cited In Berger, supra at 1081 n. 201. The power to
Investigate official conduct was apparently never cpiestloned. Eventually
Hamilton was exonerated. Berger supra, at 1081 n. 201.
732
-5-
PRESIDENT THOMAS JEFFERSON
In the now famous case of United States v. Burr, 25 Fed.
Cas. 30 (HOv 14692d)(C.C. Va 1807) Chief Justice Marshall, on
circuit, held that the court had "the right to Issue a subpcna -
against the President." Id. at 34-36. Burr's lawyers had sought
to obtain evidence In the hands of the President relevant to Burr's
criminal trial. Jefferson objected, but It Is clear that he attempted
fully to comply and In fact did comply with the subpena. • Berger,
eupra. at 1107 & n. 333.
PRESIDENT JAMES MONROE
On January 3, 1818, President James Monroe became the
second President to be served a subpena while In office. Summoned as
a witness In behalf of the defendant In the court martial of Dr.
William Barton, President Monroe was requested to appear "at the Navy
Yard in the City of Philadelphia on Wednesday the 14th day of January
1818 at eleven o'clock In the forenoon."—' In November of 1817
Dr. Barton had been granted two Interviews with the President to press
his claim for a position at the Naval hospital at Philadelphia. Dr.
Barton received his appointment and Dr. Thomas Harris (who had bean
replaced as a result of Barton's appointment) then brought charges of
"Intrigue and misconduct" against Barton. Barton's meetings with the
President were cited as contributing factors. The Judge Advocate
then Issued the summons to the President.**/ At the President's
direction. Secretary of State John Qulncy Adams sought the opinion
of i^ttomey General Wirt as to the proper course the President should
pursue. A true copy of that unpublished opinion In Its entirey
V A copy of the summons submitted to President Monroe Is In Attorney
General's Papers: letters received from State Department, Record
Group 60, National Archives Building.
**/ Richard Rush to the President l_ Monroe_/ Nov. 6, 1817, Records
of the Office of Judge Advocate General (Navy) , Record Group 125
(Records of General Courts Martlals and Courts of^ Inquiry, Microcopy
M-272 , case 2822, National Archives Building. / Hereinafter cited
as Navy Records_/ . p. x. pieadwell, William Paul Crliiin Barton
(1786-1856), surgeon. United States Navy — a pioneer in American
naval medicine, 46 The Military Surgeon (March 1920) at 260-62.
733
-6-
18 attached to this Historical Appendix. The opinion by Wirt Is
especially significant In that It was Issued In the early days of
our Republic: see ^tuart y. \*i.fA. 5 U.S. (1 Cr.) 299. 309 (1803).
The opinion of the Attorney General states. Inter alia:
"A subpoena ad testificandum may I think be properly
awarded to the President of the U. S. My reasons
for this opinion are stated by the Chief Justice of the
U. S. In the case of Aaron Burr — Burr's trial vol.
1 page 180 A seq. . . .
* * * *
"The return, however, which I would advise is this:
If the process has been executed on the President In
the usual form, by an officer or an Individual, let the
person serving It be instructed to make an endorsement
like this - 'January 1818, executed on the President
of the U. S. who stated that his official duties would
not admit of his absence from the seat of government, but
that he would hold himself ready, at all times, to state,
in the form of a deposition, , and facts, relevant to
the prosecution, which were within his knowledge, and ^
which might be called for by the court or the party. '"_/
President Monroe on the back of the summons stated that his official
duties would preclude his appearance at «tM court martial, but he woul*
"be ready a^ willing to communicate, in the «orm of a deposition any
information 1 may possess, relating to the subject matter in question. "j^/
Subsequently, President Monroe submitted answers to the interrogatories
forwarded to him by the court.***/
PRESIDENTS JOHN TYmiiaND JOHH QUINCY ADAMS
On April 9, 1846, Daniel Webster was accused by Representative
Ingersoll In the House of Improperly making disbursements from the
Presidential Secret Service Fund—a fund appropriated by the Congress
to allow the President to purchase the services of spies and conspir-
ators, and for use in clandestine operations in the course of foreign
relations. Cong. Globe, April 9, 1846, at 636, 638. On April 20. 1846,
President Polk responded by providing the House with documents and a
list of the amounts of the various expenditures from the Secret Ser-
vice Fund, but refused to produce documentation on the purposes for
which the funds were used on the ground that the statute creating the
*7 William Wirt to John Qulncy Adams, January 13, 1818. Navy Records.
**/ President James Monroe to George M. Dallas (on the back of summons) ,
January 21, 1818, Navy Records.
***/ President James Monroe to George M. Dallas, February 14, 1818, Navy
records. Monroe's answers arrived only after the court dismissed
the case. William Paul Crlllion Barton to Secretary of the Navy,
Samuel L. Southard, October 4, 1823, Navy Records.
734
-7-
fund specifically made such documentation Inmune from disclosure.
Cong. Globe 698 (Apr. 20, 18^6). Moreover, all of the transactions
occurred prior to Polk's Incumbency, and he questioned his authority
to disclose materials deemed confidential by his predecessors. Id.
President Polk's unwillingness to respond completely to
the House requests for information led to the creation of two distinct
select committees to investigate the matter. See The Secret Fund
]_ Discussion of charges of misuse of State Department funds by
Daniel Web8ter_7, Cong. Globe, April 27, 1846, at 733-35. Polk's
concern about revealing the confidences of a predecessor President
was rendered moot because former President Tyler was subpenaed and
testified before both select committees. See H. R. Rep. No. 684, 29th
Cong., Ist Sess.. (1846) at 8-11; H.R. Rep. No. 686, 29th Cong., 1st
Sess., (1846) at 22-23. Former President John Quincy Adams filed a
deposition with one of the select Committees. H.R. Rep. 686, at 28.
Both former Presidents gave evidence, under oath, about their use of 'i
the secret fund while President and testified about conversation with
their aides. With the conclusion of the testimony the House had
secured the information it deemed relevant and the select committee
investigating Daniel Webster reported it was satisfied that he was
Innocent of any wrongdoing. See 2 Geo. Curtis, Life of Daniel Webster
H3 ^1870). See also 4 Richardson, Messages and Papers of the Presidents
433 '(Message of President Polk to the House).
PRESIDENT ABRAHAM LINCOLN
During the civil war. President Lincoln appeared before
the House Judiciary Committee to deny under oath that his wife was a
co-conspirator with one "Chevalier" iienry Wycoff in a premature release
("leak") of the President's forthcoming message to Congress which
appeared in the New York Herald in December, 1861. The New York
Tribune, for example, reported on February 14, 1862:
"President Lincoln today l_ the 13th_/ voluntarily
appeared before the House Judiciary Committee and
gave testimony in the matter of the premature pub-
lication in the Herald of a portion of his last
annual message . . . ." New York Tribune, Feb. 14,
1862, at 1.
At least four other contemporary newspapers stated that the President
735
-8-
appeared before the Committee. New York Times, Feb. 14, 1862, at 8;
Philadelphia Inqtilner. Feb. 14, 1862, at 1; New York Herald, Feb. 14,
1862, at 1; Boston Morning Journal, Feb. 18, 1862, at 4.
PFKSIDENT ULYSSES S. GRANT
In connection vlth the so-called whiskey fraud cases
during Grant's tenure in the White House, President Grant submitted
to a criminal deposition to give evidence concerning his confidential
secretary. General Orvllle E. Babcock, who was accused of participation
In the frauds. See John A. Carpenter, Ulysses S. Grant 152 (1970);
Grant testified about conversations with Babcock, his confidential
secretary. New York Times, Feb. 13, 1876, at 1; Feb 14, 1876, at 1.
Moreover, Grant was once arrested while President for fast driving In
a horse and buggy. The arresting policeman was profuse In his
apologies when he recognized the President but the President said:
"Officer, do your duty." Geo. Stlmpson, Nuggets of Knowledge, at 54.
PRESIDENT THEODORE ROOSEVELT
President Theodore Roosevelt, on two separate occasions
after leaving the White Hous^ voluntarily testified before Congressional
Investigating committees regarding events during his Presidency. In
1911, he appeared before a special House Committee to testify about the
circumstances Involved In the questionable acquisition In 1907 of the
Tennessee Coal & Iron Company by U.S. Steel. Hotise Special Committee
on the Investigation of the United States Steel Corporation, United
States Steel Corporation Hearings, 62d Cong., 1st Sess. 1369 et seq-
(1911).
In 1912 Roosevelt appeared before a Senate Subcommittee
Investigating the propriety of certain corporate contributions to
Roosevelt's 1904 presidential campaign. Senate Committee on Privi-
leges and Elections, Campaign Contributions, Hearings, 62d Cong., 1st
Sess., on S. Res. 79 and S. Res. 386, Oct. 16, 1912, at 177-96; 469-
527. See also E. Morlson, 7 The Letters of Theodore Roosevelt 602-
25 (1954).
736
-9-
PRESIDENT WARREN G. HARDING
In April 1922 the United States Senate adopted two
resolutions which ultimately led to the disclosure of the Infamous
Teapot Dome scandal. One resolution directed the Secretaries of the
Navy and Interior Departments to "inform the Senate, if not
: Incompatible with the public interest," about "all proposed operating
agreements" upon the Teapot Dome reserve .1/ The second resolution
authorized the Committee on Public Lands and Surveys "to investigate
the entire subject of leases upon naval oil reserves',' and also asked
that the Secretary of the Interior be directed to send to the Senate
all the facts about the leasing of Naval Oil Reserves to private
citizens and corporations . **/
In response to the latter resolution. Secretary of the
Interior Albert Fall forwarded a veritable moxintain of materials to
the Senate Committee on Public Lands and Surveys. ***/ There appeared
to be no withholding of Information from Congress by the executive
branch.
In the concluding remarks of his comprehensive report to the
President on the Naval Oil Reserves, Secretary Fall states that it is
his "frank desire that those entitled to know, and the public generally,
who are, of course so entitled, may have an explanation frankly and
freely and fully given of the acts, policies, and motives of at least
one, and speaking for the Secretary of the Navy, of two members of
the President's official family.****/ In apparent concurrence. Presi-
dent Harding forwarded Secretary Fall's report to the Senate under his
signature with the following observation:
V See 62 Cong. Rtic. 5567-5568 (April 15, 1922).
**/ See 62 Cong. Rec. 5792 (April 21, 1922), 6096-6097 (April 22, 1922).
***/ See U. S. Congress, Senate Committee on Public Lands and Surveys.
Leases upon Naval dil Reserves. Hearings, 67 Cong., 2d Sess.
3142-3143 (1924).
****/ Message from the President, etc., S. Doc. No. 210, 67th Cong., 2d
Sess. 16-17 (1922).
-10-
737
I am sure I am correct in construing the Impelling purpose
of the Secretary of the Interior in making to me this report.
It is not to be construed as a defense of either specific
acts or the general policies followed in dealing with the
problems incident to the handling of the naval reserves, but
is designed to afford that explanation to which the Senate
is entitled, and which will prove helpful to the country
generally in appraising the administration of these matters
of great public concern. I think it is only fair to say
in this connection that the policy which has been adopted
by the Secretary of the Navy and the Secretary of the
Interior In dealing with these matters was submitted to
me prior to the adoption thereof, and the policy decided
upon and the subsequent acts have at all times had my
entire approval.^/
PRESIDENT BWIGHT D. EISENHOWER
During the congressional investigation of the Dixon-Yates
affair, the Senate sought to obtain a copy of a controversial memoran-
dum by Adophe Wensell. Power Policy: Dixon-Yates Contract, Hearing f
on S. Res. 61, Before the Subcommittee on Antitrust and Monopoly of
the Senate Committee on the Judiciary, 84th Cong., lat Sess. (1955)
After objections by the President, the Wensell memoran-
dum was formally presented to the Subcommittee during the course of
Wensell' s testimony before that body. Hearings at 624. As it developed
the memorandum was indeed relevant to the contracting procedure being
investigated by the Senate. See United Saafees v. Mississippi Valley
Generating Co., 364 U. S. 520, 525-47 (1961) holding that Wensell,
by consulting for the Bureau of the Budget while still remaining employed
by First Boston Corp., had violated 18 U.S.C. § 434 (prohibition of
conflict of Interest) .
In connection with another Investigation of possible
corruption In the executive branch. President Elsenhower's closest aide,
Sherman Adams, testified before a subcommittee of the House Committee
on Interstate and Forefcgh Commerce when that subcommittee uncovered
evidence that Adams had accepted certain gifts from one Bernard Gold-
fine, including payment of hotel bills. Adams requested an opportunity
to set the record straight, and in his testimony he discussed appropriate
conversations with Executive officials. Hearing on Investigation of
Regulatory Commissions and Agencies, Before a Subcommittee of the House
Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess.,
3484-89-, 3591-93; 3712-27. Adams subsequently resigned amid charges
*/ Id. at p. Ill
34-966 O - 74 - pt. 1 - 48
738
-11-
of political corroptlon and favoritism.
739
-12-
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
Defendant
Civil Action
No. 1593-73
AFFIDAVIT OF STEPHEN W. STATHIS
I, Stephen W. Stathis, being duly sworn, deposes and says:
1. I am an analyst in American History and American
National Government, in the Government and General Research Division
of Congressional Research Service, Library of Congress.
2. The attached document is a true copy of the Opinion
of Attorney General Wirt, dated January 13, 1818.
3. The original handwritten manuscript of the Opinion
may be found in the Records of the Office of Judge Advocate General
(Navy), Record Group 125, National Archives Building.
StephekW. stathis
Subscribed and sworn to before me,
this ^^:tj<. day of August, 1973.
I Cth^
Notary Public, D. C.
My Commission Expires
740
-ly-
OPINION OF ATTORNEY GENERAL WILLIAM WIRT,
January 13, 1818
Is the President bound to attend a summons as a
witness to a courts martial? What return should be
made on such summons ?
Washington, Jan. 13th 1818
Sir.
I reed this nnorning your communication of
yesterday's date enclosing a sumnnons from the judge
advocate of a naval court martial to be held at
Phila. , tomorrow for the trial of Doct. Barton,
addressed to the President of the U.S. and desiring
his attendance as a witness at that court. The summons,
you inform me is submitted for my opinion, that a
return may be made such as is proper in this case.
A subpoena ad testificandum may I think be
properly awarded to the President of the U.S. My
reasons for this opinion are stated by the Chief Justice
of the U.S. in the case of Aaron Burr--Burr's trial
vol. 1. page 180 & seq. But if the presence of
the chief magistrate be required at the seat of
governnnent by his official duties, I think those
duties paramount to any claim which an individual
can have upon him, and that his personal attendance
on the court from which the summons proceeds ought
to be, and nnust, of necessity, be dispensed with:
my reasons for the latter opinion are stated by
Mr. Jefferson, in a letter to the District
attorney of Virginia, in the case before nnentioned;
Burr's trial 1. vol. page Z55. As this a question
of great delicacy and importance and one rather
of constitutional than municipal law, I send the
741
-14-
book itself, to which 1 have referred, for your perusal,
and that of the President, which I earnestly invite
to the subject that the step which may be taken in
the case, may not be taken on my opinion only, I
will add that in the trial of Smith h Ogden in
New York, a similar summons issued for the head of
departments; the answer of Mr. Madison and the other
heads of departments to that summons, will be found
in page six of the latter trial, which is also sent.
In this case a motion was made for an attachment
against the executive officers and the court was
divided on the question of granting it. In
Burr's case the opinion of the court was never called
for on the question of attachment: so that the opinion
of the federal court, so far as I am informed
has never been expressed on their power to compel the
attendance of the President or the officers of the
executive departments, to give evidence. The power
of compelling the attendance of the President
as a witness being therefore, over the question
one, as before rennarked, wholly dependent, for its
solution, on a sound construction of the constitution,
and a question, withal, which nnay, by possibility,
involve the executive in a collision with the judiciary,
I am sure I shall stand excused for repeating the
request that you. Sir, as well as the President, will
yourselves consider the question, without resting on
my opinion in a case which can scarcely be considered
742
-15-
as exclusively within the province of the lawyer.
The return, however, which I would advise is
this: if the process has been executed on the President
in the usual form, by an officer or an individual, let the
person serving it be instructed to make an endorsennent
like this -- "January 1818, executed on the President of
the U. S. who stated that his official duties would not
admit of his absence from the seat of government, but
that he would hold himself ready, at all times,
to state, in the form of a deposition, and facts, relevant
to the prosecution, which were within his knowledge, and
which might be called for by the court or the party. "
I would farther recommend, ere abun4anti cautela, that
this return should be accompanied by a respectful letter
from the President to the Judge Advocate, taking the grounds
presented by Mr. Jefferson, in the letter to which I have
already referred you.-- If the process has not been served on
the President in the usual form, but sent to him as a letter,
I would recommend that he should endorse on it an admission
of its service annexing to that admission a similar statement
with that which I have before recommended in the case of it having
been served; and enclosing the process, thus endorsed, in such
a letter as I have advised.
It is clearly inferable from the argument of
the Chief Justice, that he would require the excuse for non-
attendance to be on oath, but 1 can scarely think this necessary
when the excuse is written on the face of the Constitution
and founded on the fact that Mr, Monroe is the President
743
-16-
of the U.S. and that Congress is now holding one of its
regular session^, during which his presence is so peculiarly
necessary at the seat of government.
744
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PS3SIDENTIAL
CAMPAIGN ACTIVITIES, et al.,
RICHARD M. NIXON.
Civil Action No. 1593-73 = FliE
MISC NO. ^t-73
ORDER
Mmes
Ed
'^- oavey
Cfm
Upon consideration of the letter dated August 22, 1973,
to the Court from Samuel Dash, Chief Counsel for plaintiffs Senate
Select Committee on Presidential Campaign Activities, et al. , filed
herewith, which letter the Court will treat as a motion to consolidate
the action herein with Misc. No. 47-73, Ir. Re Grand Jury Subpoena
Duces Tecum Issued to Richard M. Nixon, etc., and upon consideration
of the letters in opposition dated August 23, 1973 and filed herewith,
from Charles Alan Wright, Counsel for defendant Richard M. Nixon,
and from Watergate Snecial Prosecutor Archibald Cox, it is by the
Court this y ''yu^jj^ — day of August, 1973,
ORDERED that the motion to consolidate be, and the same
hereby is, denied.
.c\yU2^
^hief Judge
A TRUE COPl.
JAMLS F. DAVEY, Clerk,
By.
745
THE WHITE HOUSE
WAS H I N GTO N
September 4, 1973
Dear Judge Sirica:
We have filed today a motion requesting an extension of
time ^within which to file a written response to the motion
for summary judgment filed by the Senate Select Committee.
We have requested an extension until September 24, 1973.
Our need for this additional time is dictated partially by the
fact that we have been informed that the Court of Appeals
has decided informally that our appeal from your recent
decisipn in Misc. No. 47-73 will be heard on September 11,
1973 and that any new briefs must be filed on or before
September 10, 1973. We also will be given the opportunity *
to file a post-argument brief on or before September 14, 1973. '^
Since this is not a formal decision by the Court of App>eals, we f
did not think it appropriate to make it a matter of public record^
in the motion. . *
Respectfully, ; <*
J. Fred Buzhardt , »'.,.-.
r
Special Counsel to the President; v J
' ' ,'.■ ' ■■' '■(' *'•■
The Honorable John J. Sirica * • "
United States Courthouse ' •■ \''t
Third and Constitution Avenue, NW. '* ,'
Room 2428
Washington, D. C. 20001 ,4->->fr .■"-'«
cc: Samuel Dash *• '• -
746
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. 1593-73
MOTION FOR ENLARGEMENT OF TIME
Richard M. Nixon, pursuant to Rule 6(b), Federal Rules of
Civil Procedure, respectfully moves this Court for an extension
of time within which to respond to plaintiffs' motion for summary
judgment vntil September 24, 19V3, or such other time as the Court
may designate, and as grounds therefor would show as follows:
1. That plaintiffs' motion for summary judgment was served on
August 29, 1973 and under Local Rule l-9(d), a written response is
required on or before September 10, 1973;
2. That plaintiffs' motion for summary judgment apparently wa3
prepared without reference to Richard M. Nixon's answer to plaintiffs'
complaint, which directly challenges the jurisdictional allegations in
plaintiffs' complaint;
3. That once challenged, plaintiffs have the burden of proof with
regard to these jurisdictional allegations, and that to date they have
failed to even address these issues;
747
4. That until jurisdiction has been established, this Court
should refrain from substantive adjudication of the merits of this
action, as requested by plaintiffs' motion for summary judgment;
5. That this request is filed within the period of time prescribed
by Rule 6(b), Federal Rules of Civil Procedure, and that no previous
requests have been made;
6. That an enlargement of time will promote a just and speedy
adjudication of this action by permitting the parties, one of which is
involved in an expedited review of a related case, to place the issues
befdre this Court in an orderly manner.
WHEREFORE, Richard M. Nixon respectfully moves this Court
for an extension of time to respond to plaintiffs' motion for summary
judgment until Septeinber 24, 1973, or such other time as the Court
deems appropriate.
Respectfully submitted,
LEONARD GARMENT
J, FRED BUZHARDT
CHARLES ALAN WRIGHT
DOUGLAS M. PARKER
ROBERT T. ANDREWS
THOMAS P. MARINIS, JR.
RICHARD A. HAUSER
Attorneys for the President
The White House
Washington, D. C. 20500
Telephone Number; 456-1414
By:
748
CERTIFICATE OF SERVICE
I, J. Fred Buzhardt, hereby certify that true copies
of the attached Motion for Enlargement of Time and
Memorandum of Points and Authorities were hand de-
livered on this day of September 1973 to the
office of
Sarauel Dash
Chief Counsel
Senate Select Committee on
Presidential Campaign
Activities
United States Senate
Washington, D. C. 20510
■;. "*
:vt
J. Fred Buzhardt
749
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
Ji'j^.' »J ■•
Civil ActioR
No. 1593-73
ORDER [^
Upon motion of Richard M, Nixon, President of the United States,
for enlargement of time, and for good cause shown, it is by this Court
this ^ day of September, 1973,
r?
ORDERED that said motion is granted; and it is
FURTHER ORDERED that Richard M. Nixon, shall have up to and
including , 1973 within which to respond to plaintiffs*
5. - '
motion for summary judgment, -^ ■>
John J. Sirica
Chief Judge
750
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,
Defendant
Civil Action
No. 1593-73
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR ENLARGEMENT
OF TIME
Plaintiffs' motion for summary judgment was filed on August 29,
1973, and Local Rule l-9(d) requires a written response on or before
September iO, 1973. However, Rule 6(b), Federal Rules of Civil
Procedure, vests this Court with discretionary authority to enlarge
the period' of time within which Richard M. Nixon must respond.
Rule 6(b) provides, in pertinent part, as follows:
When by these rules. . . an act is required or
allowed to be done at or within a specified
time, the court for cause shown may at any
time in its discretion. . . order the period en-
larged if request therefor is made before the
expiration of the period originally prescribed.
Filed as it was on the same day that Richard M. Nixon's answer
was filed, the motion for summary judgment apparently was prepared
without the benefit of that answer and the defenses that it raised. Thus
the motion for summary judgment fails to address the jurisdictional ■ ■■; :f
defenses raised by the answer. ' >.»
751
-2-
Perhaps plaintiffs would suggest that the Court should decide
the merits of this case before addressing the jurisdictional question.
We submit that this would not only be inappropriate but an unfortunate
burden on the Court.
It is fundamental that the threshold question in every case is
whether the District Court has jurisdiction. Roberson v. Harria,
393 F. 2d 123, 124 (8th Cir. 1968); Berkowitz v. Philadelphia Chewing
Gum Corp. , 303 F. 2d 585, 588 (3d Cir. 1962); Underwood v. Maloney,
256 F. 2d 334, 340 (3d Cir. ), cert, denied 358 U.S. 864 (1958), The
party invoking a court's jurisdiction has the affirmative duty to allege ,
jurisdiction; and if the allegations are properly controverted, he has
the burden of establishing such allegations. As jnit by the Court in.
McNutt V. General Motors Acceptance Corp. . 298 U.S. 178, 189(1935):
There are conditions which must be met by the party
who seeks the exercise of jurisdiction in hia favor.
He must allege in his pleading the facts essential to
show jurisdiction. If he fails to make the necessary
allegations, he has no standing. If he does make them,
an inquiry into the existence of jurisdiction is obviously
for the purpose of determining whether the facts support
his allegations. In the nature of things, the authorized
inquiry is primarily directed at the one who claims that
the power of the court should be exerted in his behalf. -
As he is seeking relief, subject to this supervision, it
follows that he must carry throughout the litigation the
burden of showing that he is properly in court. The
authority which the statute vests in the court to enforce
the limitations of its jurisdiction precludes the idea that
jurisdiction may be maintained by mere averment or that
the party asserting jurisdiction may be relieved of hia
burden by any formal procedure. If his allegations of
jurisdictional facts are challenged by his adversary in
any appropriate manner, he must support them by
competent proof.
See also Gibbs v. Buck , 307 U. S. 56 (1939); KVOS, INC. v.
'Associated Press, 299 U.S. 269(1935).
752
The importance of these principles is underscored by the faqt',.t:?> ;
that courts have recognized their own duty to see that their juris-
diction is not exceeded. Thus the United States Supreme Court
has frequently raised and decided jurisdictional questions on its
own motion. See, e. g. , Mitchell v, Maurer, 293 U.S. 237, 244
(1934); Louisville & NashviUe R. R. v. Mottley, 211 U.S. 149 (1908).
By filing a motion for summary judgment, plaintiffs have aalced
the Court for an adjudication on the merits. This is premature,
however, when plaintiffs' jurisdictional allegations have been contro-
verted. Bell V. Hood, 327 U. S. 678, 682(1946).
Whether the complaint states a cause of action
on which relief could be granted is a question
of law and just as issues of fact it must be de-
cided after and not before the court has assuraed
jurisdiction over the controversy.
See alao Opelika Nursing Home, Inc. v. Richardson, 448 F. 2d
658, 667 (5th Cir. 1971), There the Fifth Circuit stated:
Federal jurisdiction is not so annbidextrous aa to
permit a district court to dismiss a suit for want
of jurisdiction with one hand and to decide the
merits with the other. A federal district court
concluding lack of jurisdiction should apply its
brakes, cease and desist the proceedings, and shun
advisory opinions. To do otherwise would be in de-
fiance of its jurisdictional fealty. Therefore, viewing
Bell's a priori requirement of finding jurisdiction be-
fore rendering a final decision on the merits as one of
the high commands of our jurisprudential system, we
conclude that the court below, once it held that it had
no jurisdiction, should have immediately dismissed
the action.
We are not suggesting by this motion that the resolution of this
cUse be delayed or prolonged. Rather we merely suggest that a juBt
753
- 4
■ ■v.. . ■ • '•;
and speedy resolution of this action can only be achieved by a ~ ■'■"^■
■'V
proper briefing on all issues raised by the pleadings. This cannot-
» be accomplished within the time framework presented by Local'
Rule I-9(d).
Respectfully submitted,
LEONARD GARMENT *.-•
J. FRED BUZHARDT •''•
CHARLES ALAN WRIGHT - j^-;
DOUGLAS M. PARKER t O-^
ROBERT T. ANDREWS
THOMAS P. MARINIS. JR.
RICHARD A. MAUSER
■f -,,^
'4h
...-V»!
Attorneys for the President
The White House
Washington, D. C. 2050(V , -. "
By:
Telephone Number: 456-14^14 ■ ' • <
• If ■ ^ -s : I
,~A — '^ - a- ■
34-966 O - 74 - pt. 1 - 49
754
FII>EB
SEP 5 1973
JA»K F. ftATEY
CLSRK
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
Defendant
Civil Action
No. 1593-73
MOTION TO EXPEDITE ARGUMENT
Plaintiffs, by their undersigned counsel, hereby move
the Court to set argument on plaintiffs' Motion for Summary
Judgment on Wednesday, September 12, 1973. The grounds for this
motion are set forth in the accompanying Memorandum in Support of
755
Plaintiffs' Motion to Expedite Argument and in Opposition to
Defendant President's Motion for Enlargement of Time.
ly submitted.
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
Samuel Dash
Chief Counsel
Fred D . Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
William T. Mayton
Assistant Counsel
Donald Burr is
Assistant Counsel
Ronald D. Rotunda
Assistant Counsel
United States Senate
Washington, D.C. 20510
Tel. No. 225-0531
Attorneys for Plaintiffs
756
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBLA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al.
Plaintiffs
V.
RICHARD M. NIXON, individually and as
President of the United States
Defendant
Civil Action
No. 1593-73
OBDER
This matter having come before the Court on plaintiffs'
Motion to Expedite Argument on their Motion for Summary Judgment,
and the Court being of the opinion that the expedition motion
should be granted, it is hereby this day of September, 1973,
ORDERED that argument on Plaintiffs' Motion for Summary
Judgment be and is expedited and set for September 12, 1973, at
John J. Sirica,
Chief Judge, United States
District Court for the District
of Columbia
757
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COM^aTTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al.
Plaintiffs
RICHARD M. NIXON, individually and as
President of the United States
Defendant
Civil Action
No. 1593-73
MEMORANDUM IN SUPPORT OF PLAINTIFFS'
MOTION TO EXPH3ITE ARGUMENT AND IN
OPPOSITION TO DEFENDANT PRESIDENT'S
MOTION FOR ENLARGEMENT OF TIME
The present action seeks Court determination of plaintiffs
right to access to certain tapes and other materials subpenaed
from defendant President. On August 29, the defendant President
filed an Answer to the Complaint pursuant to an expedited schedule
On the same day plaintiffs filed a Motion for Summary Judgment
with supporting papers. Presently there are two motions before
the Court relating to the timing of this litigation. The
defendant President seeks an enlargement of time to September 24
to answer plaintiffs' Motion for Summary Judgment. Plaintiffs,
however, request expeditious argument of this motion and urge
that Wednesday, September 12, be designated as the hearing date.
758
Page 2
The need for expedition of this cause is urgent,— 'for
there is a compelling public interest in the speedy completion of
the Committee's investigation. The Committee is required by
S. Res. 60 to file with the Senate a final report on its investi-
gations by February 28, 1974. Accordingly, the Committee would
prefer to finish its hearings by the Congressional adjournment,
which is now scheduled for October 15, 1973. While it is likely
that the Conmittee hearings may extend beyond that date, there
is every indication that its hearings must be completed by some
time in November in order to permit adequate time for accomplishing
the burdensome task of preparing a final report. If the materials
subpenaed are to be fully useable by the Committee, they must be
in hand and digested considerably in advance of the hearings'
termination. As we have pointed out in our Memorandum in Support
of Motion for Summary Judgment (pp. 15-17) the materials subpenaed
would be of vital importance to the Committee in resolving major
conflicts in testimony and making key findings.
The Committee's need for expedition is thus equal to
or even greater than that of the Special Prosecutor. The Special
Prosecutor, in arguing that his case should be decided promptly
by this Court and that his case and our case should not be
*/From the beginning plaintiffs have sought expedition of this
matter. The Complaint, Para. 25, stated that "The public interest
in, and need for, the swift completion of the functions of the
Select Committee and the unique and critical Constitutional
considerations raised by the actions of the defendant President
warrant expedition of this action at all stages and prompt resolu-
tion of the dispute." With the Complaint, plaintiffs filed a
motion to shorten the time for answer or other response to 20 days
and counsel for defendant President stipulated to this accelerated
schedule. Moreover, in a letter to the Court dated August 22
from Samuel Dash, Chief Counsel, plaintiffs stated that they
would be prepared to file all necessary briefs regarding the
summary judgment motion and be ready for argument thereon by
September 7, 1973.
759
Page 3
simultaneously determined, relied heavily on the fact that the
current Watergate Grand Jury's terra expires in December 1973
and that consequently the subpenaed tapes were needed before
that date.—' The Committee's effective deadline, as we have just
observed, is even earlier — in November.
There is another significant reason why expedition is
important to plaintiffs. The Special Prosecutor's suit, which is,
in the words of the President's counsel, "a related case" — ',
and whose ultimate resolution may as a practical matter substan-
tially affect plaintiffs' rights, is ^^ell on the way to the
Supreme Court. We are strongly of the view that the Supreme
Court should hear and decide these two cases, which raise similar
issues of great national import, at the same time. The interest
of the Senate of the United States in these issues is at least
equal in dignity to that of the Special Prosecutor, and plaintiffs
should accordingly be allowed to participate in briefing and
argument at the Supreme Court level as a party in order fully to
present their views on those critical issues. A prompt decision
by this Court on plaintiffs' action is therefore essential.
While we appreciate the fact that the President's counsel
are engaged in the litigation brought by the Special Prosecutor,
which apparently will be expedited on appeal, we reel that the
existence of that case provides no excuse for failing to move
expeditiously in the one at bar. Surely the President has ample
legal resources at his command; it has, moreover, been obvious
*/See letter from Archibald Cox to Judge Sirica, August 23, 1973.
**/Motion for Enlargement of Time, Para. 6.
760
Page 4
from the beginning that plaintiffs in this suit would seek
expedition. It would be a grave disservice to the Committee and
to the Senate of the United States if delay by counsel for
defendant President were permitted to deprive plaintiffs of a
timely ruling on this suit. We see no reason why defendant
President should not be able to muster adequate legal assistance
to respond to our Motion for Summary Judgment, raising all
jurisdictional issues counsel desire, and to be ready ior oral
argument on September 12, the date requested in our Motion. We
note that, both in our case and in the Special Prosecutor's case,
the President's counsel have demonstrated the capacity to move
*/
with expedition.— They experienced no difficulty in meeting the
accelerated schedule set by this Court in the Special Prosecutor's
case.
We readily acknowledge that there are jurisdictional
issues raised by the Answer that the Court must resolve before it
can enter a favorable order in response to our motion for
Summary Judgment. However, it is completely clear that the
jurisdictional issues and those on the merits can be heard and
considered by the Court at the same time; a two-step process,
where a hearing is first had on jurisdiction and a decision
rendered on that issue and then issues on the merits are heard
and decided, is not necessary or even appropriate under the
Federal Rule 56.
*/We must quarrel with counsel's assertion that they are not
suggesting by their motion "that the resolution of this case be
delayed or prolonged." If their schedule is followed, this case
will not be heard for at least two weeks after the date we have
proposed, a delay which, in the present circumstances, would be
severely disadvantageous to plaintiffs.
761
Page 5
We will be prepared on Monday, September 10, 1973, to
file a supplemental memorandum that fully establishes the juris-
dictional bases on which this action rests and that addresses any
other issues raised by the defendant President's Answer not dealt
with in the Memorandum In Support Of Motion For Summary Judgment
already filed. We see no reason why the President's counsel,
since they have raised jurisdictional issues in their Answer and
thus must be conversant with their arguments in those regards,
cannot likewise file a memorandum on that date setting forth
their jurisdictional contentions, together with their arguments
on the merits, which they have already extensively treated in
the context of the Special Prosecutor's proceeding. If this
course is followed, briefing on all issues will be before the
Court, a ruling on our Motion for Summary Judgment will not be
"premature", and this Court can properly set argument for
Wednesday, September 12, the date we request in our expediting
motion.
Respectfully submitted,
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D.C.
Of Counsel
Arthur S. Miller
uiiief Consultant to
the Select Committee
Washington, D.C.
Of Counsel
7^<'i^-
J^. 5; /^?3
amuel Dash
Chief Counsel
Fr_d D. Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
William T. Mayton
Assistant Counsel
Donald Burris
Assistant Counsel
Ronald D. Rotunda
Assistant Counsel
United States Senate
Washington, D.C. 20510
Tel. No. 225-0531
Attorneys for Plaintiffs
762
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUi-lBIA
SENATE SELECT COMMITTEE Oc? PRESIDENTIAL
CAMPAIJN' ACTIVITIES, ec al.
RICHARD M. NIXON
Civil Action No. 1593-73
seps
D
ORDER
MMss f
1373
^AVBY
Upoa consideration of the Motion to Expedite Argument
filed by plaintiff Senate Select Committee on Presidential Campaign
Activities, et al. on September 5, 1973, and the Court having heard
oral argument, it is by the Court
1973,
ORDERED that the Motion to Expedite be, and the same
hereby is, denied.
Clerk
J y i^ J I J y ailV^ L.L1C \_«VU1.U lldVJ. ki^ LLC CI 1. V*
■t this ^/^^L/ day of September,
L^y\^i-,'> i^ C ^-M^-^ti^'^
763
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
ORDER
Civil Action
No. 1593-73
OAvey
Cleric
Upon motion of Richard M. Nixon, President of the United States,
for enlargement of time, and for good cause shown, it is by this Court
this ^W^ day of September, 1973,
ORDEE.ED that said motion is granted; and it is
FURTHER ORDERED that Richard M. Nixon, shall have up to and
including ^,4il^^l^r\^4v^P^ . 1973 within which to respond to plaintiffs'
motion for summary judgment.
Johfi J. Sirica
Chief Judge
A TKUT^ COl'V
764
SAM J. DWIH. JR.. tLC ItMAH
HOWAJtO H. BAKCR. JR.. TKM C CHAIRMAN
MCRMAH C TAIXAOaC, «A. UtWAR. ^i. OURHCT. FLA.
OAMU. K. INOUrC. HAWAII LOWn.l.'p. WCICKEJt. JR..
ilMKPH M. MOMTOYA. N. MDC.
nuruS L. EOMISTEN
Dcrvnr couNact.
QlCntlcb Pieties Sierxaie
SELECT COMMITTEE ON
PRESIDENTIAI. CAMPAIGN ACTIVITIES
(mmauAMT to a. nc m. no comorcss)
WASHINGTON. D.C. 20510
September 18, 1973
The Honorable John J. Sirica
Chief Judge
U. S. District Court
for the District of Columbia
Re: Senate Select Committee on Presidential
Campaign Activities v. Richard M. Nixon
C. A. No. 1593-73
Dear Judge Sirica:
As your Honor is aware, the President's counsel will
respond to our motions for summary judgment by September
24. In order that they, on that date, will be able to
submit a brief on all the issues in this case and to facili-
tate the Court's consideration of these issues, plaintiffs
are today filing a supplemental memorandum in support of our
motions for summary judgment that deals with the jurisdic-
tional and other technical issues raised by the President in
his answer.
We hope that this early filing will allow your Honor
to set a bearing date for our motion in the very near future
«nd Tespfectfully ve«{aest that September 26 be {designated for
that purpose. If any additional written response is required
to the papers filed by the President on September 24, we will
submit such response before the hearing on the 26th, if that
date is selected for the argument.
765
Judge Sirica page two
We would emphasize again our very strong desire for
expedition in this case so that the issues involved can be
finally resolved while the Committee's hearings are still
in progress.
Samuel Dash
Chief Counsel
cc: Charles A. Wright
766
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
SUPPLEMENTARY MEMORANDUM IN SUPPORT OF
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Samuel Dash
Chief Counsel
Fred D. Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B, Stewart
Special Counsel
Donald S. Burris
Assistant Counsel
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D. C.
of Counsel
Arthur S. Miller
Chief Consultant to
the Select Committee
of Counsel
William T. Mayton
Assistant Counsel
Ronald D. Rotunda
Assisteint Counsel
United States Senate'
Washington, D. C. 20510
Telephone Number 225-0531
Attorneys for Plaintiffs
767
TABLE OF CONTENTS
I. Congress in the Discharge of Its Legislative Duties
Is Empowered to Investigate Unlawful Conduct 4
11. The Committee has been Fully Authorized by the
Senate to Subpena the Defendant President and to
Institute Suit in Aid of its Subpena Power 8
A. The Committee's Authority to Subpena the
Defendant President 8
B. The Committee's Authority to Institute this
Litigation -11
ni. This Court has Jurisdiction over the Subject Matter
of the Suit 13
A. 28 U.S.C. § 1331 Affords Jurisdiction Because
the Requisite Jurisdictional Amount is Present 14
(1) Out-of-Pocket Expenses 16
(2) The Value of Constitutional Rights and
Duties of the Select Committee and its Members . . 17
(3) The Value of this Cause to Defendant President ... 19
B. Other Provisions Establish Additional Grounds of
Jurisdiction Over This Suit 20
(1) 28 U. S. C. § 1345 and Article m of the
Constitution 20
(2) 28 U.S.C. §1361 24
(3) The Administrative Procedure Act 26
CONCLUSION 28
AFFIDAVIT OF SENATOR SAM J. ERVIN, JR.
Frankfurter, Hands Off the Investigation .
■68
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. 1593-73
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
*/
This Court, by its decision in Misc. No. 47-73— has effectively
resolved many of the focal issues in the present case. Its rulings regarding
the power of the Court to determine the executive privilege issue and to
enforce its determinations against the President are particularly significant.
Thus, the Court has held that the President does not enjoy an absolute dis-
cretionary power to withhold relevant evidence but that the final decision
whether materials are protected by executive privilege rests with the Court,
not the President. As the Court observed, "the laws of evidence do not excuse
anyone because of the office he holds. " (Op. p. 14). Moreover, the Court,
separation of powers considerations notwithstanding, has affirmed its
authority to direct the President to comply with a lawfully issued subpena
duces tecxim, holding that the White House is not a sacrosanct "fourth branch
of government", immune from all process. (Op. p. 10). Finally, the Court has
*^An Re Grand Jury Subpoeng^ Duces Tecvim Issued to Richard M. Nixon, or Any
Subordinate Officer, Official or Employee with Custody or Control of Certain
Documents or Objects.
709
2.
established that there is no executive privilege to withhold evidence relating
to executive criminality. The doctrine cannot be used "as a cloak for serious
criminal wrongdoing. " (Op. p. 19). "If the interest served by /the^/ privilege
is abused or subverted, the cleiim of privilege fails. " (Op. p. 20).
These rulings, while made in the context of the Special Prosecu-
tor's case, are fully controlling here. If the Court, in the face of separation
of powers considerations, may resolve an evidentiary dispute between the
Grand Jury and the President, the Court may resolve a like dispute between
the Senate and the President. If the Court has power to enforce the process of
tihe Grand Jury, surely it is similarly empowered to enforce the Senate's proces
Moreover, if the Grand Jury is entitled to subpenaed Presidential
evidence relating to criminal wrongdoing, the Congress should enjoy at least
an equal right to such evidence. As the Supreme Court asserted in United
States V. Bryan, 339 U. S. 323, 331(1950), the principle that "the public . , .
has a right to every man's evidence" is just as applicable to legislative in-
vestigations as to judicial proceedings. The Committee, in fact, presents an
even stronger case for the materials subpenaed than does the Special Prosecu-
tor. We submit that the public interest in determining the extent of mal-
feasance in the executive brajich and the need for corrective legislation is of
greater moment to the nation than the indictment and conviction of a few guilty
individuals. Furthermore, the Committee's request, unlike that of the
Special Prosecutor, focuses on the President's own possible criminality. It
is here that the President's claim of privilege is weakest; indeed, as shown
(Mem. p. 18), the President's own counsel has conceded that in such circum-
stance the doctrine of executive privilege is inapplicable.
♦ /Moreover, ■where, as here, the President acts in contravention of the
express will of Congress "his power is at its lowest ebb. " Youngstown Sheet
and Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
As demonstrated in Section II, this memorandum, it is absolutely clear that
the Senate intended to authorize the Select Committee to subpena documents
from any executive officer, including the President.
**/ "Mem. p. " refers to the "Memorandum of Points and Authorities In
Support of Motion for Summary Judgement" filed by the Select Committee on
August 29, 1973.
70
For these reasons, we submit that the basic issues in this case
have in substance been resolved by this Court's-decision in Misc. No. 47-73.
In Answer to our Complaint, the defendant President, perhaps in anticipa-
tion of the Court's adverse ruling in Misc. 47-73 and its application here,
concentrated mainly on technical and jurisdictional objections to the present
suit, rather than on the merits of this litigation. Although these
objections are nximerous, they dissipate when subjected to proper analysis. We
show below that: (1) The Select Committee, in investigating corruption and
criminality in high executive offic«, is fully within its constitutional preroga-
tives and in the best tradition of congressional investigations, (2) The Select
Committee has ample authority to issue the subpenas in question and to
instigate and conduct this litigation, (3) The Committee has standing to bring
this lawsuit, and several jurisdictional bases empower this Court to decide
it.
4.
I, Congress in The Discharge of Its Legislative Duties Is Empowered
to Investigate Unlawful Conduct
The defendant President's claim that the Committee's inquiry
constitutes an vmconstitutional "criminal investigation and trial" (Answer,
Sixth Defense) is utterly without merit. As we have shown (Mem. pp. 14-17),
Congress, since the beginning of the nation, has investigated wrongdoing and
maladministration by executive officials under its constitutional power to
determine the need for new legislation and fulfill an associated "informing
function. " The Congress is not ousted of investigatory power simply because
the executive conduct under scrutiny may be criminal and the defendant
President's claim to the contrary has been repeatedly rejected by the Supreme
Court.
In relevant respects the case at bar is a virtual duplicate of
McGrain v. Daugherty, 273 U.S. 135 (1927). There the Supreme Court
broadly sustained a Senate inquiry into alleged malfeasance and nonfeasance
by Attorney General Daugherty in connection with the Teapot Dome scandal.—
The investigation was resisted on grounds essentially identical to those now
asserted by defendant President. It was claimed that:
"The investigation is not legislative, but judicial in
its character; it is an attempt to prosecute, try, and
determine the guilt or innocence of Harry M. Daugherty.
Congress has no such power except in impeachment pro-
ceedings. " **/
This assertion was flatly rejected by the Supreme Court, which upheld the
validity of the investigation and ruled that:
(l)"/T_/he power of inquiry--with process to enforce it--is
an essential and appropriate atixiliary to the legislative
function." 273 U.S. at 174.
*/ The Attorney General had also been charged with Izixity in enforcing the
antitrust laws. See 65 Cong. Rec. 3299, 3409 (1924).
**/Argument for appellee, 71 L. Ed, 581. McGrain arose out of the issuance
by the investigating committee of subpenas to Mally S. Daugherty, the
Attorney General's brother, to explore Mally Daugherty's possible involve-
ment in alleged wrongdoing by his brother. On Mally Daugherty's failure to
comply with the subpenas, he was seized by the Senate Sergeant-at-Arms. He
then, by way of habeas corpus, challenged the validity of his detention and,
with it, the Senate's investigation. The Supreme Court upheld the validity of
the investigation and detention.
772
(2) The Attorney General's^ administration of the
Justice Department was "/_p_/ lainly /a subject/
on which legislation could be had and would be
materially aided by the information which the in-
vestigation was calculated to elicit. " 273 U.S. at
177.*/
(3) It was not "a valid objection to the investigation
that it might possibly disclose crime or wrongdoing"
by the Attorney General. 273 U. S. at 180.
What the Supreme Court said in Mc Grain regarding a legislative investigation
is controlling here where the Congress, with a view to corrective legislation,
is investigating alleged wrongdoing by high executive officials.
In Sinclair v. United States, 279 U. S. 263 (1929), the Supreme
Court again rejected the claim that a Senate investigation of the Teapot Dome
scandal was invalid because it dealt with allegedly unlawf\il conduct within the
exclusive province of the judicial system. Congress had previously by Joint
Resolution directed the President to institute appropriate civil and criminal
court proceedings with respect to certain oil leases between Sinclair's
company and the Interior Department. Sinclair asserted that this Resolution
"had made the whole matter a judicial question which was determinable only
in the Courts. " 279 U. S. at 290. The Supreme Court repudiated this con-
tention, stating that "/_i_/t is plain that investigation of the matters involved
. . . might directly aid in respect of legislative action. " The Court continued:
"... It may be conceded that Congress is
without authority to compel disclosures for the
purpose of aiding the prosecution of pending suits
but the authority of that body, directly or through
it^ committees, to require pertinent disclosures in
aid of its own constitutional power is not abridged
because the information sought to be elicited may
also be of use in such suits. " 279 U.S. at 295.
*/In response to the argument that the true motive behind the investigation
was not to consider the need for new legislation but to pillory the Attorney
General, the Court asserted that a presumption should be indulged that
"the real object" of such an investigation was to aid Congress in its legisla-
tive function. 273 U.S. at 178. For later affirmations of this presumption,
see Barenblatt v. United States, 360 U.S. 109, 133 (1959); Watkins v. United
States, 354 U.S. 178, 200(1967).
/ /
3
The teachings of McGrain and Sinclair have been reaffirmed by
more recent decisions that have repeatedly sustained Congress' power to
investigate unlawful conduct in connection with its legislative responsibilities.
Hutcheson v. United States, 369 U. S, 599 (1962) (Senate Select Coimnittee on
Improper Activities in the Labor or Management Field; investigation of unlaw-
ful use of union funds to influence prosecution); Delaney v. United States,
199 F. 2d 107 (1st Cir. 1952)(House Ways and Means Subcommittee on Adminis-
tration of the Internal Revenue Laws; Investigation of Corruption by Collector
of Internal Revenue); United States v. Costello, 198 F. 2d 200 (2d Cir, ), cert,
denied, 344 U. S. 874 (1952) (Senate Special Committee to Investigate
Organized Crime in Interstate Commerce); United States v. Orman, 207 F. 2d
148 (3rd Cir. 1953) (same); Sanders v. McClellan, 150 U.S. App. D. C. 58,
463 F. 2d 894 (1972) (Senate Government Operations Permanent Subcommittee
*/
on Investigations; investigation of riots and violent disorders):"
This consistent precedent is controlling here. Moreover, it is
clear from a policy standpoint that criminal conduct is a legitimate subject of
legislative concern because the existence of such conduct may well necessi-
tate remedial legislation and public revelation of its scope. — The need for
legislative scrutiny is peculiarly acute where wrongdoing by executive
officials is involved, for in such cases there is a serious danger that the
_*/The very existence of the "use immunity" statute for compelled testimony
before Congress, which this Court construed in In Re: Application of United
States Select Committee on Presidential Camoaign Activities, (D. D. C. , Misc.
No. 70-73, June 12, 1973), recognizes that congressional investigations may
deal with conduct which may also be the subject of criminal prosecution. And
this Court's decision in that proceeding appears to assume the validity of the
S«lect Committee's investigations into' criminal conduct.
**/ The subject of the Committee's investigation -- unlawful and improper
activities by executive officials in connection with the 1972 presidential
Ccimpaign -- is "_/ g_/lainly J_a. subject/ on which legislation could be had and
would be materially aided by the information which the investigation was
calculated to elicit." McGrain v. Daugherty, 273 U.S. 135, 177 (1927). This
case is thus wholly unlike Kilbourn v. Thompson, 103 U.S. 168 (1881), where
the Court found that the subject of inquiry -- the conduct of a particular real
estate pool subject to then-pending bankruptcy proceedings -- could not lead
to valid legislation.
774
corrective processes of criminal justice themselves will be corrupted or ob-
structed. That was precisely what occurred in Teapot Dome -- the laxity of
Justice Department officials facilitated a "coverup" of criminal activities. The
Senate's investigations -- which were fully sustained by the Supreme Court
in McGrain and Sinclair -- laid bare the full extent of the wrongdoing and led
to the appointment of a Special Prosecutor and the prosecution of the
*/
principal wrongdoers.
The parallels to this case are obvious. Here, too, the evidence
shows that certain highly-placed officials obstructed the w»rk of the Justice
Department and engaged in a "cover-up". It was through the efforts of the
Committee, together with the work of this Court and of the media, that the
extensive nature of the wrongdoing was first exposed and vigor restored to
the system of criminal justice. In these circumstances, it is spurious in the
extreme to claim that the Committee and its members "are _/not/ entitled to
investigate criminal conduct" — and that all such investigations should have
***/
been left to executive discretion.
If Teapot Dome and Watergate teach anything, it is "the danger to
effective and honest conduct of the Government if the legislature's power to
probe corruption in the executive branch/Is/ unduly hampered. " Watkins v.
United States , 354 U. S. 178, 194-95(1957). In such cases, legislative inquiry
is vitally important not only to consider the need for remedial measures but
also to unstick the clogged wheels of the criminal justice system.
*/ Attached to this memorandum is an article published by Felix Frankfurter
in the New Republic in May, 1924, in which he gives an overview of the
congressional investigation of the Teapot Dome scandal ajid argues for the
continuance of vigorous congressional inquiries into executive wrongdoing.
**/ Answer pa r a, 3 ; See also Sixth Defense.
***/ It is also anomolous,in our judgment, for the defendant President to
suggest that Watergate matters must be left exclusively to the criminal
justice system when he is, at the same time, refusing to give vital evidence
to the Grand Jury.
775
n. The Committee has been Fully Authorized by the Senate to Subpena
the Defendant President and to Institute Suit in Aid of its Subpena Power.
In his Answer, the defendant President asserts that the Committee
was not authorized by the Senate to issue subpenas to him (Seventh Defense).
He also contends that the Committee, without Senate "review and action", was
not empowered to instigate this litigation (Eighth Defense). We deal with
these contentions in turn and demonstrate that each is without substance.
A. The Committee's Authority to Subpena the Defendant President.
In refusing to comply with the Committee's subpenas, the defen-
dant President at no point even suggested that the Committee lacked authority
from the Senate to subpena him; indeed, in resting his refusal on "the Con-
stitutional principle of separation of powers, " he impliedly conceded that
the Committee was invested with the full power of the Senate in this respect.
It was only many weeks later, after this litigation was initiated, that he
belatedly claimed a lack of authority to issue the subpenas. This claim is
**/
untimely, and has therefore been waived. Assuming, arguendo, that it
should be considered, it is untenable.
The Committee's authority was framed by the Senate in S. Res.
60 in sweeping terms that allow investigation of the President. The Committee
is directed to investigate the extent to which "any persons" engaged in
designated activities in "the presidential election of 1972, or in any related
campaign . . . conducted by . . . any person seeking nomination or election
*/ Exhibit G to the Complaint, p. 2, incorporated by reference in Exhibit
E to the Connplaint. See also Exhibit F to the Complaint.
**/ The Supreme Court has repeatedly held that asserted defects in the power
or authority of a congressional committee must be raised before the committee
where possible; a person who refuses to furnish evidence to a committee on
other grounds may not assert alleged defects in the committee's authority for
the first time in subsequent litigation. United States v. Bryan, 339 U.S. 323
(1950); United States v. Fleischman, 339 U.S. 349 (1950); McPhaul v. United
States, 364 U.S. 372 (I960). This rule, which was reaffirmed by the Court of
Appeals for this circuit in Shelton v. United States, 131 U.S. App. D. C. 315, 40^
F, 2d 1292 (1968), controUs here. Its purpose is plain. A person resisting a
subpena is not permitted to toy with a committee; he must raise before the
committee any challenge to its authority so that it may have the opportunity to
consider the objection or remedy itself. McPhaul v. United States, supra at
379.
776
as the candidate of any political party for the office of President of the United
States in such election . . . " S. Res. 60, 93d Cong. , 1st Seas. Sec. 1 (a).
Since the defendant President is a "person" who sought "nomination" and
election" to the "office of President of the United States", the Committee is
authorized to examine his conduct. This was made clear by Senator Ervin
in the floor debates preceeding the adoption of S. Res. 60: "/The Resolution_/
gives the Select Committee sufficient authority to investigate the presidential
election of 1972 and any . . . activity of any person seeking nomination or
election as a candidate . . . for the office of President ..." 119 Cong. Rec.
at S 2233 (1973) /_EiTiphasis supplied_/.
In aid of its investigatory powers, the Committee was also granted
authority to "require by subpena . . . any . . . officer ... of the executive
branch of the United States Government , , , to produce . , . any . . .
communications, documents, papers . . . recordings, tapes, or materials
relating to any of the matters or questions it is authorized to investigate and
*/
study." S. Res. 60, 93d Cong. , 1st Sess. S«>c. 3(a)(5). This grant in-
cludes authority to subpena materials from the defendant President, for he is
*/ The defendant President's contention (Answer, Ninth Defense) that the
subpena attached to the complaint as Exhibit D is "unreasonably broad and
oppressive" is insubstantial. That subpena seeks materials relating to the
involvement of named individuals in alleged criminal acts related to the 1972
Presidential campaign and election. We would hope that the amount of such
material would be comparatively limited and that the records relating to
criminal conduct in the White House are not so numerous that it would be
"oppressive" to gather them together. But should their number prove extensivt
the subpena is fully valid. In McPhaul v. United States, 364 U. S. 372, 382
(I960), the Supreme Court upheld a Congressional subpena of similar scope
stating that"/_a./ dequacy or excess in the breadth of the subpena are matters
variable in relation to the nature, purposes, and scope of the inquiry. " Where,
as here, the Committee's inquiry is "a relatively broad one, " the permissible
scope of materials that could reasonably be sought was necessarily equally
broad. " _Id.
Moreover, because of the defendant President's failure to cooperat*
more fully with the Committee, the plaintiffs do not know precisely what
materials in the possession or under the control of the defendant President
might be relevant to the Committee's inquiry. In these circumstances, the
subpena is frame^ "with all of the particularity the nature of the inquiry and
the /_Committee's/ situation would permit. " Oklahoma Press Publishing Co.
V. Walling, 327 U.S. 186, 210 n. 48 (1946); McPhaul v. United States, supra
at 383.
777 10-
obviously an "ofixcer ... of the executive bran^.i of the United States
Government. " The presidency is an "offic^'of the government and is
frequently spoken of as aach.J*/ The Constitution itself repeatedly refers to
the "Office of the President." U.S. Const. Art. II, sec. 1, clauses 1, 5,
7.
Any possible doubts whether the Senate intended to include the
President as an "officer" subject to subpena under Sec. 3-<a) (5) are laid
to rest when S. Res. 60 is considered as a whole. As already shown, the
Committee was authorized to investigate the defendant President's conduct ,
and it is logical to conclude that the Committee was likewise empowered to
obtain relevant evidence from hinn. In addition, the Resolution specifically
refers at the outset to "the office of President of the United States. " Sec. 1
(a), and that phrase frequently reappears in the text of the Resolution. ** /
Since a congressional resolution, no less than a statute , must be considered
in its entirety, the reference in Sec. 3 (a) (5) to "officer ... of the United
States" must be read in pari materia with the frequent references elsewhere
in tte Resolution to "office of President of the United States. " Such a reading
confirms the Senate's intent to authorize the Committee to subpena the Presi-
dent, if necessary. ***/ Furthermore, S. Res. 60 was passed in an atmosphere
of widespread public doubts regarding the possible involvarnat cf the President
^Counsel for the President themselves refer to the President as an "officer"
of the United States. See, e. g. , transcript of argument before this Court on
August 22, 1973 in Misc. No. 47-73 at pp. U, 17.
*^ee the references to "office of President of the United States" in Sees. 2
(7), (9), (11).
***/Certainly congressional committees have successfully issued subpenas to
high executive officials in the past under subpena authority framed in general
terms. See, e. g. , 3 Annals of Cong. 493, 1106 (1792) (investigation of St.
Clair expedition xinder general authority to send for "persons, papers, and
records;" "papers and accovints" furnished by Secretaries of Treasury and
War, who also testified); H. R. Rep. 194, 24th Cong. , 2d Sess. ; Jrl. of
Committee 75, 104 (1837) (Committee subpenas issued to Secretary of
Treasury, who complied); S. Res. 71, 77th Cong. , 1st Sess. (1944), Hearings
before Special Committee Investigating the National Defense Program, 78th
Cong., 2d Sess., at 10505 et seq. ("Truman Committee" authorized to subpens
"witnesses" and "documents;" evidentiary subpena issued to Attorney General
and Secretary of Navy, who complied); P. L. 601, 79th Cong. § 134 (a) (1946)
and Hearings before the Permanent Subcommittee on Investigations of
Committee on Government Operations, 84th Cong., 1st Sess. at 43 et seq.
(1955) (Committee authorized to subpena "witnesses" and "correspondence ";
subpena issued to Harold Stassen, Administrator of Foreign Operations
Administration, who complied) See generally 104- Cong. Rec. 3848-50(1958)
.(remarks of Rep. Meader)-
778
II.
in "Watergate". This history gives further support to the contention
that, with S. Res. 60, the Senate intended to give the Committee power to
subpena the President. *'
B. The Connmiittee's Authority to Institute this Litigation.
The Committee's authority to bring this litigation is fully
established by a standing order of the Senate (Senate Resolution 262, 70th
Cong. , 1st Sess. (1928))which provides in pertinent part:
That . . . any committee of the Senate is hereby authorized
to bring suit. . . in any court of competent jurisdiction if
the comnnittee 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 . . . resolution of the Senate ....
Such suit may be brought and prosecuted to final deteimina-
tion irrespective of whether or not the Senate is in session
at the time the suit is brought or thereafter. " **/
This resolution was adopted by unanimous vote of the Senate in response to
bhe Supreme Court's decision in Reed v. County Commissioners, 277 U.S.
376 (1928), which dismissed a civil action broughtby* Senate committee to
enforce a subpena on the ground that the committee had not been explicitly
authorized by the Senate to bring suit. As the legislative history of the
resolution shows (see 69 Cong. Rec. 10596 (1928) ), its purpose was to
*/ The unusually broad nature of the Committee's powers was explicitly
acknowledged in the debates preceding the adoption of S. Res. 60. For
example. Senator Scott, the minority leader observed:
"... /_S. Res. 60_/ is the broadest resolution ever
introduced in the Senate, in my recollection ..."
"/_It contains /the widest possible powers to send a hoard
of officials amongst the executive department --if I can
paraphrase the Declaration of Independence a little- -to
send a group of staff members ... to look into all the raw
files of the Governmient . . . , "
"This is a power never before given to anyone in the history
of our Constitution, . . "ii9Cong. Rec. at s 2320(1973)
j_ Emphasis supplied /
And Senator Cotton, a senior member of the minority party, declared:
"There must not be any suspicion allowed to go out to the
American people that there has been any kind of a whitewash
or any kind of a cover-up, no matter who may be involved,
^vhere they may be found, or how high they may be. " 119 Cong.
Rec.atS2323 (1973) /^Emphasis suppliedjj
**/ S. Res. 262 is found in the Senate Manual at § 77 and is attached to
EHe Complaint as Exhibit B.
779
12.
remedy the Reed defect and make clear that Senate committees are
authorized to institute litigation.
Contrary to the assertion of defendant President, the Committee
was not required to seek approval of the entire Senate before instigating
the present suit. Certainly, such approval is not required by S. Res. 262;—
in fact, that resolution explicitly obviates the need for such approval by
providing that "suit may be brought ^y a committee/ irrespective of
whether or not the Senate is in session at the time the suit is brought. "
/Emphasis supplied/ S. Res. 60 does empower the plaintiff Committee
to "make to the Senate any recommendations it deems appropriate" with
regard to refusals to obey its subpenas, (see Sec. 3 (a) (6)), but this
language simply gives the Committee the wholly discretionary option to
make "recommendations" to the Senate— and in no way qualifies the
Committee's unrestricted authority under S. Res. 262 to institute litigation.
Clearly, the Senate, through S. Res. 262, has delegated to the plaintiff
Committee all of the authority which the entire Senate would have to institute
the present litigation.
*/ The authority to sue granted by S. Res. 262 was successfully
employed by the Senate Banking and Currency Committee without seeking
full Senate approval in In Re the Hearings by the Committee on Banking
and Currency, 245 F. 2d 667 (7th Cir. 1957).
**/ For example, in view of the decision in Wilson v. United States,
125 U.S. App. D. C. 153, 369 F. 2d 198 (1966), it is possible that the
Committee might want full Senate approval before contempt proceedings
under 2 U. S.C. §192 are instituted. The Committee would also want
Senate approval before the Senate Sergeant-at-Arms is sent to arrest
someone who has refused to obey the Committee's process.
780
13,
ni. This Court has Jurisdiction over the Subject Matter of the Suit.
The Complaint asserts five statutory and constitutional bases of
jurisdiction for this suit -- 28 U.S. C. §1331, 28 U, S. C. il345, 28 U, S. C.
§1361, the judicial review provisions of the Administrative Procedure Act,
5 U.S. C. §8701-706^ and Article III of the Constitution. Each of these provi-
sions aifords a fully sufficient jurisdictional foiindation. It is particularly
clear that 28 U, S. C. §1331 is apposite here because the only objection to its
application -- that the jurisdictional amount is not present --is utterly
without substance.
Before turning to these jurisdictional provisions, it is appropriate
to deal summarily with defendant President's assertion that the Committee
lacks standing to bring this action (Answer, Fifth Defense). A plaintiff has
"standing" if he has a "personal stake" in the controversy before the Court.
Sierra Club v. Morton, 405 U. S. 727, 732 (1972); Barlow v. Collins, 397
U.S. 159. 164 (1970); Baker v. Carr, 369 U. S. 186, 204 (1962). Here, the
"personal stake" of the Committee and its members is their interest in
(1) obtaining evidence necessary to the performance of their legislative and
informing functions and (2) reeiffirming their authority to issue subpenas to
all relevant officials. It has been repeatedly held that a legislator's stake in
the <£scharge of his official responsibilities empowers him to bring suit to
protect and further those responsibilities. Minnesota State Senate v. Beens,
406 U.S.I (1972); Coleman v. Miller, 307 U.S. 433, 438 (1939); Mitchell v.
Laird, U. S.App, D. C. , 476 F. 2d 533 (March 20, 1973); Kennedy v.
Sampson, (D. D. C. , C. A. 1583-72, August 16, 1973); Holtzman v. Richardson,
(E, D. N. Y., 73-C-537, July 25, 1973), rev'd on other grounds, F. 2d_
(2d Cir. 1973); Williams v. Phillips, (D. D. C. , C.A. 490-73, June 11, 1973),
See also Trombetta v. State of Florida, 353 F. Supp. 575 (M. D. Fla. 1973).
781
14.
These rulings are directly applicable here.jj^/
A. 28 U. S. C. §1331 Affords Jurisdiction Because
the Requisite Jurisdictional Amount is Present
Counsel for defendant President contend that federal question
jurisdiction under 2 8 U. S. C. §1331 fails because the amount in controversy
does not exceed $10,000, exclusive of interest and coats. (Answer, Second
Defense). There is no merit to this claim, as now demonstrated.
The Supreme Court has ruled thai; in determining whether a
prospective litigant has satisfied the jurisdictional amount requirement, all
doubts must be resolved in favor of the plaintiff:
"... /T/he surfii claimed by the plaintiff controls if
the sum is apparently made in good faith. It must
appear to a legal certainty that the claim is less
than a jurisdictional annount to justify dismissal. "
St. Paul Mercury Indemnity Co. v. Red Cab Co.
303 U. S. 283, 288-89 (1938).
*/ The decision by this Court in Williams v. Phillips is especially apposite.
The plaintiffs, mennbers of the Senate Labor and Public Welfare Committee,
brought their action under 28 U.S. C. §1331, and alleged that the defendant
was serving illegally as Acting Director of the Office of Economic Opportunity
in that he had not been confirmed first by their Committee and later by the
entire Senate. The Court, citing Mitchell v. Laird, supra , rejected the
claim that the plaintiffs lacket' standing to bring the action:
"In this case, a c'eclaration that the defendant is unlawfully
serving in office would bear upon the plaintiffs' duties to
consider appropriations for OEO, or other legislative
nnatters affecting OEO or the position of OEO Director.
Moreover, the service by the defendant as Acting Director
of OEO, rather than Director, does not remove the direct
injury to plaintiffs' alleged right to pass on the individual
nominated to be Director. The injury is aggravated if
anything, because the Acting Director is performing the duties
of the Director without the advice and consent which the
plaintiffs would have been able to assert over an individual
whose name had been submitted to the Senate for confirmation. "
^eealso United States Servicemen's Fund V. Eastland (D. C. Cir. No. 24,279
Aug. 30, 1973), a suit brought under §1331, where the Court held that a third
party has standing to challenge a congressional subpena directed at records
relating to him. It follows from this decision that a congressional committee,
as an immediate party in interest, would have standing to instigate litigation
to enforce ite own subpenas.
782
15.
(
"Mere difficulty of precise estimation /of damages_/ in nnonetary terms"
or the fact that the damage amount may be somewhat speculative does not
defeat jurisdiction. 1 Moore, Fed. Practice, Para, 0. 92(5) at 845. See also
Berk v. Laird , 429 F. 2d 302, 306 (2d Cir. 1970); Columbia Motion Pictures
Corp. V. Rogers , 81 F. Supp. 580 (S.D.-W. Va. 1944). In an action
where no damages are claimed, the amount in controversy is measured
by the?'value of the right to be protected or the extent of the injury to be
prevented. " Marquez v. Hardin, 339 F. Supp. 1364, 1370 (N.'D; Cal. 1969);
Tatum V. Laird, 144 U.S. App. D.C. 72, 76, 444 F. 2d 947, 951, rev'd on
other grounds, 406 U.S; 1 (1972); PennR.R^ v. City of Girard , 210 F. 2d
437, 439 (6th Cir. 1954). And where the plaintiff has asserted a
violation of a constitutional right, "the better and modern view ... is to
give the jurisdictional allegations of the complaint a broad and liberal
interpretation. " Fifth Ave. Peace Parade Connmittee v. Hoover, 327 F. Supp
238, 241-42 (S.D.N.Y. 1971). See also Tatum v. Laird, supra.,; Berk v.
Laird, supra. ; Cortright v. Resor, 325 F. Supp. 791 (S.'D.'N. Y.'), rev'd
on other grounds, 447 F.2d 245 (2d Cir. 1971); United States Servicemen's
Fund V. Eastland , U.S. App. D.C. , F. 2d (Civil No. 24,279
Aug. 30, 1973) slip op. at 16.
In the instant case, the jurisdictional amount requirement is met
whether viewed from the perspective of (1) the out-of-pocket expenses that
the Select Committee (and the public) will suffer if the two subpenas are not
honored, (2) the value of the constitutional rights and duties to investigate
criminality and corruption in high government office and to propose corrective
legislation that rest with the Select Committee and its members, or (3) the
possible injury to defendant President if this suit is successful.
783
16.
(1) Out-of-Pocket Expenses
The two subpenas the President has rejected seek tape recordings
of five significant conversations with John Dean and other documents and
materials relating to the possible criminal involvennent of twenty-fi-ve present
and former White House officials. If the Committee is denied access to the
vital materials it has subpenaed, it must seek by other, more difficult, means
including additional investigations and the taking of additional testimony, the
information that could be easily obtained if these rnaterials were released.
Furthermore, non-release of the tapes and other materials will make the
Committee's report-writing and legislative recommendation functions much
more taxing and expensive. The Committee, to fulfill its responsibilities
under Sv Res. 60, must reach some conclusions as to the involvement or
noninvolvement of the President and other high officials in the criminality
that tainted the 1972 campaign and election. This task would be greatly
simplified if the subpenaed tapes and materials were made available. But, if
they are not, long hours must be spent by senators and staff alike sifting
through the contradictory and inconsistent evidence on hand to reach Sonne
consensus. The non -availability of the subpenaed materials may also prolong
the public hearings because the best, most succinct evidence will not be avail-
able for presentation. In addition, without knowing the full extent of admin-
istrative corruption, the Committee will be disadvantaged and slowed in
determining what corrective legislation to recommend to Congress.
The attached affidavit of Senator Sam J. Ervin, Jr. , the
Committee Chairman, shows that, in his judgment, the expenses to the
Committee, including the costs of additional staff time for investigation,
public hearings, report writing and legislative recommendation that will be
necessitated if the subpenaed tapes and other materials are not produced will
exceed $10,000, Moreover, the additional costs to the taxpayers and the nation
for the extra time and effort the senatorial members of the Committee and
784
17.
their individual staffs must spend in the event of non- production may well
exceed $10, 000. Such costs afford a settled basis on which to rest a finding
that the jurisdictional amount requirement of 11331 is satisfied. Petroleum
Exploration Co. v. Public Service Comm'n, 304 U. S. 209(1938); Bitterman
V. Louisville & Nashville R. R. , 208 U.S. 205, 224-25 (1907); Federated Mut.
Implement & Hardware Ins. Co. v. Steinherder, 268 F. 2d 734 (8th Cir. 1959).
Surely, in light of the pecuniary damage described in Senator Ervin's affidavit,
it does not appear "to a legal certainty" that plaintiffs have not satisfied this
standard. St. Paul Mercury Indemnity Co. v. Red Cab Co., supra, at 288-89.
(2) The Value of Constitutional Rights and Duties
of the Select Committee and its Members
As shown above, the Select Committee and its members have
constitutional rights and duties to investigate criminality and corruption in
high administrative places and to propose legislation to prevent future rot in
the Presidential elective process. These constitutional rights and duties,
which the present lawsuit seeks to protect and fulfill, are fully capable of
valuation for jurisdictional amount purposes.
That constitutional rights can be valued for jurisdictional amount
purposes was recently reaffirmed by the Court of Appeals for the Third
Circuit in Spock v. David, 469 F. 2d 1047, 1052 (3d Cir. 1972). There the
Gojrt expressly rejected the contention that the "rights of freedom of speech
and assembly are of such a nature as not to be susceptible of valuation in
money". See also Giles v. Harris, 189 U. S. 475, 485 (1902) (Holmes, J.)
(held rights asserted by black voters alleging violations of their voting rights
were, for jurisdictional amount purposes, "capable of estimation in money");
Wiley V. Sinkle, 179 U. S. 58, 65(1900). And, as already noted, where an
important constitutional issue is raised, the practice of federal courts is to
construe the jurisdictional smnount allegations so as to sustain jurisdiction.
785
18.
particularly where to do otherwise would deny a forum for that issue. As
one district judge observed:
"/The/ better and modern view in cases
where the complaint alleges abridgment
of constitutional rights by federal officials
is to give the jurisdictional allegations of
the complciint a broad and liberal interpre-
tation. Where, as here, plaintiffs have
alleged activity which could tend to seriously
inhibit their rights of assembly and petition,
I axn reluctant to conclude, upon a preliminary
motion, that such rights are worth less than
$10, 000 to plaintiffs. Certainly they may be
difficult of evaluation, but' priceless does not
necessarily mean "worthiest. "
Fifth Ave. Peace Parade Committee v.
Hoover, 327 F. Supp. 238, 241-42 (S. D, N,
Y. 1971)
See also West End Neighborhood Corp. v. Stans, 312 F. Supp, 1066, 1068
(D, D, C. 1971); Murray v. Vaughn, 300 F. Supp. 688 (D.R.I. 1969).*^
The value of the constitutional rights and duties here at issue is at
least roughly measurable by reference to the sums appropriated for the
Committee's work. The initial appropriation approved in S. Res. 60 was
$500, 000; subsequently, on June 25, 1973, the Senate unanimously voted an
additional $500, 000 for the Committee's work. 119 Cong. Rec. S11900 (1<973).
This Court has held that the jurisdictional amount requirement is met if
the congressional appropriation for the activity at issue exceeds $10, 000,
Williams V. Phillips, F, Supp. (D. D, C. 1973, C.A. No. 490-73). — '
*/ This approach to the valuation of constitutional rights is consonant with the
purpose of the jurisdictional amount requirement - to keep petty litigation
from burdening the federal courts. See S. Rep. No. 1830, 85th Cong. , 2d
Sess. 4(1958). Cases involving bona fide constitutional rights are hardly petty
or trivial.
In Kennedy v. Sampson, and Holtzman v. Richardson, supra,
p. 13, the district courts found that the value of the constitutional rights and
duties of legislators satisfied the jurisdictional amount requirement.
**/ It is also appropriate to add that the rights and duties here involved are not
the sole property of the Committee and its members. Rather, they belong in
a very real way to the citizenry. The Committee and its members only hold
these rights and responsibilities in trust for the public they represent, and
the public is being grievously injured by the continued uncertainty, divieive-
ness and crisis in confidence that the President's failure to release the
materials subpenaed has produced. While it may be difficult to put this injury
in monetary terms, surely the damage, by any accounting, exceeds $10, 000.
34-966 O - 74 - pt. 1 - 51
786
19.
(3) The Value of this Cause to Defendant President
The value of a favorable determination to a defendant may be
considered in determining whether the jurisdictional axnount requirement is
met. Williams v. Phillips, supra, Tatum v. Laird, supra. Most assuredly,
I
I the worth of a favorable decision to defendant President in this case far ex-
I
j ceeds the sum of $10, 000. The tapes and materials subpenaed, because of
the heightened public interest in them, are quite valuable. The depreciation
in value that would occur if their contents were made public through complianc*
*/
with the Committee's subpenas would exceed $10, 000. We trust, more-
over, that it is not untoward to suggest that the outcome of this litigation means
far more to the defendant President than the depreciation in value of the tapes
and records he now holds. If the accuracy of John Dean's account is sub-
stantiated in all particulars, the continuance of his Presidency may be in
jeopardy and he may be subjected to criminal penalties. In these circumstancejs
the outcome of this case is clearly worth more than $10, 000 to defendant
President. See Williams v. Phillips, supra.
*/ The Supreme Court has held that, in appropriate circumstances, the value
of an object in question in a lawsuit can be used in'deciding whether the
jurisdictional amount is present. Mississippi and Missouri R. Co. v. Ward,
67 U.S. 485 (1852).
787
20.
B. Other Provisions Establish Additional Grounds of Jurisdiction
Over This Suit
As demonstrated, there can be no doubt that 28 U.S. C. S 1331
gives this Court jurisdiction to consider the subject matter of this suit.
Even if § 1331 were not available, however, jurisdiction would be fully
sustainable under the other statutory and constitutional provisions asserted
in the Complaint.
(1) 28 U.S. C. § 1345 and Article III of the Constitution
Under 28 U. S. C. ■ 1345, federal district courts are empowered
to entertain "all civil actions, suits or proceedings commenced by the United
States . . . . " While the right to sue in the name of the United States is
most commonly exercised by the executive, the Houses of Congress share
equal dignity under the Constitution and, as such, they ar« likewise
entitled to bring suit on behalf of the United States under S 1345, where, as
here, the national government is involved and that involvement is peculiarly
the concern of the legislative branch. So much was implicitly suggested by
the Supreme Court in Reed v. Commissioners, 277 U.S. 376 (1927), where a
suit to enforce subpenas brought by a Senate Committee under the predecessoj
to § 1345 was dismissed, but solely on the ground that the Senate had not
delegated to the Committee its power to institute such a suit. As shown
above, this delegational defect was rectified by the adoption of S. Res. 262,
authorizing Senate committees, including the Committee here, to instigate
suit in the performance of their duties in the name of and on behalf of the
788
21.
United States. As a result of this delegation, the plaintiff Committee here
has full authority to sue under S 1345. */
Since the passage of S. Res. 262, Senate committees on several
occasions have resorted to the district courts in aid of their investigatory
functions. In 1956 the Senate Banking Committee, seeking evidence from an
imprisoned former bank president and invoking jurisdiction under § 1345,
successfully applied through its own counsel to a District Court for a writ of
habeas corpus ad testificandum to secure testimony from the prisoner. See
In Re Hearings by the Committee on Banking and Currency. 245 F. 2d 667
(7th Cir. 1957) (prisoner's appeal held moot). The same Committee sub-
sequently obtained an order from the District Court requiring the United
States Attorney to release to it certain bank records compiled by the prisoner
which he had withheld on grounds of grand jury secrecy. In Re Hearings by
the Committee on Banking and Currency, 19 F.R. D. 410 (N. D. 111. 1956).
Moreover, the Committee that appears as plaintiff in this lawsuit in several
instances has successfully applied through its own counsel to this Court for
*/ There is no merit in defendant President's assertion, (Answer, Third
Defense) that authorization by the Senate is insufficient, and that the plaintiff
Committee nriust also receive approval from the House (in the guise of a
statute) before instituting suit under § 1345. Each House of Congress has
traditionally enjoyed independent power to issue and enforce its own process
and punish contempts of its authority (e. g. , McGrain v. Daugherty, 273 U.S.
135 (1927) ), authorize monies to support its investigations (e. g. , S. Res. 60,
93rd Cong., 1st Sess. , authorizing funds for the Select Comnnittee), and
otherwise act independently in exercising its authority and vindicating its
interests. There is thus no warrant to impose the novel requirement of
approval from the other House when the action taken by one House to vindi-
cate its interests takes the form of litigation to enforce a subpena issued
under the authority of that House. This principle was recognized by the
Supreme Court in a state legislative context in Minnesota State Senate v.
Beens, 406 U.S. 187 (1972), which held that a state Senate might participate
in litigation involving federal questions without securing the concurrence of
the House. The same principle applies at the federal level, where the inde-
pendent power of each House to manage its own affairs has been accepted
since the beginning of the nation. See also The Pocket Veto Cases, 279 U. S.
655 (1929) (House committee represented before Supreme Court pursuant to
committee resolution without approval of Senate); United States v. Lovett,
328 U.S. 303(1943) and 89Cong. Rec. 10882 (1943) (House committee
authorized to appoint special counsel to represent United States inCourt of
Claims; no Senate approval); In Re Hearings by the Connmittee on Banking
and Currency, 245 F. 2d 667 (7th Cir. 1957) where the Committee applied to
the courts in connection with its investigation without securing the approval
of the House. Since S. Res. 262 is simply a delegation to the Select Commit-
tee of the independent power that the Senate possesses to enforce its own
process through litigation, the Select Committee has authority to appear here
as the United States.
789
22.
issuance of writs of habeas corpus ad testificandum. ^/ At no time has
the Court's exercise of jurisdiction been questioned by either the Court or
the parties. **/
Indeed, both precedent and principle establish that, even without
§ 1345, the Court would have jurisdiction to entertain this suit under Article
m of the Constitution. Under the equitable principles enunciated by the
Supreme Court- in In re Debs, 158 U.S. 564 (1895), and most recently applied
in New York Times Co. v. United States, 403 U.S. 713 (1971), federal
courts have power under that Article to hear suits brought by the federal
government to protect the public interest "in respect to matters which by
the constitution are entrusted to the care of the Nation. " In re Debs, supra
at 586. A statutory grant of jurisdiction for such cases is not necessary. ***/
*/ See generally Misc. No. 70-73 (D.D.C. 1973).
**/ As these decisions suggest, the Committee's appearance here by its own
counsel is not precluded by 28 U.S.C. § 516, which limits representation of
the United States to the Attorney General and his subordinates. As the
history of that provision and the cases decided under it shows, it is a house-
keeping statute designed to resolve conflicts between governmental agencies
and to regulate the relationship between the Attorney General and the various
United States Attorneys. See, e. g. , FTC v. Guignon, 390 F. 2d 32 3 (8th
Cir. 1968) (FTC enforcement of subpenas); United States v. United States
District Court for the Eastern District of Arkansas, J.2b F. 2d 238 (8th Cir.
1955) (Attorney General's authority to overrule actions of United States
Attorney). Plainly, 28 U.S.C. §516, which is codified together with other
provisions dealing with the internal administration of the Justice Department,
was not intended to deal with representation of the legislative branch. As
shown above, the Houses of Congress have appeared before the judicial
branch by their own counsel and section 516 and its predecessors have not
been construed to bar such representation. Moreover, even if 28 U.S. C.
S 516 were generally applicable to representation of the legislative branch,
it provides for an exception from its requirements in cases "otherwise
provided by law. " S. Res. 2 62 explicitly authorizes a committee to appear
in the name of and on behalf of the United States by its own counsel and, in
view of the independence traditionally exercised by each House of Congress
in protecting its interests, this resolution would qualify as "law" for purposes
of 28 U.S.C, § 516, ajid constitute sufficient authorization for the Commit-
tee's appearance by its own counsel. We also note that, in a matter such as
this where the legislature is taking a position opposed to that of the Presi-
dent, it would be patently inappropriate for the Committee to be represented
by the Attorney General or his subordinates.
*^/ District Judge Gerfein, in his opinion in New York Tintes, noted that
the government was asserting its right "to protect itself in its vital functions"
and stated: "There seems little doubt that the Government may ask a Fed-
eral District Court for injunctive relief even in the absence of a specific
statute authorizing such relief. " United States v. New York Times Co. , 328
F. Supp. 324, 327 (S. C. N. Y. 1971).
790
23.
In the Debs case, the federal government sought to enjoin a
Pullman strike that threatened the national interest in the maintenance of inter
state commerce and transportation of the mails. The Supreme Court held that
the Federal Courts may entertain actions brought by the federal government:
". , , whenever the wrongs complained of are such as affect
the public at large, and are in respect of matters which by
the constitution are entrusted to the care of the Nation, and
concerning which the Nation owes the duty to all the citizens
of securing to them their common rights. ..." 158 U.S. at 568.
Subsequent to Debs, the federal courts have recognized that the government,
without utilizing a specific jurisdictional statute, may sue to protect a variety
of national interests. E. g. , New York Times v. United States, £U££a (consti-
tutional authority of the President to protect military and diplonnatic secrets);
Sanitary District of Chicago v. United States, Bi') r« SJ OSl (19in)(suit to re-
move obstructions to navigable waters); United States v. Arlington Covinty,
326 F. 2d 929 (4th Cir, 19 64) (protection of servicemen, from improper state
taxes); United States v. Brand Jewelers Inc. , 318 F. Supp. 1293 (S. D. N. Y.
1970)(violation of due process rights of impecunious debtors by improper ser-
vice of process); United States v. Brittain, 319 F. Supp. 1058 (N. D. Ala. 1970)
(suit to enjoin enforcement of state miscegeaation laws against military
personnel^^
In the instant case, the Committee is seeking to vindicate the
national interest in the effective discharge of its constitutional responsi-
bilities to investigate executive wrongdoing and consider remedial legislations-
While past cases to enforce vital governmental interests where the
*/This interest is also protected by Congress' power to enforce its own process
(see McGrain v. Daugherty, supra) and by 2 U. S.C. §192, providing for crimintl
punishment for disobeying congressional process. However, as shown in our
initial mennorandum, pp. 5-6, these rennedies are inappropriate and inadequate :
the special circumstance of this case. See further United States Servicemen's
Fund V. Eastland, supra. The Supreme Court has stated that civil relief to vin<
cate a basic governmental inter est_is appropriate where statutory criminal sai
tions'^re inadequate to ensure /its /full effectiveness. " Wyandotte Transp, Co
United States, 389 U.S. 191,202 (1967). See also p. 12, n.**/, supra.
Defendant President appears to agree that a contempt proceeding against hi n
is an inappropriate means to resolve the critical issue of executive privilege
In his Petition for Writ of Mandamus to this Court of Appeals, (p. 5, para, (c)) coh
tends that this Court's ruling in Misc. No. 47-73 should be reviewed by way o
mandamus because to require him '^o refuse^to comply with the order of August
29, 1973 and await further action, /would be^/ unnecessary and would only
delay a resolution of this important and extraordinary case. "
791
24.
courts have recognized that a specific jurisdictional statute is not required
have involved actions brought by the executive brancl% their underlying
principle fully sustains a like power allowing the Houses of Congress
to sue to vindicate governmental interests which are, as here, the special
concern of the legislative branch. The legislative branch is equal in
constitutional dignity to the executive branch, and has equal right to invcke
the Article III jurisdiction of the Federal Courts to promote and protect
basic governmental interest.
(2) 28 U.S.C. § 1361
Under 28 U.S.C. § 1361, the federal district courts are invested
with jurisdiction over "any action in the nature of mandamus to compel an
officer ... of the United States ... to perform a duty owed to the plain-
tiff. " The defendant President apparently concedes, as he must, that § 1361
affords an independent basis of subject matter jurisdiction. ±/ He contends,
however, that the asserted duty involved here -- the duty of defendant Presi-
dent to respond to evidentiary subpenas --is not the sort of duty that "affords
mandamus jurisdiction within the meaning of 28 U.S.C. § 1361. " (Answer,
Third Defense) But this contention is groundless and has already been rejected
in substance by this Court's decision in the Special Prosecutor's case, as
now explained.
The existence of jurisdiction under i 1361 depends on the nature
of the duty which the defendant official assertedly owes the plaintiff. This
section is applicable if the asserted duty is "ministerial" in character, and
not "discretionary. " E.g., Roberts, Treasurer v. United States, 176 U.S.
221, 231 (1900); Kendall v. United States ex rel. jitokes, 37 U.S. (12 Peters)
834, 839 (1838). This Court has already held that the duty of
*See National Association of Governnnent Employees v. White, 13 5 U.S.
App. D. C. 290, 418 F. 2d 1126 (1969); Richardson v. United States, 465 F.
2d 844, 849-51 (3d Cir. 1972). Section 1361 represents a statutory codifica-
tion and extension to all federal district courts of the connmon law power
long enjoyed by this Court to issue mandatory relief against government
officials. See Kendall v. United States ex rel. Stokes, 37 U.S. (12 Peters)
524 (1838); Byse and Fiocca, Section 1361 of the Mandamus and Venue Act
of 1962, and Judicial Review of Federal Administrative Action, 81 Harv. L.
Rev. 308(1967). Seefurther, Marbury v. Madison, 5 U. S. (1 Cranch ) 137 (18031
792
25.
defendant President to respond to a lavful evidentiary subpena is not
"discretionary" but "ministerial";
"Discretionary duties and acts are not in issue here. The
grand jury does not ask that the Court command or forbid the
performance of any discretionary functions. The questions
here concern the obligations of the President to provide
evidence, something more akin to a ministerial duty if in-
deed it concerns official duties at all. " In re Grand Jury
Subpoena Duces Tecum Issued to Richard M. Nixon, Op. at
10, jx. 21.
While the Court's ruling was in the context of a grand jury subpena,
the duty to respond to evidentiary subpenas is not altered where the subpena
in question is issued by the legislature. As the Supreme Court pointed out
in United States v. Bryan, 339 U.S. 323, 331-32 (1950), the principle that
"the public ... is entitled to every man's evidence" is just as applicable
to legislative inquiries as to judicial proceedings. Moreover, " / i /t is
unquestionably the duty of all citizens to cooperate with Congress in its
efforts to obtain the facts needed for intelligent legislative action. It is their
unremitting obligation to respond to /_congressional/ subpenas." Watkins v.
United States, 354 U.S. 178, 187 (1957). /Emphasis suppliedT/*/
Because the defendant President owes a legal duty to plaintiffs
that is "ministerial" in character, the instant case is appropriate for the
mandamus remedy and subject matter jurisdiction exists under 28 U.S. C.
1 1361. **/
*/ The defendant President has asserted a privilege to disobey both grand
jury and legislative subpenas, but this assertion raises a question concerning
the merits rather than the Court's jurisdiction to resolve the issue. Where
the complaint alleges a non-frivolous claim of official duty, the Court should
take jurisdiction under i 1361 and then determine whether the duty asserted is
indeed owed to plaintiffs. Cf. Richardson v. United States, 465 F. 2d 844,
850 (3dCir. 1972).
**/ In addition, sl361 jurisdiction vests here under the established principle
that wterea federal officer violates the constitutional rights of a party, that
party may bring a civil action under Il36l asserting the failure of the officer
to fulfill a duty oved to that party. Cf. Natl. Assn. of Government Workers v.
White, 135 U.S. App. D. C. 290, 293, 418 F. 2d 1126, 1129 (1969); Kauffman v.
Secretary of the Air Force, 135 U.S. App. D. C. 1, 4-5, 415 F. 2d 991, 994
(19W), cert, denied, 396 U. S. 1013 (1970). Here, as shown above, the
Committee and its members have the constitutional right to investigate execu-
tive wongdoing and consider remedial legislation, and, in that connection, to
issue evidentiary subpenas. See McGrain v. Daugherty, 273 U.S. 135 (1927).
The asserted violation of this right by the President--whose duty to respect
these rights is embodied in the constitutional admonition that he "take Care
that the Law be faithfully executed, "(U. S. Const., Art. U, sec. 3) --
furnishes an additional reason for jurisdiction under 51361. (fn. continued)
793
26.
(3) The Administrative Procedure Act
Jurisdiction is also afforded by the provisions of the Administra-
tive Procedure Act (APA) providing for judicial review of administrative
action, 5 U.S.C. i§ 701-706. The defendant President challenges APA
jurisdiction on the ground that plaintiffs "have not suffered any legal wrong
nor . . . been adversely aifected or aggrieved as the result of any agency
action. " (Answer, Third Defense). This contention is erroneous.
First, the President is an "agency" for purposes of the APA. This
Court so held in Amalgamated Meat Cutters v. Conally, 337 F. Supp. 737,
761 (D. D. C. 1971) (three judge court) and we know of no authority to the
contrary. As stated by Judge Leventhal in his opinion for the Court, the APA
explicitly defines "Agency" for purposes of its jurisdictional provisions as
"each authority of the Government of the United States, whether or not it is
within or subject to review by another agency, " and specifically excludes
from this definition the Congress, the federal courts, "the government of the
territories or possession of the United States, " "the government of the
District of Columbia, " and other bodies. The President is not excluded from
the "agency" definition. The statutory "care taken to make express exclusion
of 'Congress and the courts' " persuaded the Court in Amalgamated that in-
clusion of the President was intended in the sweeping definition of "agency. "*,
See also Soucie v. David, 145 U.S. App. D. C. 174, 448 F. 2d 1067 (1971).
The basic premise of the Amalgamated Meat Cutters decision
that the President's actions are subject to judicial review just like the actions
(continued from preceeding page)
The fact that plaintiffs at this juncture seek only declaratory relief does
not preclude the Court's exercise of §1361 jurisdiction. Jurisdiction is estab-
lished by a well-pleaded assertion of the defendant President's duty to plain-
tiffs. Once such a colorable claim for jurisdiction under §1361 has been made
the Court has flexibility in granting relief, and may in appropriate circum-
stances issue only a declaratory judgment. See Burnett v. Tolson, 474 F. 2c
877, 883 (4th Cir. , 1973); 3 Davis, Admin. Law Treatise §23. 09; Byse and
Fiocca, supra at 319. Cf. Miguel v. McCarl, 291 U.S. 442 (1934); Houston v.
Ormes, 253 U.S. 469 (1920); Richardson v. United States, 465 F. 2d at
855.
^/ The Court in Amalgamated Meat Cutters also relied on the conclusion of
leading commentators that the President is an "agency" for purposes of the
APA, citing Davis, Administrative ArMtrariness : A Postscript, 114 U. of Pa
L. Rev. 823, 832 (1966); Jaffee, The Right to Judicial Review, 71 Harv. L.
Rev. 401, 769, 778, 781 (1958); Berger, Administrative Arbitrariness: A
Synthesis. 78 Yale L. J. 965, 997 (1969).
794
27.
of subordinate executive officials. This premise was strongly reinforced by
this Court's decision in the Special Prosecutor's case, which held that the
White House is not a "fourth branch of government" (Op. p. 10) and that
presidential action is subject to judicial review.
Moreover, the Committee and its members fully satisfy the starring
requirements of Section 702 of the APA, which provides that "/_a_/ person
sviffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled
to judicial review thereof. " Traditionally, a plaintiff has had to show that
the defendant has violated plaintiff's asserted "legal right" in order to satisfy
this provision. See Jeiffee, Judicial Review of Administrative Actioa p. 528and
cases discussed therein. Plaintiffs here have a legal right to issue subpenas
and secure their enforcement. See, e. g. , McGrain v. Daugherty, supra,
(1927); Watkins v. United States, supra, (193 5); In Re Hearings by the Committee
on Banking and Currency, supra, (19 F. R. D. at 410. ) Since the plaintiffs
assert that defendant President's refusal to obey their subpenas is unlawful,,
and that their legal rights have therefore been violated, the requirements of
*/
■ 702 are fully met. ~
*/We note in passing that clearly the Committee and its members could
establish standing within the meaning of section 702 under the more modern
and less restrictive injury in fact standard. The plaintiffs have suffered "an
injury to a cognizable interest" -- their constitutional investigatory and legis-
lative rights-- and "the interest sought to be protected is arguably within the
zone of interests to be protected or regulated by the statute or constitutional
guarantee in question". Association of Data Processing v. Camp, 397 U. S.
150, 153.(1970); See Sierra Club v. Mortoii. 405 U. S. 728, 734-35(1972).
795
28.
CONCLUSION
As observed at the beginning of this memorandum, many of the
basic issues in this case were, in substance, decided in plaintiffs' favor by
this Court's decision in the Special Prosecutor's case. This memorandum
has therefore dealt mainly with the technical and jurisdictional objections
the defendant President has raised to avoid an adverse decision on the merits
We have shown that these objections are unfounded. The Committee has
full power to investigate criminality in the executive realm, to issue subpenas
to all executive officials and to sue to enforce its process. This Court has
several secure jurisdictional bases that permit it to hear this suit. Plaintiffs
motion for s\rmmary judgement should be granted
ully submitted,
Samuel Dash
Chief Counsel
Fred D, Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B, Stewart
Special Counsel
Donald S, Burris
Assistant Counsel
Sherman Cohn
Eugene Gressman ,
Jerome A, Barron
Washington, D, C,
of Counsel
Arthur S, MUler
Chief Consultant to
the Select Committee
of Couns el
William T. Mayton
Assistant Counsel
Ronald D. Rotunda
Assistant Counsel
United States Senate
Washington, D. C. 20510
Telephone Number 225-0531
Attorneys for Plaintiffs
796
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGfN ACTIVITIES, et al.
Plaintiffs
v..
RICHARD M. NIXON, individually and as
President of the United States
Defendant
AFFIDAVIT OF SENATOR SAM J. ERVIN. JR.
Civil Action
No. 1593-73
Sam J. Ervin, Jr., being duly sworn, deposes and says:
(1) I am a member of the United States Senate and the Chairman
of the Senate Select Canmittee on Presidential Campaign Activities. I
make this affidavit in support of plaintiffs' claims in the above-captioned
action that the Jurisdictional amount requirements of 28 U.S.C. § 1331 are
fully met.
(2) The defendant Richard M. Nixon, President of the United States,
has refused to honor two subpenas duces tecum submitted to him by the Select
Ccmmittee that call for the production of evidence vital to the exercise of
the Coumdttee's functions. The two siibpenas seek certain tape recordings
of conversations between the President and John Wesley Dean, III, and certain
other materials and records, an of which relate to alleged criminal activi-
ties in connection with the Presidential campaign and election of 1972.
(3) As hereinafter explained, the out-of-pocket expenses to the
Select Committee that will result from defendant President's failure to
produce the materials subpenaed will exceed $10,000, exclusive of interest
and costs. Moreover, as also explained, this failure to produce will impose
797
Page 2
additional costs on the public and taxpayers that will, standing alone,
exceed $10,000, exclusive of interests and costs.
(U) If the siibpenaed materieLLs eire not produced, the staff of the
CoDimittee, in order to meet its investigatory responsibilities, must attempt
by other, more difficult means to reconstruct their contents. This task
will demand extensive further investigation and interrogations. The
defendant President's failure to produce also may well result in prolonging
the public hearings because the best, most succinct evidence will not be
available for presentation.
(5) If the five tape recordings of Deaji- Presidential meetings are
not made available, it will be necessary to interrogate others who may have
beard these tapes to determine what they remember as to their contents.
In pviblic testimony, the Camnittee has established that at least one sub-
ordinate of the President (H. R. g^ldeman) has listened to several of these
tapes. Similarly, if the other materials and records called for are not
produced, it will be necessary to interrogate numerous individuals who either
(1) have had access to them and thus have knowledge of their contents, or
(2) may have knowledge otherwise acquired of the alleged criminal activities
to which the subpenaed materials and records relate. It will also be
necessary to serve additional siibpenas upon these individuals and to examine
the records thereby produced.
(6) Certain of the materials and records subpenaed relate to
alleged criminal activities in the areas of political espionage and
sabotage and campaign financing, which are now heavily under investigation
by the Committee's staff and about which full hearings are yet to be had.
For example, among the materials covered by the subpenas are certain
documents relating to the handling of the ITT affair, the existence of
which is referred to in evidence alreeidy presented to the Ccamnittee. Pro-
duction of these and other documents siibpenaed could greatly reduce investi-
gatory time and effort and also diminish the n\3mber of days reqiiired for
p\jblic hearings on espionage, sabotage and campaign contributions.
(7) The failure to produce the materials subpenaed will necessitate
considecable additional staff time and effort in fulfilling the Cojmnittee's
report writing and legislation reccmmending functions. The Committee, under
798
Page 3
S. Ree. 60, has been charged vlth the responsibility to inform the public
of the full extent of criminality and corruption in high executive places
during the course of the 1972 Presidential campaign and election. The
staff's task in recommending conclusions to the Committee in this regard
vlll be much more burdensome and time consuming if the materials subpenaed
are not produced. For example, with the Dean-Presidential tapes In hand,
it would be much easier to determine the extent of Presidential involvement
in the Watergate affair. Moreover, without a full awareness of the nature
of the criminal conduct in the 1972 Presidential campaign ajid election tuid
the identities of those that participated in it, the staff will be handi-
capped and slowed in formulating legislative recommendations to submit to
the Committee.
(8) The Select Committee has been appropriated $1,000,000 for its
operations. The cost of recording and printing a single day's hearings is
approximately $700. Staff salaries per day amount to approximately $4,500.
It should be noted that the staff of the Committee is essentially employed
on a temporary basis and that staff members will only be retained as long
as their services are required. Travel and per diem costs for staff and
witnesses are substantial and depend on the extent of investigation and
public hearings req\ilred. Thus, if only several extra days of full staff
time are spent in investigation, public hearings, report writing and
legislative recommendations, the additional out-of-pocket costs to the
Committee will exceed $10,000. While it Is not possible to estimate extra
staff costs with complete precision, it is my best Judgment that the
increased staff costs necessitated by non-production of the subpenaed
materials will. In fact, exceed $10,000.
(9) Additionally, if the subpenaed materials are not made available,
the members of the Committee and their staffs working on Watergate
matters will have to spend many additional hours in investigatory activities,
public hearings, writing reports and recommending legislation.
799
Page h
The costs of this extra time and effort to the public aiid the taxpayers,
standing alone, may well exceed the sum of $10,000.
Sam J. Ervln, Jr.
United States Senator
Subscribed and sworn to before me,
this fy'^ day of September, 1973-
Notary Public, D.C.
My Commission expires
'1
800
The New Republic, June 23, 1973
Hands Off the Investigation
by Felix Frankfurter
In May 1924, when he wrote the following article for
The New Republic Felix FrankfuTtrr was a professor
of law at Haroard. Senators Thomas VJalsh and Burton
K. Wheeler, both Democrats, were conducting hearings
on bribery and other forms of illegal activity in the admin-
istration of President Harding, who had died just as the,
scandal was breaking, and been succeeded by his Vice
President, Cxilvin Coolidge. The generic name for the
Harding administration scandals came to be Teapot Dome,
although a number of not necessarily connected scandals
were actually involved. Sinclair and Doheny were oil
men who were charged xoith obtaining leases on public
lands through bribery. Harry Daugherty had been Hard-
trig's attorney general and was also charged tmth corrup-
tion. Criminal prosecutions were in the offing as these
Senate hearings were being conducted. —The Editors
So grave were the first disclosures made by the Walsh
and Wheeler investigations that the immediate
response of the country was profound humiliation.
Oi\ly the recently disavowed organ of the Republican
National Committee ventured brazeidy to attack the
exposers and minimize the expKJSiire. But, as the effect
of the impact of these disclosures wore oH, partly be-
cause of the very extent of the revelations, public
preoccupation with private v^rorries and bewilder-
ment over the variety of comphcated issues were ex-
ploited by various powerful forces, from a variety of
motives ranging from the lowest to moral confusion,
all with a view to discrediting investigation and arrest-
ing its further progress. The gathering forces against
the investigations and the investigators reached their
culminating reirtforcement in the support of a Presi-
dent who, while professing a desire to vindicate the
law, assumes that law and order are bounded by the
Penal Code, and helped to create an atmosphere in
which necessary investigation could not thrive.
Emboldened by the successful offensive against
the pending investigations in Washington, various
suggestions are afloat with a view to curbing future
Walsh and Wheeler investigations. Professing, xji
course, that wrong-doing, impropriety and unwhole-
801
16
some standards in public life ^nould be exposed,
critics, who have nothing to say for the astounding
corruption and corrupting soil that have been brought
to light, seek to divert attention and shackle the future
by suggesting restrictions in the procedure of future
congressioniil investigations. ^
J\ proper judgment of the Walsh and Wheeler in-
vestigations involves a consideration of 1) the situa-
tion which confronted them, 2) their accomplishments,
3) their alleged abuses. OiJy-after such consideration
Ciin we properly assess 4) the pertinence of any formal
change in the procedure of congressional investigation.
1) Situation confronting Walsh and Wheeler. When
the Harding administration began — in fact preceding
it — the air was h+D of indicatiorxs of the sinister in-
fluences that were to prevail and were prevailing in
the conduct of some of the vital departments of the
goverrunent Around Fall and Daugherty suspicions
steadily clustered. Washington was thick vifith talk,
and not the talk of irresponsibles. As time went on
the intiinations~became more and more outspokeri;
but every influence of authority, of powerful social
cormections, of the press, the whole milieu of of-
ficialdom in Washington was on the side of those in
power and against disclosure and truth-telling. More
than that, when things could no longer be stemmed
and an investigation of Daugherty's admirustration
was entered upon by a House Committee, the forces
of wrong-doing rendered such an investigation abor-
tive and futile, and thereby served to discredit further
accusations and their investigation.
For nearly two years the efforts to uncover wrong-
doing in the disposal of our public domain were
hampered by every conceivable obstruction on the
part of those in office and those influentitil out of
office; involving members of the President's official
entourage, and including perjury before a Senate
committee on the part of one of the closest friends of
the late President and one on dose terms with the
present Executive. The vast investigatorial agencies
of the government not only failed to cooperate with
the efforts to unearth wrong-doing; they positively
sought to frustrate congressional activity.
Govenunental machinery, prestige, wealth, agen-
cies of publicity — 2J1 were for covering up things.
No one who has not had some experience of the power
the goverrunent can exert is able to realize the tre-
mendous pressure against which Walsh and Wheeler
were contending. Both the hostile resources and the
inertia that they had to overcome were incredible. The
odds that they thus encountered must be felt and not
inertly intellectually admitted and lightly dismissed.
2) Accomplishments of Walsh and Wheeler. These are
beycmd question: the bills filed by the goverrunent
against the Sindadr and Doheny leases are based upon
the findings of the Walsh committee, namely, cor-
ruption and conspiracy rendered possible through
The New Rkpc ^
Secretary Fall's jrruption and Secretary Oenby's
guileless incompetence; the disgrace of, and pending
grand jury inquiry into, a recent member of the Cab-
inet — Fall; the resignation of another member through
incompetence — Denby; the dismissal of a third mem-
ber—the attorney general — because of an enveloping,
malodorous atmosphere. ' ■ '
It is safe to say that never in the history of this
country have congressionM investigations had to con- '
tend 'with such powerfiil odds, never have they so
quickly revealed wrong-doing, incompetence and
low public standards on such a wide scale, 2md never
have such investigations resulted so effectively in
compelling correction through the dismissal of derelict
offidals. All this, it must be remembered again and
again, was done by Congress against obstructing ex-
ecutive departments and, to put it mildly, unassisted
by a President, who, urUike Roosevelt, is not a crusader
against wrong-doing.
3) Alleged Abuses. One would like to have a biH of
particulars of these alleged abuses. Objection is fre-
quently taken against irrelevant, unfair and ur\sul>-
stantial charges and to the character of some of the
witnesses. It is not easy to be patient with such an
attitude. What were the irrelevcmt charges before the
Walsh committee, and what were the improprieties
in pursuing those charges? Certainly Senator Walsh
has estabbshed all the charges surrounding the oil
leases up to the hilt. Objections are made to the testi-
mony centering around alleged pre-nomination and
pre-election affairs in 1920. Surely it was relevant to
ascertain whether interests were on the lookout to
put into the Dep^^rtment of the Interior a man who,
honestly or dishonestly, held one attitude rather than
another toward our natural resources. Necessarily
much of this was hearsay and gossip. Nevertheless
there emerged definitely the fact that [Jake] Hamon
[multimilbonaire from Oklahoma] spent a huge sum
of money for campaign purposes. If these aren't "leads"
properly to be pursued, then we had better frankly
adnut that the power of congressional investigation
is a sham, and not an effective instrument for ventilat-
ing issues.
What are the specific objections to be made against
the hearings conduded by Senator Wheeler? Of course
the chararter of the witnesses in many instances was
disreputable. It is of the essence oif the whole Daugherty
aHair that the attorney general of the United States
wcis involved in questionable association with dis-
reputable chju^rters. It is naively suggested as to
these individuals, that "they are not comf>etent wit-
nesses. But they are exhibits." It is difficult, at best,
to get witnesses to talk. This critidsm is fanuliar to
everyone who has ever had anything to do with crim-
inal prosecutions, namely, an attempt to divert at-
tention from the miscondurt of the defendant to the
character of the witnesses against him. Of course the
chararter of a witness is a relevant item. If ty the
34-966 O - 74 - pt. 1 - 52
802
fv\ ^. 1973
'Vitnesses that Senator Wheeler j. Juced he was able
to furnish a "living demonstration of the atmosphere
which prevailed in and around the Attorney General
of the United States," how possibly could that con-
clusion have been demonstrated except in the way in
which Senator Wheeler demonstrated it? Eminent
lawyers might have done it a little differently — but
the chances are very strong that fhey wouldn't have
done it at all. It requires pertinacity and high indif-
ference to the winds that blow to drive through the
obstacles that faced Seriator Wheeler. The performance
of such a man in such a situation cannot be finely
weighed, by a distant onlooker after the event, on an
apothecary's scale.-
4) Revision of Procedure of Congressional Investiga-
tions. Nothing in the experience of the Walsh and
Wheeler investigations reve«ds the need of changing
the process or confining the limits of congressional
investigations. The proper scope and methods of
procedure appropriate to congressional investigations
depend on the conception of the part they play in
enabling Congress to discharge its basic duties. This
has been nowhere better expressed than by Woodrow
Wilson in his Congressional Government:
It is the proper duty of a representative body to look
diligently into every affair of government and to talk
mucfi about what it sees. It is meant to be the eyes and
the voice, and to embody the wisdom and will of its
constituents. Unless Congress have and use every means
of acquainting itself with the acts and the disposition
of the administrative agents of the government, the coun-
try must be helpless to leam how it is being served, and
unless Congress both scrutinize these things and sift
them by every form of discussion, the country must re-
main in embarrassing, crippling ignorance of the very
affairs which it is most important that it should under-
stand and direct. The informing function of Congress
should be preferred even to its legislative function.
Undoubtedly the names of people who have done
nothing criminal or wrong, or nothing even offend-
ing taste perhaps, haveTjeen mentioned in connection
with these investigations. The question is not whether
people's feelings here £ind there may be hurt, or names
"dragged through the mud," as it is called. The real
issue is whether the danger of abuses and the actual
harm done dse so clear and substantial that the grave
risks of fettering free congressional inquiry are to be
incurred by artificial and technical limitations upon
inquiry. Any quantitative and qualitative judgment
of what Walsh and Wheeler were up against, what
they produced and how they produced it, leaves the
experienced and disinterested mind, duly regardful
of the investigating duties of Congress, wholly with-
out justification for changing congressional procedure.
It must be remembered that our rules of evidence
are but toob for ascertairung the truth, and that these
tools vary with the nature of the issues and the nature
oi die tribunal seeking iacts. Specifically the system
17
of rules of evidt used in trials before juries "are
mainly aimed at guarding the jury from the over-
weening effect of certain kinds of Evidence. " That
system, as pointed out by Wigmore, "is not applicable
by historical precedent, or by sound practical policy"
to "inquiries of fact determinable by administrative
tribunals." Still less is it applicable to inquiries by
congression£j committees.
It must be remembered that in various fields there
is no legfd protection against harm due to unfettered
speech. The only safeguards are those secured by
social and moral pressure. Thus the inrununities en-
joyed by judges and legislators for anything said-by
them as judges and as legislators are founded on deep
experience. So also the abuses of the printing press
are not sought to be corrected by legal restriction or
censorship in advance because the remedy is worse
than the disease. For the same reason congressional
inquiry ought not to be fettered by advance rigidities,
because in the light of experience there can be no
reasonable doubt that such curtailment would make
effective investigation almost impossible.
Chir criminal procedure has been constantly under
fire by the legal profession, from Chief Justice Taft
dowrn, because of its self-defeating technicalities. In
a report to the American Bar Association, vigorous
demand has recently been made for the liberalization
of rules of evidence and procedure in criminal cases.
Tiiken in coiuiection with the proposal to ciarb the
investigating powers of Congress, what is urged, in
effect, is that ^^ abandon the technical limitations
that have been established to protect men from being
sent to jail too readily, but intioduce them into a
field where they have never been resorted to «ind
where they are wholly out of place, namely, in the
exercise of the informing function of Congress.
A good deal must be left to the standards that Con-
gress imposes upon itself and its committees; a good
deal must be left to the duty of newspapers to report
fairly and not sensationally, and to interpret wisely;
a good deal must be left to the good sense of people.
In conclusion there is no substantia] basis for crit-
icism of the investigations conducted by Senator Walsh
and Senator Wheeler. Whatever inconveniences may
have resulted are inseparable incidents of an essential
exertion of governmental power, and to talk about
these incidents is to deflect attention from wrong-do-
ing and its sources.
The procedure of congressional investigation should
remain as it is. No limitations should be imposed by
congressional legislation or standing rules. The power
of investigation should be left untiammelled, and the
methods and forms of each investigation should be
left for determination of Congress and its committees
as each situation arises. The safeguards agaiiut abuse
and folly are to be looked for in the forces of respon-
sibility that are operating from within Congress, and
are generated from without. i
803
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
name and in the name of the UNITED
STATES , "
and
SAM J. ERVIN, JR.; HOWARD H. BAKER, JR. ;
HERMAN E. TALMADGE; DANIEL K. INOUYE;
JOSEPH M. MONTOYA; EDWARD J. GURNEY ;
cuid LOWELL S. WEICKER, JR. , as United
States Senators who are members of
the Senate Select Committee on
Presidential Campaign Activities
Plaintiffs
V.
RICHARD M. NIXON, individually and as
President of the United States
Defendant
Civil Action No. 1593-73
BRIEF OF RICHARD M. NIXON
IN OPPOSITION TO PLAINTIFFS' MOTION
FOR SUMMARY JUDGMENT
LEONARD GARMENT
J. FRED BUZHARDT
CHARLES ALAN WRIGHT
DOUGLAS M, PARKER
ROBERT T. ANDREWS
THOMAS P. MARINIS, JR.
Of Coxinsel
RICHARD A. HAUSER
K. GREGORY HAYNES
PAUL S. TRIBLE, JR.
GEORGE P. WILLIAMS
Attorneys for the President
The White House
Washington, D.C.
Telephone Number :
20500
456-1414
804
Table of Contents
I . Introductory Statement 2
II. Jurisdiction Is A Threshold Question 7
III. This Matter Does Not Present a Justiciable
Case or Controversy Within the Meaning of
Article III, § 2 , of the Constitution 10
IV. This Case Does Not Come Within Any Statutory
Grant of Subject-Matter Jurisdiction 21
A. 28 U.S.C. § 1331 22
*B. 28 U.S.C. § 1345 27
C. 28 U.S.C. § 1361 30
D. 5 U.S.C. § 701 32
V. This Court Lacks In Personam Jurisdiction 35
VI. Plaintiffs Have Exceeded Their Legislative
Authority Under Both the Constitution and
Their Enabling Resolution 37
A. Constitutional Limits 37
B. The Enabling Resolution 45
VII . The President Has the Power to Withhold Infor-
mation From Congress the Disclosure of Which
He Determines to be Contrary to the Public
Interest 49
A. Basis for Executive Privilege 50
B. The Need for Confidentiality 60
VIII . Conclusion 69
805
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
name and in the name of the UNITED
STATES ,
and
SAM J. ERVIN, JR.; HOWARD H. BAKER, JR. ;
HERMAN E. TALMADGE; DANIEL K. INOUYE;
JOSEPH M. MONTOYA; EDWARD J. GURNEY;
and LOWELL P. WEICKER, JR., as United
States Senators who are members of
the Senate Select Committee on
Presidential Campaign Activities
Plaintiffs
RICHARD M. NIXON, individually and as
President of the United States
Defendant
Civil Action No. 1593-73
BRIEF OF RICHARD M. NIXON
IN OPPOSITION TO PLAINTIFFS' MOTION
FOR SUMMARY JXTOGMENT
This matter is before the Court on plaintiffs' Motion
for Summary Judgment. As pointed out previously in the
President's Motion for an Enlargement of Time to Respond,
this Motion for Summary Judgment was filed within hours
after the filing of the President's Answer to plaintiffs'
Complaint and apparently without regard to certain of the
allegations in that Answer upon which the plaintiffs have
the burden. Subsequently, plaintiffs responded with a
Supplemental Memorandvim addressing these allegations. As
a result, the matter is now ripe for adjudication. This
Brief will deal with all the issues raised by the pleadings
euid by the plaintiffs in the order that we feel will be most
helpful to the Court for resolution of this vinprecedented
and important matter.
80G
I. Introductory Statement
By their Motion for Summary Judgment, plaintiffs
ask this Court to enter an order in the nature of a
declaratory judgment pursuant to 28 U.S.C. S 2201
that two subpoenas duces tecum issued and served on
the President must be complied with by him, not-
withstanding the fact that the President has interposed
a claim of privilege as to the materials covered by
the subpoenas.
At the outset we should point out that the
President does not question the right and duty of the
Congress to conduct investigations and he does not
seek to thwart the investigation of the Senate Select
Committee by refusing to comply with the svibpoenas in
question. Nor does he object to the legitimate aspects
of this particular investigation. In his letter to
tiie Chairman of the Committee on July 6, 1973, the
President stated that he respected the responsibilities
of the Committee and indicated that he was willing to
cooperate with it within the bounds of the Constitutional
rights and powers of the Presidency. There has in fact
been considerable cooperation on behalf of the President
in the Committee's investigation. All of this coopera-
tion, however, has been voluntary and it is the view
of the President that it should remain voluntary if our
Constitutional traditions are to remain intact and
inviolate.
This tradition has been well-described by Professor
Corwin in his detailed analysis of the office of the
Presidency.
1 See Part VI below.
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807
In the many years that have rolled by since
Jefferson's presidency there have been many
hundreds of congressional investigations. But
I know of no instance in which a head of a
department has testified before a congressional
committee in response to a subpoena or held
in contempt for refusal to testify. All
appearances by these high officials seem to
have been voluntary.
Corwin, The President; Office emd Powers 1787-1957
113 (4th rev. ed. 1957) . He restates his view at page 116.
In short, no one questions, or can question, the
constitutional right of the houses to inform
themselves through committees of inquiry on
subjects that fall within their legislative
competence and to hold in contempt recalcitrant
witnesses before such committees, and undoubtedly
the question of employee loyalty is such a sub-
ject. On the other hand, this prerogative of
Congress has always been regarded as limited
by the right of the President to have his subor-
dinates refuse to testify either in court or
before a committee of Congress concerning matters
of confidence between them and himself. Are,
then, communications to the President or to
officials authorized by him to receive them
concerning the loyalty of federal executive
personnel such matters of confidence? The
question must undoubtedly be answered in the
affirmative.
The Committee violated this time-honored tradition
vrtien it issued the subpoenas in the face of the President's
full explanation on July 23, 1973, of the reasons why he
had determined that it would not be in the public interest
to disclose the information that the Committee had re-
quested.
Now the Committee urges this Court to violate 2mother
time-honored Constitutional tradition — that is, to hold
that the President can be subjected to compulsory process
by the Judiciary. Again, Professor Corwin 's comments are
appropriate. Subsequent to his discussion of Mar bury v.
Madison, 1 Cranch (5 U.S.) 137 (1803), he states:
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808
In addition to his duty to the laws, a supplemental
basis of the President's power to do this is the
principle of his own immunity to judicial process.
Id. at 112. Corwin is referring to Attorney General
Lincoln's objecting to answering certain questions,
the answers to which would have involved disclosure
of confidential information.
Despite the importance of these two grave issues,
and despite the respective rights of the parties, this
Court must first determine whether a civil action for
declaratory judgment is the proper method for their
resolution and whether the plaintiffs are properly in
Court. By our submission, they are not.
Plaintiffs seek to invoke the jurisdiction of the
Court by way of the Declaratory Judgment Act, 28 U.S.C.
SS 2201, 2202. Before dealing with the specifics as to
why they cannot make use of that Act, a few comments on
i'ts history may be helpful to the Court. Article III, § 2,
of the Constitution allows a federal court to act only in
cases and controversies. Prior to 1933, the Supreme Court
had grave doubts about whether an action for a declaratory
judgment was a "case or controversy" within the juris-
diction of the federal courts. See, e.g. Liberty
Warehouse Co. v. Grannis, 273 U.S. 73 (1927); Willing
V. Chicago Auditorium Association, 277 U.S. 274 (1928) .
In 1933, the Supreme Court resolved its doubts. Nashville, C.
& St. L. Ry. Co. V. Wallace, 288 U.S. 249 (1933) . This
was followed immediately in 1934 by the adoption of the
Declaratory Judgment Act, now 28 U.S.C. §§ 2201, 2202.
- 4 -
809
There are three things of importance to note with
regard to the Act. First, and of critical importance
in this matter, is that the Act and Civil Rule 57, which
sets forth the procedures for its operation, are not
jurisdictional. They are procedural only, Aetna Life
Insurance Co. of Haurtford, Connecticut v. Haworth ,
300 U.S. 227, 240 (1937), and do not constitute an
enlargement of the jurisdiction of the federal courts.
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,
671 (1950) . Thus there must be an independent basis
for jurisdiction, under statutes equally applicable
to actions for coercive relief, before a federal court
may entertain a declaratory judgment action. See, e.g..
Continental Bemk and Trust Co. v. Martin, 303 F.2d
214 (D.C.Cir. 1962) .
Second, it must be established that there is an
"actual controversy" of a justiciable nature as both
the Constitution and the statute require. The classic
statement of the Constitutional and statutory requirement
in this respect is by Chief Justice Hughes in Aetna Life
Insurance Company of Hartford ^ Connecticut v. Haworth.
A "controversy" in this sense must be one that
is appropriate for judicial determination. * * *
A justiciable controversy is thus distinguished
from a difference or dispute of a hypothetical
or abstract character; from one that is academic
or moot. * * * The controversy must be definite
and concrete, touching the legal relations of
parties having adverse legal interests. * * *
It must be a real and substantial controversy
admitting of specific relief through a decree
of a conclusive character, as distinguished
from an opinion advising what the law would be
upon a hypothetical state of facts. * * *
Where there is such a concrete case admitting
of an immediate and definitive determination
of the legal rights of the parties in an
adversary proceeding upon the facts alleged,
the judicial function may be appropriately
exercised although the adjudication of the
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810
rights of the litigants may not require the
award of process or the payment of damages.
* * * And as it is not essential to the exer-
cise of the judicial power that an injunction
be sought, allegations that irreparable injury
is threatened are not required.
300 U.S. at 240-241. Although the massive generalities
of the Aetna case are quoted and requoted in later decisions,
they are something less than a sure guide to decision.
"The considerations, while catholic, are not concrete."
McCahill v. Borough of Fox Chapel, 438 F.2d 213, 215
(3rd Cir. 1971) . A better perception was stated for
the Court by Justice Murphy in a later case.
The difference between an abstract question
and a "controversy" contemplated by the
Declaratory Judgment Act is necessarily one
of degree, and it would be difficult, if
it would be possible, to fashion a precise
test for determining in every case whether
there is such a controversy. Basically,
the question in each case is whether the
facts alleged, under all the circumstances,
show that there is a substantial controversy,
between parties having adverse legal interests,
of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment.
Maryland Casualty Co. v. Pacific Coal S Oil Co. , 312
U.S. 270, 273 (1941) .
Finally, the Supreme Court has indicated a special
reluctance to have important issues of public law — and
particularly those that are of Constitutional dimension —
resolved by declaratory judgments. "Caution is appropriate
against the subtle tendency to decide piiblic issues free
from the safeguards of critical scrutiny of the facts,
through use of a declaratory summary judgment. " Eccles
v. Peoples Bank of Laltewood Village, California, 333 U.S.
426, 434 (1948). See also Askew v. Hargrave , 401 U.S. 476
(1971) ; Public Service Commission of Utah v. Wycoff Co. ,
344 U.S. 237, 243 (1952); Dickson, Declaratory Remedies
- 6 -
811
and Constitutional Change , 24 Vand.L.Rev. 257, 286-287
(1971).
Viewed in the light of these three critical require-
ments, it will be demonstrated that plaintiffs' attempt
to utilize the Declaratory Judgment Act to resolve this
matter is misconceived.
II. Jurisdiction Is A Threshold Question
It is fundamental that the threshold question in
every case is whether the district court has jurisdiction.
Roberson v. Harris, 393 F.2d 123, 124 (8th Cir. 1968);
Berkowitz v. Philadelphia Chewing Gum Corp. , 303 F.2d
585, 588 (3d Cir. 1962); Underwood v. Maloney, 256 F.2d
334, 340 (3d Cir.), cert, denied 358 U.S. 864 (1958).
The party invoking a court's jurisdiction has the
affirmative duty to allege jurisdiction; and if the
allegations are properly controverted, he has the burden
of establishing such allegations. As put by the Court in
McNutt V. General Motors Acceptance Corp . , 298 U.S. 178,
189 (1936):
They are conditions which must be met by the
party who seeks the exercise of jurisdiction in
his favor. He must allege in his pleading the
facts essential to show jurisdiction. If he
fails to make the necessary allegations he has
no standing. If he does make them, an inquiry
into the existence of jurisdiction is obviously
for the purpose of determining \^ether the facts
support his allegations. In the nature of things,
the authorized inquiry is primarily directed to
the one vrtio claims that the power of the court
should he exerted in his Isehalf. As he is seeking
relief subject to this supervision, it follows
that he must carry throughout the litigation the
burden of showing that he is properly in court.
The authority which the statute vests in the court
to enforce the limitations of its jurisdiction
precludes the idea that jurisdiction may be main-
tained by mere averment or that the party asserting
jurisdiction may be relieved of his burden by any
formal procedure. If his allegations of juris-
dictional facts are challenged by his adversary
in any appropriate manner, he must support them
by competent proof.
- 7 -
812
See also Gibbs v. Buck, 307 U.S. 66 (1939); KVOS , Inc.
V. Associated Press, 299 U.S. 269 (1936).
The importance of these principles is underscored
by the fact that courts have recognized their own duty
to see that their jurisdiction is not exceeded. Thus,
the United States Supreme Court has frequently raised
and decided jurisdictional questions on its ovm motion.
See, e.g., Mitchell v. Maurer , 293 U.S. 237, 244 (1934);
Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908) .
By his Answer, the President has controverted each of
the plaintiff's jurisdictional allegations. Thus contro-
verted, the jurisdictional allegations become the primary
questions before the Court. As was said in Bell v. Hood,
327 U.S. 678, 682 (1946) :
Whether the complaint states a cause of action
on which relief could be granted is a question
of law and just as issues of fact it must be
, decided after and not before the Court has
assumed jurisdiction over the controversy.
See also Opeli)ca Nursing Home, Inc. v. Richardson, 448 F.2d
658 (5th Cir. 1971) . There the Fifth Circuit stated;
Federal jurisdiction is not so ambidextrous as
to permit a district court to dismiss a suit for
want of jurisdiction with one hand and to decide
the merits with the other. A federal district
court concluding lack of jurisdiction should
apply its brakes, cease and desist the proceed-
ings, and shun advisory opinions. To do otherwise
would be in defiance of its jurisdictional fealty.
Therefore, viewing Bell's a priori recpiirement
of finding jurisdiction before rendering a final
decision on the merits as one of the high commands
of our jurisprudential system, we conclude that
the court below, once it held that it had no
jurisdiction, should have immediately dismissed
the action.
448 F.2d at 667.
Before discussing the specific defects in plaintiff's
statutory jurisdictional allegations, it is appropriate to
dispose of their suggestion that they may invoke the
jurisdiction of this Court directly under Article III,
- 8 -
813
§ 2 of the Constitution. (Supp. Memo. 22-24). ^ We
call the Court's attention to the following statement
in Powell v. McCormick, 395 U.S. 486, 512-513 (1969).
In Baker v. Carr***we noted that a federal
district court lacks jurisdiction over the
subject matter (1) if the cause does not "arise
under" the Federal Constitution, laws, or
treaties (or fall within one of the other
enumerated categories of Art. Ill) ; or (2) if
it is not a "case or controversy" within the
meaning of that phrase in Art. Ill; or (3) if
the cause is not one described by any jurisdic-
tional statute.
The Supreme Court in Powell had reference to the discussion
of subject matter jurisdiction in Baker v. Carr, 369 U.S.
186, 198-199 (1962) . This principle has been recently
reaffirmed by the District of Columbia Circuit in United
States Servicemen ' s Fund v. Eastland, F.2d
(No. 24,279 August 30, 1973).
As the quotation from Powell indicates, entry into
the federal court is like opening a safe deposit box,
where two separate keys are required. For the federal
courtroom door, the two essential keys are that the case
be within the judicial power of the United States, as
defined in Article III, S 2, of the Constitution, Hodgson
V. Bowerbank , 5 Cranch (9 U.S.) 303 (1809), and
that it be within a statutory grant of jurisdiction by
the Congress, Cary v. Curtis, 3 How. (44 U.S.) 236, 245
(1845). See Wright, Federal Courts SS 8, 10, (2d ed. 1970).
In this case the plaintiffs lack either key. We shall
discuss first the Constitutional barrier to jurisdiction
over the case before pointing out why they are not within
any of the statutory grants of jurisdiction.
All of the cases to which plaintiffs refer for this
propostion are cases brought by the United States.
There is an independent statutory base for these
cases in 28 U.S.C. S 1345. As we shall demonstrate,
this is not a case brought by the United States
because plaintiffs are not authorized to bring suit
on behalf of the United States. See pp. 27-30 below.
- 9 -
814
III. This Matter Does Not Present A
Justiciable Case or Controversy within
the Meaning of Article III, § 2,
of the Constitution
In making the motion authorizing this suit. Senator
Baker of Tennessee implored the Committee staff to place
a justiciable issue before the courts. (S.Tr. 5502) . We
respectfully submit that they have failed to do so.
The suggestion that the proper manner to resolve the
heretofore unresolved question of executive privilege as
it applies to Congress by way of a declaratory judgment is
not novel. See Berger, Executive Privilege v. Congressional
Inquiry, 12 UCLA L. Rev. 1044, 1287-1289 (1965). The
suggestion, however, flies in the face of the role of the
courts in our Constitutional system of government. For
this is, quite simply, a dispute between the Congress and
the President, and to use the words of Justice Douglas,
"federal courts do not sit as an ombudsman refereeing
disputes between the other two branches." Gravel v.
United States, 408 U.S. 606, 640 (1972) (Douglas, J.
dissenting) .
The concept of justiciability as it has evolved
through our Constitutional history is well-described by
the Supreme Court in Flast v. Cohen, 392 U. S. 83 (1968).
The jurisdiction of federal courts is defined
and limited by Article III of the Constitution.
In terras relevant to the question for decision
in this case, the judicial power of federal
courts is constitutionally restricted to "cases"
and "controversies." As is so often the situation
in constitutional adjudication, those two words
have an iceberg quality, containing beneath their
surface simplicity submerged complexities which
go to the very heart of our constitutional form
of government. Embodied in the words "cases" and
"controversies" are two complementary but some-
what different limitations. In part those words
limit the business of federal courts to questions
presented in an adversary context and in a form
historically viewed as capable of resolution
through the judicial process. And in part those
words define the role assigned to the judiciary
- 10 -
815
in a tripartite allocation of power to answer
that the federal courts will not intrude into
areas coitunitted to the other branches of govern-
ment. Justiciability is the term of art employed
to give expression to this dual limitation placed
upon federal courts by the case-and-controversy
doctrine.
Justiciability is itself a concept of uncertain
meaning and scope. Its reach is illustrated by
the various grounds upon which questions sought
to be adjudicated in federal courts have been
held not to be justiciable. Thus, no justiciable
controversy is presented when the parties seek
adjudication of only a political question, when
the parties are asking for an advisory opinion,
when the question sought to be adjudicated has
been mooted by subsequent developments, and when
there is no standing to maintain the action.
Yet it remains true that " [j Justiciability is
...not a legal concept with a fixed content or
susceptible of scientific verification. Its
ulitization is the resultant of many subtle
pressures..." Poe v. Oilman, 367 U.S. 497, 508
(1961)
392 U.S. at 94-95 (footnotes omitted).
This matter raises problems of justiciability,
primarily because it calls for adjudication of a political
question.
In Marbury v. Madison, 1 Cranch (5 U.S.) 137, 164-166
(1803) , Chief Justice Marshall expressed the view that
the courts will not entertain political questions even
though such questions may involve actual controversies.
This rule was found to have particular force with regard
to the Office of President.
By the Constitution of the United States, the
President is invested with certain important
political powers, in the excerise of which ne
is to use his own discretion, and is accoxint-
able only to his country in his political
character, and to his own conscience. To aid
him in the performance of these duties, he is
authorized to appoint certain officers, who
act by his authority and in conformity with
his orders.
In such cases, their acts are his acts; and
whatever opinion may be entertained of the
manner in which executive discretion may be
used, still there exists, and can exist, no
power to control that discretion. The subjects
are political: they respect the nation, not
individual rights, and being entrusted to the
executive, the decision of the executive is
conclusive.
1 Cranch at 165-166.
- 11 -
816
Since that early statement by Justice Marshall in
Mar bury v. Madison, the courts have struggled to establish
criteria that would enable them to identify and uniformly
deal with political questions. Such criteria have been
evasive. In Coleman v. Miller, 307 U.S. 433, 454-55 (1939),
the Court noted that a political question may be identified
by evaluating "the appropriateness under our system of
government of attributing finality to the action of the
political departments and also the lack of satisfactory
criteria for judicial determination « * *."
It was not until Baker v. Carr, 369 U.S. 186 (1962) ,
however, that the Court finally succeeded in isolating
and articulating a workable set of criteria for identifying
an issue that presents a political question. The Court
said:
Prominent on the surface of any case held to
' involve a political question is found a textual ly
demonstrable constitutional commitment of the
issue to a coordinate political department; or
standards for resolving it; or the impossibility
of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion; or
the impossibility of a court's undertaking inde-
pendent resolution without expressing lack of
the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to
a political decision already made; or the poten-
tiality of embarrassment from multifarious
pronouncements by various departments on one
question.
369 U. S. at 217.
It is submitted that this matter, involving as it
does a request by the Legislative Branch that this Court
overrule a formal and legitimate invocation of executive
privilege, poses a nonjusticiable political question of
such magnitude that literally every single formulation
or criterion estfiblished in Baker v. Ceurr is inextricably
a part of the issue presented.
- 12 -
817
This matter involves a "textually demonstrable
constitutional coininitinent of the issue to a coordinate
branch." The doctrine of executive privilege has pre-
cisely identifiable constitutional sources. The power
herein asserted by the President is conferred by the -j ir
provisions of Article II, SS 1, 2, and 3. ^^"'^ ' ,7'
The § 1 grant of "executive power" solely to the . c/.'^ ' '
President is the most obvious and demonstrable source ^.ydM'*
J- ""
for the heretofore unchallenged right 6f the President
to invoke executive privilege whenever the President
deems it appropriate. Such an exercise of executive
power is entirely consistent with the unbroken tradition -
of executive independence from legislative and judicial
interference. As the Court noted in Myers v. United
States , 272 U.S. 52 (1926):
Montesquieu's view that the maintenance
of independence as between the legislative,
executive and the Judicial branches was a
security for the people had their [the
Framer's] full approval***. Accordingly
the Constitution was so framed as to vest
in the Congress all legislative powers
therein granted, to vest in the President
the executive power, and to vest in one
Supreme Court and such inferior courts
as Congress might establish, the judicial
power. From this division on principle,
the reasonable construction of the Con-
stitution must be that the branches should
be kept separate in all cases in which
they were not expressly blended, and the
Constitution should be expounded to blend
them no more than it affirmatively requires.
272 U.S. at 116.
That the President's right to invoke executive privilege
is a unique eind unrevieweible exercise of the executive
power is apparent when exaunined in the context of §§ 2
aoid 3.
The first paragraph of § 2 expressly grants to the
President the right to require, in writing, the opinions
of his principal executive officers on amy subject. It
- 13 -
r"
34-966 O - 74 - pt. 1 - 53
818
is this clear constitutional coiranitment to the President
of the right to request and receive advice from his
closest advisers which Justice Jackson characterized as
em enumerated executive power that "would seem to be
inherent in the Executive if anything is." Youngstown
Sheet and Tvibe Co. v. Sawyer , 343 U.S. 579, 641 n. 9 (1952)
(concurring opinion) . Equally significant is the fact
that this "inherent" power to seek and receive advice is
among those grants of power in S 2 that is conferred on
the President exclusive of any review by the Senate or
House. In this respect, it is a Constitutional power
as exclusive to the President as his untrammeled power
to grant pardons. Ex parte Garland, 4 Wall. (71 U.S.) 333,
380 (1866) . It furnishes the clear and compelling basis
for the doctrine of executive privilege, a doctrine that
not even the Senate Committee would deny exists.
What the Senate Committee does not comprehend, al-
though obvious to the Founding Fathers, is that the power
to seek and receive advice would be a useless eind empty
power if the President could not keep his own counsel,
free from the review or scrutiny of the courts or the
Congress. The very manner in which this inherent S 2
grant was made independent of Congressional interference
bears witness to the intent of the Framers of the
Constitution to preserve inviolate the confidentiality
of the Executive Breunch.
Whenever the essential confidentiality is threatened,
as it is here, the Constitutional power to seek and receive
advice becomes meaningless. That this clause granting to
the President the power to require advice and opinions from
his advisers would be meaningless without the contingent
right to safeguard the confidentiality of those communi-
cations should be beyond dispute. As Justice Jackson
- 14 -
819
noted in his concurring opinion in Youngs town Sheet
and TLibe Co. v. Sawyer, 343 U.S. 579 (1952):
* * * because the President does not enjoy
unmentioned powers does not mean that the
mentioned ones should be narrowed by a nig-
gardly construction. Some clauses could be
made almost unworkeJsle, as well as immutable,
by refusal to indulge some latitude of
interpretation for changing times. I have
heretofore, and do now, give to the enumerated
powers the scope and elasticity afforded by
what seem to be reasonable, practical impli-
cations instead of the rigidity dictated by
doctrinaire textualism.
343 U.S. at 640.
Section 3 of Article II contains two further "textually
demonstrable" commitments of the issue at stake in this
case to the President. The President, by that section,
is charged "from time to time [to] give to the Congress
Information of the State of the Union * * *." This vests
in the President, not in the sxibpoena power of a Senate
Committee , the power to determine when and what information
he will provide to Congress. The same section imposes on
the President the duty to "take Care that the Laws be faith-
fully executed." As the President has clearly and forcefully
maintained, the meetings and the conversations that the
Senate Committee seeks to make public were participated
in by the President pursuant to this Constitutional mandate.
The performance of this executive duty cannot be brought
vinder legal compulsion. Mississippi v. Johnson, 4 Wall.
*71 U.S.) 475 (1866) .
As former President Taft put it:
The President is required by the Constitution
from time to time to give to Congress informa-
tion on the state of the Union, and to recom-
mend for its consideration such measures as
he shall judge necessary and expedient, but
this does not enable Congress or either House
of Congress to elicit from him confidential
information which he has acquired for the
purpose of enabling him to discharge his
constitutional duties, if he does not deem
the disclosure of such information prudent
or in the public interest.
Taft, Our Chief Magistrate and His Powers 129 (1916)
- 15 -
820
It is possible that any or all of these great powers
may be abused, but for this the Constitution has provided
its own remedy. As a unanimous Court, speaking through
Chief Justice Taft, said of a similar power in Ex parts
Grossman, 267 U.S. 87 (1925):
Our Constitution confers this discretion on
the highest officer in the nation in confidence
that he will not abuse it * * *.
Exceptional cases like this, if to be imagined
at all, would suggest a resort to impeachment
rather than to a narrow and strained construc-
tion of the general powers of the President.
267 U.S. at 121.
The Senate Committee in reality is asking this Court
to substitute its judgment for that of the President in
an area over which the President has exclusive and un-
reviewable power — the invocation of executive privilege.
Such a privilege, inherent as we have demonstrated in the
Constitutional grant of executive power, is a matter for
Presidential judgment alone. The standards and circum-
stances that mandate its use are a function of Presidential
judgments. Such judgments cannot be second-guessed and
overruled at the caprice of the Senate Committee. Nor ceui
they be evaluated 2uid reviewed by any discernible criteria
traditionally utilized by the courts in resolving
Constitutional disputes between individuals. The cases
cited by the Committee in its Motion for Suimnary Judgment
are not even remotely similar to the instant case, involving
as they do controversies resolvable by judicial interpretation
of a statute or the Constitution. Cf . Powell v. McCormiqk ,
395 U.S. 486 (1969): United States v. Lovett, 328 U.S. 303
(1946); Humphrey ' s Executor v. United States, 295 U.S. 602
(1935). Thus b^ virtue of its request that the Court
substitute its judgment for the President's, the Committee
would force this Covirt to make "an initial policy determi-
nation of a kind clearly for nonjudicial discretion." This
- 16 -
821
is a compelling indicia of a political question articulated
in Baker v. Carr .
Even if this Court could somehow acquire the perspective
of the Executive Branch and its chief officer, which is the
perspective from which an invocation of executive privilege
is made, the separation of powers inherent in our Constitutional
scheme would preclude any review of that initial policy
decision. The President's reasons for invoking his privilege
in this case have been explained clearly to the Senate
Committee. Those reasons are firmly anchored in rights
and duties exclusively Presidential. They are a direct
function of the President's duties to preserve the atmo-
sphere of confidentiality so essential to the proper
performance of the Executive's decision-making powers
and to safeguard from general disclosure matters of national
security. It is submitted that in this former duty, just
as in the area of the conduct of foreign relations, the
President is "accountable in the excercise of (his) discretion
only to the people of this country." Drinan v. Nixon,
F. Supp, (Civil No. 73-1424-T, D. Mass.,
Aug. 8, 1973) .
The matter of executive privilege, involving as it
does subtle and exclusively Presidential judgments, is an
area of decision-making where there are "considerations
of policy, considerations of extreme magnitude, and
certainly, entirely incompetent to the examination and
decision of a court of justice." Ware v. Hylton, 3 Dall.
(3 U.S.) 199, 260 (1796). It is this very "lack of judicially
discoverable and manageable standards" for resolving the
issue that further highlights the nonjusticiability of
the question. It is respectfully submitted that this
obvious absence of standards for review of the President's
- 17 -
822
invocation of privilege is apparent upon analysis of the
Court's task in any in camera proceeding. As Professor
Black so clearly explains.
The reason for maintenance of confidentiality
may not, and sometimes will not, appear on the
face of the submitted material but may lie in
its context, outside the record. The President,
in attempting to persuade the judge of the
necessity for confidentiality, would thus
often be forced to reveal more and more
material beyond what had been subpoenaed,
with no assurance that any of this material
would remain confidential.
Black, Letter to the Editor , N.Y. Times, September 6, 1973, p. 34,
Thus the Court is asked to make an initial policy
determination that the President has improperly or mis-
takenly invoked executive privilege. Such a determination
by a court is Constitutionally impermissable and violates
the most basic tenets of the separation of powers. More-
over it is a determination beyond judicial ed^ilities since
the Court simply caiuiot substitute its judgment for that
of the President. The impossibility of judicial resolution
is underscored by the ancillciry problem of the absence of
standards for resolving the question. The teachings of
Baker v. Carr are clear and compelling and require
recognition of these indicia of nonjusticicJaility.
In Powell v. Mccormick , 395 U.S. 486, 548-549 (1969),
the Court determined that it could resolve the question
presented without creating "a potentially embeirrassing
confrontation between coordinate brsinches" of the govern-
ment because the resolution of the question of Representative
Powell's right to be seated in Congress required no more
than that the Court exercise its traditional role as inter-
preter of the Constitution. The decision required an
inteirpretation of Congressional powers under Article 1,
S 5, the type of interpretative function traditionally the
- 18 -
823
responsibility of the Judicial Branch. The instant case
cannot be so easily resolved. Contrary to the facts in
Powell, there is no dispute in this case as to the
President's Constitutional power to invoke executive privilege.
Many courts have so held and the Senate Committee itself
recognizes the existence of an executive privilege. The
Senate Committee, however, asks this Covirt to rule that
the Legislative Branch has the responsibility and jjower to
review the propriety of executive utilization of it. Such
a legislative power does not exist, and for this Court to
hold to the contrary would be the most patent expression of
"lack of respect due a coordinate branch of government."
Again, the teachings of Baker v. Carr obtain and the true
nature of the political question presented is made manifest.
In Committee for Nuclear Responsibility, Inc. v. Seaborg
463 F.2d 788, 792 (D.C. Cir. 1971), a case upon which the
Committee relies, the court clearly recognized that the
government has an interest in avoiding disclosure of docu-
ments "which reflect intra-executive advisory opinions
and recommendations whose confidentiality contributes
substantially to the effectiveness of government decision-
making processes." In Seaborg, the court considered only
a claim of privilege by an "executive department or agency"
and thus, despite the Committee's view that it controls
here, Seaborg cannot be read as authoritative on the issue
of a direct, personal claim of privilege by the Chief
Executive.
Vfhat the Senate Committee requests here is for the
Court to order the President to give up materials that the
President claims are privileged. No court has ever done so.
"The fact that no such application was ever before made in
any case indicates the general judgment of the profession
that no such application should be entertained." Mississippi
v. Johnson, 4 Wall, (71 U.S.) 475, 500 (1866).
- 19 -
824
It is submitted that the question before this Court
poses the dilemma inherent in any nonjusticieible political
question. The Court is being asked to resolve a direct
clash of power between two branches of government. To
resolve the confrontation the Court must necessarily declare
that one power is greater than its counterpart smd thus
violate the very essence of separation of powers among the
co-equal branches. In this situation Mississippi v. Johnson
is again instructive.
If the President refused obedience, it is
needless to observe that the court is with-
out power to enforce its process. If, on
the other hand, the President complies with
the order of the court and refuses to execute
the acts of Congress, is it not clear that
a collision may occur between the executive
emd legislative departments of the government?
4 Wall, at 500-501. This case presents the same danger present
in Mississippi v. Johnson, for if the Court denies the
President's right to invoke executive privilege and orders
production, there is no power to compel it. Nothing could
more clearly demonstrate "lack of respect due a coordinate
brzmch of government," and nothing could more explicitly
demonstrate the nonjusticiable nature of the present matter.
The Presidential decision to invoke executive privilege
is by definition a political decision. It is a function of
the President's position as Chief Executive. It involves,
as we have demonstrated, a complex blend of policy, per-
spective, emd knowledge uniquely the province of the
President and Executive Branch. Neither the courts nor
Congress can vouchsafe themselves the elements of knowledge
and perspective necesssu:^ to examine and review such a
decision. If the exclusive executive power conferred upon
the President in Article II is to remain a meaningful
constitutional allocation, neither the court nor Congress
can look behind this political decision already made by
the President.
- 20 -
825
The Senate Committee invites this Court to create a
Constitutional confrontation destructive of the separation
of powers. It is submitted, with respect, that such an
invitation must be declined. The atmosphere of Constitutional
confrontation must be dissolved by this Court's "unquestioning
adherence to the political decision already made." The
unusual need for such adherence is further indicative of
the nonjusticiable nature of the question presented.
Should this Court even consider issuance of the mandate
requested by the Senate Committee, there should be an imme-
diate recognition of its effect. If this Court declares
in the instant controversy that Congress has the power to
ask a court to review a direct, personal Presidential
invocation of executive privilege, the trend is established
for such declarations by all 400 district court judges.
Baker v. Carr held that the potential for "embarrassment
from multifarious pronouncements" on a single controversy
is, in and of itself, reason for the judiciary to avoid
resolution of a question and to declare that question
nonjusticiable.
It is submitted that this Committee's challenge to
the invocation of executive privilege is merely the first
such challenge to executive power and confidentiality
that will occur if this Court issues the judgment requested.
For this reason, as well as existence of all the other
indicia of a political question that adhere in this matter,
the Court must hold the matter before it to be nonjusticiable.
IV. This Case Does Not Come Within Any
Statutory Grant of Subject-Matter Jurisdiction
In paragraphs 6 to 9 of the Complaint, the Senate
Committee seeks to invoke four different and wholly inde-
pendent statutes as basis for jurisdiction of this case.
- 21 -
826
But there is no strength in numbers, and invocation of
four inapplicable statutes does not redeem the failure to
cite even one statute that does apply.
A. 28 U.S.C. S 1331
28 U.S.C. S 1331 grants to the district courts jurisdiction
over all "civil actions wherein the matter in controversy
exceeds the sum or value of $10,000, exclusive of interest
and costs, and arises under the Constitution, laws, or
treaties of the United States." We agree that this is a
"federal question" in the sense that, if it is justiciable
at all, it does raise an issue of the respective rights of
the President and Congress and of the. power of the courts
to mediate between them. We do, however, take issue with
the bald assertion in paragraph 6 of the Complaint that the
"matter in controversy" exceeds the sum of $10,000, exclusive
of costs, nor do we think that the failure to show how this
is so in the Complaint has been remedied by the discussion in
the Supplemental Memorandum or the Affidavit of Senator Ervin
appended thereto.
From the earliest days of the Republic, the jurisdiction
of the federal courts has depended, with regard to most
classes of cases , upon a certain minimum aunount in contro-
versy. Since 1958, the amount has been $10,000, exclusive
of interest and costs. This is not a technicality, but a
jurisdictional prerequisite. See United States v. Sayward,
160 U.S. 493, 497 (1895); Fishback v. Western Union
Telegraph Co. , 161 U.S. 96 (1896) ; Holt v. Indiana
Manufacturing Co. , 176 U.S. 68, 73 (1900). As stated in
Giancana v. Johnson, 335 F.2d 366, 368 (7th Cir. 1964);
Courts may not treat as a mere technicality
the jurisdictional amount essential to the
"federal question" jurisdiction, even in this
case where there is an allegedly unwarranted
invasion of .. .privacy. The showing of that
- 22 -
827
essential is not a mere matter of form, but
is a necessary element. Congress in § 1331
expressed the "federal question" jurisdiction
in plain words. The district courts and
suitors are bound by the words expressed.
Congress could have withheld the jurisdiction
entirely, as it did from 1789 to 1875. Or it
could have given jurisdiction over suits arising
"under the constitution, laws or treaties of
the U.S." simply. But it limited the juris-
diction by including the element of the sum
or value of the matter in controversy, and
the congressional will is that unless that
sum or value is shown there is no "federal
question" presented and no jurisdiction.
The Fourth Circuit addressed this issue in McGaw v. Farrow,
472 F.2d 952, (4th Cir. 1973), stating:
The plaintiffs complain, however, that dismissal
of their federal action on jurisdictional grounds
will leave them remediless, since state courts
are closed to them in actions against federal
officials. * * * But whether there is a state
remedy or not provides no warrant for the courts
to extend "federal question" jurisdiction beyond
the limits fixed by Congress. The authority
"to control lower federal court jurisdiction"
is specifically vested in Congress under Article
III of the Constitution. Accordingly, in deter-
mining the boundaries of "federal question"
jurisdiction, courts must look to the Congres-
sional enactment fixing that jurisdiction, not
to the Constitution, remembering as Justice
Frankfurter bluntly put it in Romero v.
International Term. Co. (1959) 358 U.S. 354, 379,
79 S.Ct. 468, 484, 3 L.Ed. 2d 368 that in such
inquiry "[I]t is a statute, not a Constitution,
we are expounding." Actually, from 1789 to 1875
federal courts exercised no "federal question"
jurisdiction, and this was true whether there was
a state remedy available or not, simply because
there was no statutory authority for such
jurisdiction. And when Congress did provide
statutory authority for just jurisdiction,
"...it limited the jurisdiction by including
the element of the sum or value of the matter
in controversy,..." and this limitation as to
amount in controversy "is not a mere matter of
form, but is a necessary element."
47 2 F.2d at 955 (footnotes omitted) .
For jurisdiction to lie under 28 U.S.C. § 1331, the
right or thing in controversy must be capable of valuation
in monetary terms. As put by the court in Kheel v. Port of
New York Authority, 457 F.2d 46, (2d Cir. 1972):
The federal courts cannot take cognizance under
section 1331 of cases in which the rights are
not capeible of valuation in monetary terms.
And the jurisdictional test is applicable to
- 23 -
828
that cutiount that flows directly and with a fair
degree of probcibility from the litigation, not
from collateral or speculative sources.
457 F.2d at 49.
The rule that a claim not measurable in dollars and cents
fails to meet the jurisdictional test of cimount in contro-
versy was announced as early as Barry v. Mercein, 5 How.
(46 U.S.) 103 (1847) , and has been frequently reiterated
and applied by lower courts, e.g., McGaw v. Farrow , 472
F.2d 952, 954 (4th Cir. 1973); Goldsmith v. Sutherland,
426 F.2d 1395, 1397 (6th Cir.), cert, denied 400 U.S. 960
(1970); Rapoport v. Rapoport , 416 F.2d 41, 43 (9th Cir. 1969),
cert, denied 397 U.S. 915 (1970) ; 1 Moore, Federal Practice
11 0.92[5] (2d ed. 1960); 1 Barron & Holtzoff, Federal
Practice and Procedure § 24, at 107-108 (Wright ed. 1960) .
The suggestion, based on the affidavit of Senator Ervin,
that hearing the tapes is worth more than $10,0 00 to the
Coiranittee because, if it is denied access to them, it will
cost the Committee more than $10,000 to obtain the information
it needs in other ways , is irrelevant in determing whether
the requisite cunount is in controversy, as the total inap-
positeness of the only cases cited in that portion of the
argument (Supp. Memo. 17) demonstrate. Those cases hold
only that in a challenge to a regulatory statute or order
the cost of complying with the statute or order is the
amount in controversy, a proposition that no one would
deny. But it is the "value of the object" of the suit
that measures what it is in controversy , Mississippi £
Missouri R. R. Co. v. Ward, 2 Blac)t (67 U.S.) 485 (1862),
and the object of this suit is production of the tapes.
Plaintiffs have cited no case in which the cost of
achieving the object by alternative means if the suit
- 24 -
829
fails has been regarded as the amount in controversy —
and they have not done so because there is no such case.
Instead, the law is well settled that side effects of
a decision, even when they clearly will result from stare
decisis or collateral estoppel, will not be considered.
E.g., Town of Elgin v. Marshall, 106 U.S. 578 (1882);
Healy v. Ratta 292 U.S. 263 (1934). ^
It is true that a divided panel of the Third Circuit,
Spock V. David , 469 F.2d 1047 (3d Cir. 1972) , and a very
few district court cases (Supp. Memo. 18) have held that
Constitutional rights are an exception to the principle
that a claim not measurable in dollars fails to meet the
statutory requirement — and have apparently assumed that
all Constitutional rights , or at least those based on the
Constitutional provisions involved in those cases, are worth
in excess of $10,000. Much could be said for rewriting the
statute to remove the amount in controversy requirement in
cases in which Constitutional rights are asserted against
federal officers, but Congress, though it has had legislation
to this effect pending several times, has failed to do so.
For interesting recent applications of these rules ,
see (juinault Tribe of Indians v. Gallagher, 368 F.2d
648 (9th Cir. 1966) cert, denied 387 U.S. 907 (1967) , and
Kola V. Breier, 312 F. Supp. 19 (E.D. Wis. 1970) . In
the first of these cases the amount in controversy was
held insufficient in a suit to prevent a state from
asserting jurisdiction over an Indian reservation, even
though if the plaintiff tribe lost the suit it would no
longer get federal payments for law enforcement over the
reservation. In the Kola case the court dismissed a
suit for a declaration that a newspaper was not obscene,
holding that it could not take into account the claim
by the newspaper that, absent such a declaration, a state
prosecution for obscenity would cause it to lose more
than $10,000 in advertising and sales.
The suggestion (Supp. Memo. 19) that the tapes have
a monetary value to the President in excess of $10,000
does not need to be dignified with a response.
- 25 -
830
The notion that it is for the courts to fill in a
jurisdictional gap that they wish Congress had not
created has been rejected by the majority of the courts.
E.g., Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir.),
cert, denied 400 U.S. 960 (1970) . The Fourth Circuit,
which had before it the opinion of the divided Third
Circuit, expressly refused to follow it. It dismissed,
for want of the requisite amount, a suit asserting First
Amendment rights, and said: "Though a few decisions have
held contrariwise, a like conclusion has been reached
in a majority of the decisions of Circuit Courts of Appeals."
McGaw V. Farrow, 472 F.2d 952, 954 (4th Cir. 1973). And it
added the useful reminder that if this is indeed an unfor-
tunate gap in federal jurisdiction, "it can only be filled
in by Congress and not by judicial legislation." 472 F.2d
at 955.
The Fourth Circuit is clearly right when it
observes that the rule it applied is not only the
majority rule — indeed the almost-universal rule —
but that it seems to have been reaffirmed very recently
by the Supreme Court in Lynch v. Household Finance Corp. ,
405 U.S. 538 (1972) . Lynch held that personal rights
as well as property rights may be enforced against state
officials under 28 U.S.C. § 1343, which requires no
amount in controversy, but it specifically noted that
in suits against federal officials, which lie only
under § 1331 rather than § 1343, "it is necessary to
satisfy the amount-in-controversy requirement for
federal jurisdiction." 405 U.S. at 547. See also
Oestereich v. Selective Service System Local Board No. 11,
393 U.S. 233, 239 (1968) .
Since the right asserted by the Senate here is not
capcible of being valued in money, this suit cannot lie
under 28 U.S;C. § 1331.
- 26 -
831
B. 28 U.S.C. § 1345
Plaintiffs also seek to invoke jurisdiction under
28 U.S.C. S 1345. That statute provides:
Except as otherwise provided by Act of Congress,
the district courts shall have original jurisdiction
of all civil actions, suits or proceedings commenced
by the United States, or by any agency or officer
thereof expressly authorized to sue by Act of
Congress.
In order for suit to be maintained under § 1345,
plaintiffs must demonstrate that this suit was "commenced
by the United States" or that it was commenced by an "agency
or officer thereof expressly authorized to sue by Act of
Congress." This plaintiffs have failed to do.
It is clear that this suit was not "commenced by
the United States." The authority for conducting euid
supervising litigation in which the United States is a
party, or is interested, is reserved to officers of the
Department of Justice lander the direction of the Attorney
General, 28 U.S.C. § 516, and is specifically delegated
to the United States Attorney for the district in which
the action arose, 28 U.S.C, § 547(2). This requirement
was recognized by the Supreme Court as early as 1868 in
the Confiscation Cases, 7 Wall. (74 U.S.) 454, 457 (1868),
where the court stated that the
settled rule is that those courts [district
and circuit courts] will not recognize any
suit, civil or criminal, as regularly before
them, if prosecuted in the name and for the
benefit of the United States, unless the same
is represented by the district attorney*** .
Consequently, this suit, if maintainable at all under
28 U.S.C. S 1345, must be brought in the name of the
United States and by the United States Attorney for the
District of Columbia. Neither of these requirements
have been met here.
- 27 -
832
Moreover, it is equally clear that this action was
not commenced by cin "agency or officer thereof expressly
authorized to sue by Act of Congress." For purposes of
S 1345, the term "agency" is defined in 28 U.S.C. S 451
to include
any department, independent establishment,
commission, administration, authority, board
or bureau of the United States or any corpora-
tion in which the United States has a proprietary
interest*** .
It is instructive to note that in the 1948 revision of
the Judicial Code, the Reviser's Note to § 1345 says,
in part:
Word 'agency' was inserted in order that this
section Shall apply to actions by agencies of
the Government and to conform with special acts
authorizing such actions. (see definitive
section 451 of this title.)
Thus, it was expressly contemplated that § 451 would
control in interpreting § 1345. See also ALI , Study of
the Divison of Jurisdiction between State and Federal Courts,
256 (Off. Dr. 1969). "Agency" is also defined under the
Administrative Procedure Act, 5 U.S.C. § 551(1) (a), and
the Congress is specifically excluded from that definition.
The only arguable authority for maintaining this
suit under S 1345 is S. Res. 262, 70th Cong. 1st Sess.
(1928) . That resolution provides in part:
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 performemce of the
powers invested in it or the duties imposed upon
it by the Constitution, resolution of the Senate,
or other law.
As plaintiffs note, this resolution was adopted because
of the decision in Reed v. County Commissioners , 277 U.S.
376 (1928) , which held that a resolution creating a special
Senate Committee to investigate certain election activities
- 28 -
833
and conferring on it "all powers of procedure with respect
to the subject matter" of the resolution did not give the
committee authority to bring suit. 277 U.S. at 389. The
plaintiffs in Reed had argued that jurisdiction existed
under 28 U.S.C. § 41 (the predecessor of 28 U.S.C. § 1345)
which provided that district courts had original jurisdic-
tion "of all suits of a civil nature, at common law or in
equity, brought by the United States, or by an officer
thereof authorized by law to sue***." After the plaintiffs'
contention was rejected in Reed, the Senate sought to
prevent such a result in the future by adopting Senate
Resolution 262, which purports to authorize committees to
bring suit.
Whether a Senate resolution could constitute sufficient
authorization to sue is questionable under Reed, since that
opinion contains dicta to the , effect that the Senate acting
alone may not be eible to give that authority. 277 U.S.
at 388. But any doubt that may have existed under the
Reed holding was laid to rest by the enactment of 28
U.S.C. § 1345, which specifically requires express
authorization by an Act of Congress.^ In view of this
more recent expression of legislative intent, it is
clear that Senate Resolution 262 — which is surely not
an "Act of Congress" — is insufficient.
The two cases cited by plaintiffs arising out of
activities of the Committee on Banking and Currency
Plaintiffs' construction of the President's Third
Defense is in error. We do not suggest that the
Senate must have permission of the House to sue.
Rather our argument is that if the Senate, or one
of its Committees, is permitted to institute a
suit, it must find some statutory basis for juris-
diction, and this particular jurisdictional statute
requires an "Act of Congress."
- 29 -
34-966 O - 74 - pt. ;
834
(Supp. Memo. 21) are not authority to the contrary since
no jurisdictional issue was raised or noticed by the
courts. And the cases for the proposition that the
government may sue to protect a wide variety of national
interests (Supp. Memo. 22-23) are wholly off point.
Those cases go to the standing of the United States to
assert claims of particular kinds. There was no problem
of jurisdiction in any of them, since suit was by the
United States, and jurisdiction was granted by S 1345
or its predecessor.
Simply stated, plaintiffs are not empowered by Act
of Congress to sue and cannot invoke the jurisdiction of
this Court under 28 U.S.C. S 1345.
C. 28 U.S.C. S 1361
Plaintiffs claim jurisdiction under 28 U.S.C. § 1361, which
grants "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
President." In support of their jurisdictional allegation,
plaintiffs allege in paragraph 19 of the Complaint that
the President's refusal to produce the materials sought by
the subpoenas was "in breach of his legal duty to respond
to and to comply with such subpoenas . " The Complaint is
devoid of amy other facts defining the nature of the duty
allegedly owed the plaintiffs.
The purpose of 28 U.S.C. S 1361 was to facilitate
review by federal courts of administrative actions, not
to create new causes of action against the United States
Government. 2 U.S. Code Cong. & Adm. News 2785 (1962) .
Thus for jurisdiction to lie under 28 U.S.C. S 1361,
plaintiffs must demonstrate that the traditional criteria
- 30 -
835
for a mandamus proceeding have been satisfied. McGaw
V. Farrow , 472 F.2d 952, 956 (4th Cir. 1973). In Prarie
Band of Potawatomie Tribe of Indians v. Udall, 355 F . 2d
364, 367 (10th Cir.), cert, denied 385 U.S. 831 (1966),
it was stated that
Before such a writ may issue, it must appear that
the claim is clear and certain and the duty of the
officer involved must be ministerial, plainly de-
fined, and peremptory. Huddleston v. Dwyer , 10
Cir. 145 F.2d 311. The duty sought to be exercised
must be a positive command and so plainly prescribed
as to be free from doubt. Wilbur v. United States
ex rel. Kadrie , 281 U.S. 206, 50 S.Ct. 320, 74
L.Ed 809.
See also McGaw v. Farrow, 472 F. 2d ,952, 956 (4th Cir. 1973);
Jarrett v. Resor , 426 F.2d 213, 216 (9th Cir. 1970); United
States v. Walker, 409 F.2d 477, 481 (9th Cir. 1969);
Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969).
Plaintiffs admit, as they must, that for jurisdiction
to lie under 28 U.S.C. § 1361, they must show that the
President owes a ministerial duty to the Senate Select
Committee to furnish the evidence in question (Supp. Memo.
24-25) . In support of this proposition they place sole
reliance on the holding in this Court in the related case
that the President's duty to turn over evidence to a grand
jury was ministerial in nature.
We would first point out that we disagree with this
holding by the Court in the grand jury proceeding, which
is presently on appeal. In addition, it will be demon-
strated in Point VII that disclosure by the President to
It is no mere happenstance that the statute uses
the phrase "in the nature of mandamus." This
Icinguage was added at the insistence of the De-
partment of Justice, and finally agreed to by
those who were pressing for the legislation only
because they feared a veto if those words were
deleted. See Jacoby, The Effect of Recent Changes
in the Law of "Nonstatutory" Judicial Review, 53
Geo. L.J. 19, 21-23 (1964) . Thus, the restriction of
the statute to traditional concepts of mandamus was
quite deliberate.
- 31 -
836
Congress is discretionary with the President, based on
his view of what the public interest permits. The
suggestion that he is under a ministerial duty, enforcible
by mandcunus , to disclose to Congress anything and every-
thing a committee may demand is wholly without precedent
in our history, and has been authoritatively refuted
many times. Surely it cannot be contended that this
imaginary duty is "so plainly prescribed as to be free
from doubt. "
The reliance on Watkins v. United States, 354 U.S.
178, 187 (1957) , and United States v. Bryan, 339 U.S.
323, 331-332 (1950), is misplaced. (Supp. Memo. 2-7).
These cases do not support the proposition that a Congres-
sional committee has the status of a grand jury. In fact,
Watkins clearly states that Congress is not a "law enforce-
ment or trial agency."
'p. 5 U.S. C. § 701
As their fourth and final basis for federal jurisdiction,
plaintiffs rely upon the Administrative Procedure Act, 5 U.S.C.
§§ 701 et seq., claiming to have suffered a "legal wrong" as
the result of Presidential action for which no adequate review
proceeding is otherwise available. Section 702 of the Act
provides that
A person suffering legal wrong because
of agency action, or adversely affected
or aggrieved by agency action within the
meaning of a relevant statute, is entitled
to judicial review thereof.
"The terms used in this section are terms of art," Kctnsas City
Power & Light Co. v. McKay , 225 F.2d 924, 932 (D.C. Cir.),
cert, denied 350 U.S. 884 (1955) and since the essential
elements of judicial review — "agency action" and a "legal
wrong" — are lacking here, the plaintiffs are not entitled
- 32 -
837
to judicial review and their jurisdictional claim under the
Administrative Procedure Act must fail.
Not even under the most contorted interpretation of the
Administrative Procedure Act could the President's refusal
to produce the items sought by the subpoenas be considered
"agency action, " the essence of which is adjudication and
rule-making. Professor Davis has suggested that when the
President, a governor, or a municipal governing body exercises
a power of adjudication or rule-making, he or it is to that
extent an administrative agency, 1 Davis, Administrative
Law Treatise, § 1.01 at 1-2 (1958), but plaintiffs' reliance
on Amalgamated Meat Cutters & Butcher Workmen v. Connally,
337 F.Supp. 737, 761 (D.D.C. 1971) for the proposition that
the President is an "agency" under the facts of this case is
clearly misplaced. "Rule-making" means "agency process for
formulating, amending, or repealing a rule" and " [a] d judication"
means "agency process for the formulation of an order."
5 U.S.C. S 551(5), (7). Plaintiffs have not alleged any
conduct on the part of the President that would fall into
either category; moreover, the definition of "agency action" —
"the vrtiole or a part of an agency rule, order, license.
The extravagant reading the Senate Committee gives to
the Amalgamated Meat Cutters case (Supp. Memo. 26-27)
overlooks the express statement by the court in that
case that "we need not consider whether an action for
judicial review can be brought against the President
eo nomine . " 337 F.Supp. at 761. It overlooks also
Soucie V. David, 448 F.2d 1067, 1073 n. 17 (D.C. Cir.
1971) , in which the Court of Appeals for the District
of Columbia Circuit expressly left open v^ether the
President is sxobject to the Administrative Procedure
Act. Aside from the general principle, discussed at
pp. 46-49 below, that statutory language that does not
refer in terms to the President should not be held to
apply to him, it is hard to imagine that a statute that
excludes from its operations even the governments of the
territories and the Mayor of the District of Columbia
should be held to have included, in its bland and neutral
language, the President of the United States.
- 33 -
838
Seuiction, relief or the equivalent or denial thereof, or the
failure to act," 5 U.S.C. S 551(13) — would preclude such a
conclusion.
Judicial review under the Administrative Procedure Act
is limited to persons who have suffered a legal wrong. Legal
wrong "means that something more than mere adverse personal
effect must be shown -- that is, that the adverse effect must
be an illegal effect," S. Rep. No. 752, 79th Cong., 1st Sess.
(1945) at p. 26, and the legal wrong must be one that the
courts and statutes have recognized as constituting a ground
for judicial review. Attorney General ' s Manual on the
Administrative Procedure Act 96 (1947.) As stated in Kansas
City Power & Light Co. v. McKay , 225 F.2d 924, 932 (D.C. Cir.),
cert, denied 350 U.S. 884 (1955) , judicial review is provided
for the benefit of those "whose legal rights have been violated."
The plaintiffs have not pointed to any legal right that has
been violated and that would entitle them to judicial review.
Moreover, it is widely held that the Administrative
Procedure Act is not eui independent basis for federal juris-
diction. See, e.g., Arizona State Dept. of Public Welfare
V. Dept. of Health . Education , and Welfare, 449 F.2d 456, 464
(9th Cir. 1971), cert, denied 405 U.S. 919 (1972); Zimmerman
V. United States Government, 422 F.2d 326, 330-331 (3d Cir.),
cert, denied 399 U.S. 911 (1970); Twin Cities Chippewa Tribal
Council V. Minnesota Chippewa Tribe, 370 F.2d 529, 532 (8th Cir.
1967); Chournos v. United States , 335 F.2d 918, 919 (10th Cir.
1964) ; Local 542, International Union of Operating Engineers v.
N.L.R.B., 328 F.2d 850, 854 (3d Cir.), cert, denied 379 U.S.
826 (1964); Ove Gustavsson Contracting Co. v. Floete , 278 F.2d
912, 914 (2d Cir.), cert, denied 364 U.S. 894 (1960).
- 34 -
839
That is the rule repeatedly followed in this Circuit,
and for an excellent reason. Section 10(b) of the Administrative
Procedure Act — now 5 U.S.C. § 703 — allows suit in "any
court of competent jurisdiction" and thus, as the Court of
Appeals very early said, "can therefore hardly be argued to
extend the jurisdiction of any court to cases not otherwise
within its competence." Almour v. Pace, 193 F.2d 699, 701 n. 5
(D.C. Cir. 1951). Again in Kansas City Power & Light Co. v.
McKay , 225 F.2d 924, 932-933 (D.C. Cir.), cert, denied 350 U.S.
884 (1955) , the Court of Appeals said:
Section 10 (b) of the Administrative Procedure
Act does not help appellants. The reference in
that section to "any court of competent jurisdic-
tion" does not of itself establish the jurisdiction
of the Federal courts over an action not otherwise
cognizable by them.
To the same effect, see Pcm American World Airways , Inc.
v. C.A.B. , 392 F.2d 483, 494 (D.C. Cir. 1968).^
Thus the Administrative Procedure Act serves the plaintiffs
ho better than do §§ 1331, 1345, or 1361 of the Judicial Code.
The simple fact is that Congress has never empowered the
district courts to hear a suit of the kind plaintiffs are
bringing .
V. This Court Lacks In Personam Jurisdiction
Plaintiffs allege in paragraph 5 of the Complaint that
Richard M. Nixon is sued in both his official and individual
capacity, but it is clear from the remaining allegations in
the Complaint that the acts complained of — the refusal to
comply with the subpoenas — were acts performed in his
official capacity as President of the United States.
There is no Supreme Court decision to the contrary.
Although Justice Brennan , in his concurring opinion in
Rusk V. Cort, 369 U.S. 367, 380 (1962), makes a passing
reference to the Declaratory Judgment Act and the Ad-
ministrative Procedure Act as "general grants of juris-
diction," he must have intended some other nuance of the
term "jurisdiction," since it is well established that
the Declaratory Judgment Act is not a grant of juris-
diction. Zimmerman v. United States , 422 F.2d 326,
331 n. 7 (3d Cir.) , cert, denied 399 U.S. 911 (1970).
- 35 -
840
A suggestion that a President of the United States may
be sued, either officially or individually, to remedy official
discretionary acts raises, of course, a fundamental question
of separation of powers. Much has been said about separation
of powers in the "political question" discussion in Part III
of the brief and will not be repeated here. It is suf-
ficient to touch briefly on the question to show that courts
have viewed the separation of powers as a barrier to juris-
diction over the person of the President.
The recent case of National Association of Internal
Revenue Employees v. Nixon, 349 F.Supp. 18 (D.D.C. 1972) ,
appeal docketed No. 72-1929, D.C. Cir., is the most recent
example of a case where a court dismissed an action against
the President on the basis of separation of powers. The
court stated:
The fundamental doctrine of separation-of-powers
^ dictates this result, cuid it has been settled
since the case of State of Mississippi v. Johnson ,
4 Wall. (71 U.S.) 475 (1866). In that case the
Supreme Court commented on the impropriety of judicial
interference with executive functions as follows:
The impropriety of such interference will be
clearly seen upon considerations of its possible
consequences .
Suppose the bill filed and the injunction prayed
for allowed. If the President refuse obedience,
it is needless to observe that the court is without
power to enforce its process. 71 U.S. at 501.
349 F.Supp. at 21-22.
The court also relied on Trimble v. Johnston, 173 F.Supp.
651 (D.D.C. 1959), where Judge Holtzoff noted:
It is no part of the judicial function to supervise
or control the business of the executive or legislative
departments of the Government. Otherwise the judiciary,
instead of being one of the three co-ordinate branches,
would be supreme over the other two. We would then
have a government by the courts, instead of by the
Congress and the President. Manifestly the Founding
Fathers did not contemplate such a result.
- 36 -
841
173 F.Supp. at 653. See also Reese v. Nixon, 347 F.Supp. 314,
316 (CD. Cal. 1972); San Francisco Redevelopingnj; Agenqy. v.
Nixon, 329 F.Supp. 672 (N.D. Cal. 1971).
Two courts have entertained the thought that a suit may
be brought against the President. See Meyers v. Nixon,
339 F.Supp. 1388, 1399 (S.D.N.Y. 1972); Atlee v. Nixon, 336
F.Supp. 790, 791 (E.D.Pa. 1972). In both cases, the courts found
other grounds for decision, and despite their dicta, which is
not persuasive, they are not authority for plaintiffs in this
case.
The suit is against the President of the United States,
not against some lower government officer. As former Presi-
dent — and later Chief Justice — Taft wrote:
The Supreme Court seems to meike a broad distinction
between issuing process against the President and
against his siibordinates vir.der laws requiring the specific
performance of a definite act. I cannot think that the
Court would ever issue a mandamus to compel the President
to perform even an act purely ministerial, though it has
often issued such a writ against one of his subordinates.
The Supreme Court has a number of times intimated that the
President's office is of such a high character, that
officially he is beyond the compulsory process of the
Court .
Taft, Our Chief Magistrate and His Powers 132 (1916) .
VI. Plaintiffs Have Exceeded Their Legislative
Authority Under Both the Constitution and Their
Enabling Resolution
The nature of the assault upon the Presidency by the
Senate Select Committee aind the gravity of the Constitutional
confrontation that it has provoked require this Court to ex-
amine carefully the authority of the Committee. That authority
must be closely measured against both the Constitutional
limitations of the legislative branch and limitations found
in the delegation of authority to the Committee by the Senate.
A. Constitutional Limits
The power of the Congress to conduct investigations is
- 37 -
842
inherent in the legislative process and is broad. Congress
cannot legislate wisely or effectively in the absence of in-
formation respecting the conditions which the legislation is
intended to affect or change. Therefore the power of inquiry
is a necessary and appropriate attribute of the power to
legislate. McGrain v. Daugherty , 273 U.S. 135, 175 (1927).
However, this power of inquiry is not unlimited. Watkins
V. United States, 354 U.S. 178, 187 (1956) ; United States v.
Rumely, 345 U.S. 41, 58 (1953) (Douglas, J., concurring);
Marshall v. Gordon , 243 U.S. 521 (1917); Kilbourn v. Thompson ,
103 U.S. 168 (1880) .
The Senate Select Committee has asserted a broad mandate
to "get to the bottom of widespread but incompletely substantiated
suspicions of wrongdoing at the highest executive levels."
(Memo. 15) . In this action the movants have subpoenaed tape
recordings and other materials in an effort to resolve the
conflicting testimony adduced at the Senate hearings and thus
determine "the precise extent of malfeasance in the executive
branch." (Memo. 16). This inquiry is not germane to the
Committee's legislative purpose, and indeed constitutes a
usurpation of those duties exclusively vested in the executive
and the judiciary.
The Senate Select Committee was established to investigate
and study the extent to which illegal, improper, or unethical
activities existed in the Presidential election of 1972 and
related events, and to "determine whether in its judgment any
occurrences * * * revealed * * * indicate the necessity or
desirability of the enactment of new congressional legislation
to safeguard the electoral process by which the President of
the United States is chosen." S. Res. 60, 93rd Congress, 1st
Sess. (1973). Accordingly, the Committee's mandate was to
- 38 -
843
identify illegal, improper, or unethical activities and
recommend corrective legislation, not to resolve the conflicts
in the evidence and adjudicate questions of guilt or innocence.
Such an inquiry is not germane to the Committee's legislative
purpose, and is outside its charge. Clearly the movants can
9
honor their legislative mandate without access to the tapes.
Most significantly the Senate Select Committee has con-
ducted, and in this action is endeavoring to continue to conduct,
a criminal investigation and trial. The Committee is seeking
to ferret out all the facts, resolve all the conflicts in the
evidence, and determine the guilt or innocence of all the al-
leged participants. The Committee has apparently conceived its
primary mission as one of determining culpability on the part
of the President. "What did the President know and when did
he know it." See, e.g., S. Tr. 2096, 3999. This theme
runs throughout the Committee's hearing and legal papers.
Thus it has been stated:
It should be noted that at least one member of the
Committee, although joining in the present action, has
acknowledged that production of the tapes is not es-
sential to the legislative functions of the Committee.
The Washington Post of September 10, 1973, p. A2 , re-
ported the following statement of Senator Daniel K.
Inouye :
"I think we can proceed and file an adequate report
without the tapes , " said Inouye , a member of the Senate
Watergate Committee.
"As far as I am concerned personally," he said on
NBC's "Meet the Press" program, this is where the
difference between a legislative proceeding and a
judicial proceeding comes in. If this were a criminal
- matter, I would say that the tapes are absolutely
necessary. "
He was asked, "You personally don't care then who is
telling the truth?"
"It is not our business to decide the guilt or inno-
cence of any part," Inouye responded.
- 39 -
844
Unfortunately, the involvement or non involvement of
the President himself in that congeries of criminal
activities falling under the general rubric of "Water-
gate" is very much an integral part of the present
investigation. That fact is perhaps best epitomized by
the persistent inquiry of Senator Baker — "What did
the President know and when did he know it?" John Wesley
Dean, III, in his sworn testimony before the Select
Committee, has accused the President of complicity in
serious crimes. If Dean be believed the President may
be guilty of several crimes, including obstruction of
a criminal investigation*** misprision of a felony***
conspiracy to commit an offense or to defraud the
United States*** and unlawfully influencing a witness***.
And Dean's charges are consistent with other evidence
in the record that bears on the question of presidential
involvement (there is, of course, also evidence in the
record that would exonerate the defendant President of
such charges). In such circumstances, the Committee
would be derelict if it did not proceed to further
excunination of the President's complicity or lack
thereof, no matter how distasteful that task may be.
(Memo. 3) .
[T]he Committee's request, unlike that of the Special
Prosecutor, focuses on the President's own possible
criminality. (Supp. Memo. 2) .
For example, with the Dean-Presidential tapes in
hand, it would be much easier to determine the extent
of Presidential involvement in the Watergate affair.
(Affidavit of Senator Sam J. Ervin, Jr., p. 3) .
However, Congress is not a law enforcement or trial agency.
These are functions of the Executive and Judicial depart-
ments of the government. No inquiry is an end in itself;
it must be related to, and in futherance of, a legitimate
task of the Congress. The investigation conducted by the
Committee is in excess of the power conferred on Congress
by the Constitution and the movants have no lawful authority
to subpoena the tapes.
In a similar situation the Supreme Court in Kilbourn
V. Thompson , 103 U.S. 168 (1880), determined that the House
of Representatives had exceeded its authority in directing
one of its committees to investigate the circumstances
surrounding the bankruptcy of Jay Cooke and Company, in
which the United States had deposited funds. The com-
mittee became particularly interested in a private real
estate pool that was a part of the financial structure
- 40 -
845
and jailed Kilbourn for refusing to answer certain
questions about the pool and to produce certain books and
papers. The Court found that the subject matter of the
inquiry was "in its nature clearly judicial," 103 U.S. at
192, not legislative, and the House was exceeding the
limit of its own constitutional authority. Accordingly
the committee had no lawful authority to require Kilbourn
to testify as a witness or produce papers.
It is unquestionably the duty of all citizens to
cooperate with Congress in its efforts to obtain the facts
needed for intelligent legislative action and all citizens
unremitting obligation to respond to subpoenas. However,
this duty adheres only with respect to matters within the
province of proper investigation. Watkins v. United States ,
354 U.S. 178, 187-188 (1956). Here the Committee is acting
in excess of the power conferred on Congress by the
Constitution.
10 The Court in Kilbourn v. Thompson , 103 U.S. 168 (1880)
observed that:
It is believed to be one of the chief merits of the
American system of written constitutional law, that
all the powers intrusted to government, whether
State or national, are divided into the three grand
departments, the executive, the legislative, and
the judicial. That the functions appropriate to
each of these branches of government shall be vested
in a separate body of public servants, and that the
perfection of the system requires that the lines
which separate and divide these departments shall be
broadly and clearly defined. It is also essential
to the successful working of this system that the
persons intrusted with power in any one of these
branches shall not be permitted to encroach upon the
powers confided to the others, but that each shall by
the law of its creation be limited to the exercise
of the powers appropriate to its own department and
no other.
103 U.S. at 190-191.
- 41 -
846
The fundamental holding of Kilbourn was not impaired
by the subsequent cases of McGrain v. Daugherty , 273 U.S.
135 (1927), and Sinclair v. United States, 279 U.S. 263
(1929), so heavily relied upon by the Committee. In both
cases the Supreme Court expressly acknowledged the require-
ments that Congressional inquiries be related to a proper
legislative purpose. In McGrain, the Supreme Court found
that an inquiry into the conduct of the office of Attorney
General reflected legitimate legislative concerns and
upheld a subpoena of the brother of the former Attorney
General. Pointing out that the office of Attorney General
was "subject to regulation by Congressional legislation,"
and that the "only legitimate object the Senate could have
in ordering the investigation was to aid it in legislating,"
the Court concluded that, in view of the subject matter, it
would presume that legislation was the real object of the
investigation. 273 U.S. at 178. Similarly, in Sinclair,
the Court found that an inquiry into oil leases was properly
related to Congressional authority over public lands and
rejected, on the basis of the record, the factual argximent
that the investigation was not in aid of legislation.
The Supreme Court has quite under standaibly and wisely
sought to avoid the Constitutional trauma inherent in a
holding that Congress had exceeded its authority. But
Kilbourn, and the concept that a legislative purpose is an
indispensable prerequisite for a valid inquiry, are the
framework in which the Court has found other grounds for
declining to enforce Congressional subpoenas. Subsequent
cases have indicated that the "presumption" indulged by the
Court in McGrain may be overcome if the connection with a
proper legislative purpose becomes too tenuous. And the
- 42 -
847
Supreme Court has shown particular concern where Congres-
sional inquiries have threatened to encroach upon other
important Constitutional rights. See Watkins v. United
States, 354 U.S. 178 (1956); United States v. Rumely,
345 U.S. 41 (1953) .
In United States v. Rumely, 345 U.S. 41 (1953) , where
it was argued that the inquiry trespassed upon the First
Amendment, the Court said:
Whenever constitutional limits upon the investigative
power of Congress have to be drawn by this Court, it
ought only to be done after Congress has demonstrated
its full awareness of what is at stake by unequivocally
authorizing an inquiry of dubious limits.
345 U.S. at 46. The Court went on to hold that questions put
to the defendant exceeded the bounds of the resolution by the
House of Representatives creating the Committee — notwith-
standing the subsequent ratification of the Committee's
action by the House.
In Watkins v. United States, 354 U.S. 178 (1957), the
Supreme Court affirmed that:
No inquiry is an end in itself; it must be related
to, and in furtherance of, a legitimate task of the
Congress. Investigations conducted solely for the
personal aggrandizement of the investigators or to
"punish" those investigated are indefensible.
354 U.S. at 187. The Court cited Kilbourn for the proposition
that an investigation unrelated to legislative purpose would be
"beyond the powers conferred upon the Congress in the
Constitution" and Rumely for the proposition that "the
mere semblance of legislative purpose would not justify
an inquiry in the face of the Bill of Rights." 354 U.S. at
198. The Court held that the House Resolution in question
was so broad that the defendant could not fairly determine
whether the questions put to him were pertinent to the
Committee's inquiry.
- 43 -
848
In this case, as in Rumely and Watkins , there is
a collision between the Congressional pursuit of information
and an important Constitutional right. In Rumely and
Watkins the Supreme Court was concerned with the impact
of Congressional investigations upon First Amendment
freedoms. Here the investigation directly challenges the
Presidency. The importance of confidentiality to the
Office of the President, and the implications of seeking
to impose judicial control upon the conduct of that office,
are treated elsewhere in this brief. Certainly the preserva-
tion of the ability of Presidents to function is no less
crucial to our Constitutional system than the vindication
of First Amendment rights.
Watkins is important too for the flat and famous statement
in which the Court said: "We have no doubt that there is
no congressional power to expose for the sake of exposure."
345 U.S. at 200. Of course the Senate is authorized to
investigate campaign practices to see if legislation is
needed in that area. But every time a member of the
Committee speaks of the importance of "who said what to
whom" or "what the President knew and when," and everytime
the Committee's brief writers harp, as they do so
11 In Watkins the Court also pointed with envy to
England, where investigations of this kind are
entrusted to royal commissions, removed from the
turbulent forces of politics and partisan con-
siderations. "Seldom, if ever, have these com-
missions been given the authority to compel the
testimony of witnesses or the production of
documents." Nevertheless, they have, as the
Court noted, enjoyed "success in fulfilling
their fact-finding missions without resort to
coercive tactics * * *." 354 u.S. at 191-192.
- 44 -
849
repeatedly, on "the President's own possible criminality"
(Supp. Memo. 2) , they make it manifest that what they
are interested in here is "to expose for the sake of
exposure. "
B» The Enabling Resolution
Quite aside from the fact that the Senate Committee
has exceeded its legislative authority, it has also exceeded
the bounds of Senate Resolution 60. There is no language
in Senate Resolution 60 that can fairly be read as author-
izing the issuance of a subpoena to the President.
The Select Committee contends that the President was
encompassed within the authorization to subpoena an
"officer" of the executive branch. (Supp. Memo. 10) . However,
since no committee of Congress has ever subpoenaed a
President, could any member of the Senate suppose that a
^ grant of general subpoena power was intended to authorize
this wholly unprecedented action? As Professor Charles L.
Black stated:
Perhaps a lexicographically programmed computer
might print out the judgment that the President
is an "officer" or "employee" of the executive
branch. But that is not the way we construe
statutes. Is it not perfectly plain that such
language is entirely inapt, as a matter of
usage, to designate the President of the United
States.
Cong. Rec. E5321 (daily ed. Aug. 1, 1973) .
There are three points here that merit attention,
and that converge to indicate that Senate Resolution 60
cannot be read as authorizing a subpoena to the President
of the United States.
- 45 -
34-966 O - 74 - pt. 1 - 55
850
First, it is well estciblished in the context of
legislative investigations that the authority of the
investigating committee is to be construed in a way that
will avoid Constitutional questions if this is possible.
United States v. Rumely, 345 U.S. 41 (1953) .
Second, when Constitutional rights are at stake, the
legislative body that authorized the inquiry must make it
unmisteikably clear that it weints the particular information
that is being sought. Watkins v. United States, 354 U.S.
178 (1957) , is again much in point:
Protected freedoms should not be placed in danger
in the aibsence of a clear determination by the
House or the Senate that a particular inquiry is
justified by a specific legislative need.
* * *
The reason no court can make this critical judgment
is that the House of Representatives itself has
never made it. Only the legislative assembly
initiating an investigation can assay the relative
necessity of specific disclosures.
354 U.S. at 205, 206.
That was the point also of Chief Justice Warren ' s
opinion in the companion case of Sweezy v. New Hampshire ,
354 U.S. 234 (1957). The New Hampshire Legislature had
set up the Attorney General as a one-man committee of the
legislature to investigate subversion, under a very broad
and vague resolution.
The Attorney General has been given such a sweeping
and uncertain mandate that it is his decision which
picks out the subjects that will be pursued, what
witnesses will be summoned and what questions will
be asked. In this circumstance, it cannot be stated
authoritatively that the legislature asked the
Attorney General to gather the kind of facts com-
prised in the subjects upon which petitioner was
interrogated .
354 U.S. at 253.
Finally, there is a settled and sensible rule in
construing general language, which was articulated by the
Court in United States v. United Mine Workers of America ,
46
851
12
330 U.S. 258, (1947) . The Court there held that the
general language of the Norris-LaGuardia Act did not
apply when ein injunction was sought by the United States,
since the statute did not in terms apply to suits by the
United States. Chief Justice Vinson said for the Court,
at 272-273:
There is an old and well-known rule that statutes
which in general terms divest pre-existing rights
or privileges will not be applied to the sovereign
without express words to that effect. It has been
stated, in cases in which there were extraneous
and affirmative reasons for believing that the
sovereign should also be deemed subject to a restric-
tive statute, that this rule was a rule of construc-
tion only. Though that may be true, the rule has been
invoked successfully in cases so closely simileir to
the present one, and the statement of the rule in
those cases has been so explicit, that we are inclined
to give it much weight here.
(footnotes omitted) .
We are not suggesting that the President is a sovereign,
,but his unique position in our Constitutional system is
such that a similar principle surely should apply, and a
Senate resolution should not be construed to deprive the
President of a privilege he has always had without explicit
12 For other applications of the proposition so well
stated in the Mine Workers case, see: F.P.C. v.
Tuscarora Indian Nation, 362 U.S. 99, 120 (1960);
Leiter Minerals v. United States, 352 U.S. 220,
224-226 (1957); United States v. Wittek, 337 U.S.
346, 358-359 (1949); United States v. Wyoming , 331
U.S. 440, 449 (1947); United States v. Stevenson,
215 U.S. 190 (1909); United States v. American Bell
Telephone Co., 159 U.S. 548, 553-555 (1895); LewiF"
V. United States, 92 U.S. 618, 622 (1875); United
States V. Herron, 20 Wall. (87 U.S.) 251, 263 (1873);
Dollar Savings Bank v. United States, 19 Wall. (86 U.S.)
227, 238-239 (1873).
- 47 -
852
language to that effect in the resolution. ^^
Given the long history in which neither House of
Congress has ever sxobpoenaed a President of the United
States, it is beyond belief that any member of the Senate,
when voting to authorize the Select Committee to direct
subpoenas to an "officer," had any thought that he was
voting to empower the Committee to take the unprecedented
cind unauthorized action that has led to the present
litigation.
This point is merely further emphasized by the failure
of the Committee to follow the procedure provided by
Resolution 60 in the event of noncompliance with a subpoena.
In such a case, S 3(a)(6) of the Resolution specifically
authorizes the Committee to make appropriate recommendations
to the full Senate. The Committee attempts to characterize
that section as merely providing a "wholly discretionary
option" to the Committee. (Supp. Memo. 12) . Once again, the
comments of Professor Black are instructive as to the
significcuice of § 3(a)(6):
Does not this language (at the very least when
applied to such an utterly iinique and politically
charged question as a "willful failure or refusal"
13 In Dollar Savings Bank v. United States, 19 Wall
(86 U.S.) 227, 239 (1873) the Supreme Court stated:
It is a familiar principle that the King is not
bound by any act of Parliament unless he be named
therein by special and paurticular words. The
most general words that can be devised***affect
not him in the least, if they may tend to restrain
or diminish any of his rights and interests***The
rule thus settled respecting the British Crown is
equally applicable to this government***It may
be considered as settled that so much of the royal
prerogatives as belonged to the King in his capacity
of parens patriae , or universal trustee, enters as
much into our political state as it does*** into the
principles of the British Constitution.
- 48 -
853
of the President himself) designate the exclusive
procedure to be followed by the Committee? Is it
not reasonable to infer from it a direction by
the Senate that the matter of possible contempt
be brought back to the whole Senate, for resolution
upon action? Is the expressed power to "make
recommendations" not an implied exclusion of
independent action by the Committee?
Cong. Rec. E5321 (daily ed. Aug. 1, 1973) (emphasis
in original) .
Heretofore no committee of Congress has asked the
courts to enforce a subpoena for it. Section 3(a)(6) of
S. Res. 60 indicates that the Senate contemplated that
usual procedures would be followed, and that the Senate
itself would be advised, if there were a question of non-
compliance with a subpoena, rather than that the Committee
would go off on a frolic and detour of its own. Here, as
in Reed v. County Commissioners , 277 U.S. 376 (1928) :
In the absence of some definite indication of that
purpose, the Senate may not reasonably be held to
' have intended to depart from its established usage.
Authority to exert the powers of the Senate to
compel production of evidence differs widely
from authority to invoke judicial power for that
purpose .
277 U.S. at 389.
The Committee lacks authority to bring this suit, both
because it is an attempt to expose for the seike of exposure,
and thus beyond the legitimate legislative functions of
the Committee, and because the Senate has not authorized
the Committee to subpoena or to sue a President.
VII. The President Has the Power to Withhold Information
From Congress the Disclosure of Which He Determines
to be Contrary to the Public Interest
Plantiffs have asked this Court to enforce subpoenas
purportedly issued to obtain information they claim is
relevant to their investigation. The President has refused
- 49 -
854
on the ground that he has determined disclosure would be
contrary to the public interest. His stated reason is the
importamce of maintaining confidential communications
between the President and his closest advisers. This Court
has recognized the importance of this confidentiality in
its opinion in Misc. No. 47-73. Opinion at 5 & n. 8. We
14
reassert the importance of that principle here, but before
dealing with it in detail it is necessary to discuss the basis
for plaintiffs' claim for the right to information and the
basis for the President's refusal to furnish it.
A. Basis for Executive Privilege
Plaintiffs refer in their "Historical Appendix" to a
series of instances where Presidents and their aides have
cooperated with Congressional requests for information.
Their analysis includes instances where either testimony
or docvunents were furnished to Congress by the Executive
on a voliintary basis. We do not doubt the accuracy of the
cinalysis, but wish only to point out that it is confined to
voluntary disclosures. Plaintiffs have not cited any
authority, either historical or legal, for the proposition
that a President can be compelled to furnish information
to the Congress. There is good reason for this. There
14 As his Ninth Defense to plaintiffs' Complaint, the
President asserted that the subpoena attached as
Exhibit D to plaintiffs' Complaint was so unreasonably
broad and oppressive as to make compliance impossible -
This should be obvious from the face of the svibpoena
itself. It specifies no time period and demands a
wide variety of records relating to 25 persons on a
number of different subjects. Compliance would re-
quire a complete review of virtually all records in
the White House. If the Court dismisses this matter
for want of jurisdiction or sustains the President's
claim of privilege, there will be no need to pursue
this issue. However, if it would be helpful to the
Court in reaching its decision appropriate affidavits
will be filed to sustain the President's position on
this issue.
- 50 -
855
^ . 15
is no such authority.
There are, however, many instances where Presidents
have refused to furnish information to Congress amd, in
each case, the refusal has been accepted.
The frequently exercised, long-standing freedom of
the executive to refuse demands by Congress for the
production of docui''<uments does not require extended
discussion. Under the Continental Congress, the relation-
ship between legislature and executive had been modeled
on the British system. The executive departments were,
in effect, answerable to the legislature, and could be
called on for an accounting. A resolution of the Continental
Congress creating the Department of Foreign Affairs, whose
head was appointed by and held office at the pleasure of
Congress , provided :
15 The only legal authorities upon which plaintiffs
rely are demands for information in connection
with legal proceedings. There the considerations
are quite different, as this Court has recognized
in its opinion in Misc. No. 47-73. Opinion at 6 n.
11. See also the quotation from Professor Corwin
set out at p. 3 above.
16 The Senate Committee suggests that the President
has somehow waived the privilege he now invokes by
virtue of allowing his aides to testify and by per-
mitting H. R. Haldeman to review several of the
tapes. (Mem.o. 28-33) . Such a suggestion hardly
merits comment beyond the observation that United
States V. Reynolds , 345 U.S. 1, 11 (1953) specifically
holds to the contrary . The Committee ' s feeble attempt
to distinguish that case (Motion for Summary Judgement
at 31-32) is unE>ersuasive . As Alexander Bickel has
decisively observed, "Far from being waived, the
privilege, it seems to me, is as much exercised when
information is released as when it is withheld."
Bickel, Wretched Tapes (cont.) , N.Y. Times,
August 15, 1973, p. 33.
- 51 -
856
That the books , records and other papers of the
United States, that relate to this department,
be committed to his custody, to which, and all
other papers of his office, any member of
Congress shall have access: provided that no
copy shall be taken of matters of a secret
nature without the special leave of Congress.
This was completely changed by the Constitution in
estiUslishing the three independent branches. See Wolkinson,
Demands of Congressional Committees for Executive Papers,
10 Fed. Bar J. 319, 328-330 (1949).
Since then there has arisen an often asserted, much
discussed, and well recognized privilege of the President
to deny Congress access to documents whenever either the
President or the head of a department has deemed it in the
public interest to do so. From the administration of
Washington to the present. Presidents have repeatedly
asserted the privilege, and, when forced to a showdown.
Congress has always yielded and ceased to press its
demands. ^^ A recent instance was the refusal of President
Truman to turn over to the House Committee on Un-American
17 The following is a partial list of examples of suc-
cessful assertions of the privilege, comprising
partly assertions by the President and partly
assertions by department heads :
President Date Type of Information
Refused
Washington 1796 Instructions to U. S.
Minister concerning
Jay Treaty.
Jefferson 1807 Confidential informa-
tion and letters re-
lating to Burr ' s
conspiracy.
Monroe 1825 Documents relating to
conduct of naval
officers.
Jackson 1833 Copy of paper read by
President to heads of
Departments relating
to removal of bank
deposits .
1835 Copies of charges
against removed public
official.
List of all appointments
made without Senate's
consent between 1829
and 1836, amd those
receiving salaries
without holding office,
- 52 -
857
Activities files relating to the federal employee loyalty
program. Directive of March 13, 1948, 13 Fed. Reg. 1359
(1948) .
President
Tyler
Tyler
Polk
Fillmore
Buchcuian
Lincoln
Grant
Hayes
Clevelcind
Theodore Roosevelt
Date Type of Information
Refused
1842 Names of members of 26th
and 27th Congress who
have applied for office.
1843 Colonel Hitchcock's report
to the War Department
dealing with alleged
frauds practiced on
Indians, and his views
of personal characters
of Indian delegates.
1846 Evidence of payments
made through State
Department on Presi-
dent's certificates,
by prior administration.
1852 Official information
concerning proposition
made by King of Sand-
wich Islands to transfer
Islands to U.S.
1860 Message to Protest to
House against Resolution
to investigate attempts
by Executive to influ-
ence legislation.
1861 Dispatches of Major
Anderson to the War
Department concerning
defense of Fort Siunter.
1876 Information concerning
executive acts per-
formed away from
Capitol.
1877 Secretary of Treasury
refused to answer
questions and to
produce papers con-
cerning reasons for
nomination of Theodore
Roosevelt as Collector
of Port of New York.
1886 Documents relating to
suspension and removal
of 650 Federal officials.
1909 Attorney General's reasons
for failure to prosecute
U.S. Steel Corporation.
Documents of Bureau of
Corporations , Department
of Commerce .
53
858
Reference to the unbroken record of successful assertions
of privilege in practice is particularly significant in this
area of separation of powers. In the construction of any
clause of the Constitution uninterrupted usage continuing
from the early days of the Constitution would be significant.
President
Coolidge
Hoover
Date
1924
1930
1932
Franklin D. Roosevelt 1941
1943
1943
1943
1943
Truman
1944
1945
1947
Type of Information
Refused
List of companies in
which Secretary of
Treasury Mellon was
interested.
Telegrams and letters
leading up to London
Naval Treaty.
Testimony and documents
concerning investiga-
tion made in Treasury
Department.
Federal Bureau of Investi-
gation reports .
Director, Bureau of
Budget, refused to
testify eind to pro-
duce files.
Chairman, Federal Com-
munications Coram. , and
Board of War Communica-
tions refused records .
General Counsel, Federal
Communications Commis-
sion, refused to pro-
duce records .
Secretaries of War and
Navy refused to fur-
nish documents, and
peirmission for Army and
Naval officers to
testify.
J. Edgar Hoover refused
to give testimony and
to produce President's
directive.
Issued directions to heads
of executive departments
to permit officers and
employees to give infor-
mation to Pearl Heurbor
Committee, but the
President's directive
did not include any
files or written material.
Civil Service Commission
records concerning
appliccints for positions.
See Wolkinson, Demands of Congressional Committees
for Executive Papers, 10 Fed. Bar J. 103, 147 (1949) .
More recent examples are described in Kramer & Marcuse,
Executive Privilege — A Study of the Period 1953-1960,
29 Geo. Wash. L. Rev. 623 (part 1) and 827 (part 2) (1961)
See also Younger, Congressional Investigations : A Study
in the Separation of Powers, 20 Univ. Pitt. L. Rev. 755
TT955y.—^
54 -
859
Both officers, lawmakers and citizens naturally
adjust themselves to any long-continued action of
the Executive Department — on the presumption
that unauthorized acts would not have been allowed
to be so often repeated as to crystallize into a
regular practice. That presumption is not reason-
ing in a circle but the basis of a wise and quieting
rule that in determining the meaning of a statute
or the existence of a power, weight shall be given
to the usage itself — even when the validity of
the practice is the subject of investigation.
United States v. Midwest Oil Co., 236 U.S. 459, 472-
473 (1915); United States v. MacDaniel, 7 Pet. (7 U.S.)
1, 13-14 (1833) . Here, moreover, because the doctrine of
separation of powers is not contained in express language
in the Constitution, Ex parte Grossman, 267 U.S. 87, 119
(1925) , and because the functioning of our Government
depends so largely upon limits on the powers of each
branch derived from practical adjustments based on a fair
regard by each for the necessities of the others, we think
that the historic usage is especially meaningful. "Even
constitutional power, when the text is doubtful, may be
established by usage." Inland Waterways Corp. v. Young,
309 U.S. 517, 525 (1940) .
These successful executive assertions of privilege
against Congress have frequently been acknowledged by
Congress itself. See-, e.g., H.Rep. No. 1595, 80th Cong.,
2d Sess., (1948), at 2-3,7. Even in the heat of contest
members of Congress have recognized the wifdom of acceding
to the Constitutional principles here asserted.
During the administration of President Hayes, for
exeunple, the House Judiciary Committee, under the chair-
manship of Benjamin F. Butler, pointed out that all
resolutions directed to the President relating to the
production of records properly would contain the clause
"if in his judgment not inconsistent with the public
- 55 -
860
interest." H.Rep. No. 141, 45th Cong., 3rd Sess.,
(1879), at 3. And the Conunittee continued, id. at 3
and 4 :
* * * whenever the President has returned (as
sometimes he has) that, in his judgment, it
was not consistent with the public interest
to give the House such information, no further
proceedings have ever been taken to compel the
production of such information. Indeed, upon
principle, it would seem that this must be so. The
Executive is as independent of either house of
Congress as either house of Congress is independent
of him, and they Ceuinot call for the records of
his action or the action of his officers against
his consent, any more than he can call for any of
the journals and records of the House or Senate.
The decision as to whether there should be compliance with
a particular request was the Executive's, the committee
stated :
Somebody must judge upon this point. It clearly
cannot be the House or its committee, because they
cannot know the importance of having the doings
of the executive department kept secret. The head
of the executive department, therefore, must be the
' judge in such case amd decide it upon his own
responsibility to the people, and to the House,
upon a case of impeachment brought against him for
so doing, if his acts are causeless, malicious,
willfully wrong, or to the detriment of the public
interests .
There are many other instances of Congressional recog-
nition of the executive privilege, vis-a-vis Congress,
including one which gave rise to a great Congressional
debate, occupying the Senate for almost two weeks, during
President Cleveland's first administration. 17 Cong.
Rec. 2211-2814 (1886). See Sen. Misc. Doc, Vol. 7, 52d
Cong., 2d Sess. (1886), at 235-243; 8 Richardson, Messages
emd Papers of the Presidents 375-383 (1886) ; 17 Cong. Rec.
4095 (1886) . In the course of this debate many past
examples of executive refusals to produce papers demanded
by Congress were discussed. See, e.g., 17 Cong.
- 56 -
861
Rec. 2622-2623 (1886). ^^
Particularly illvuninating is Congress's reaction to
the President's Directive of March 13, 1948, Fed. Reg.
1359 (1948) , relating to the loyalty program. At that
time, a joint resolution was introduced, H.J. Res. 342,
80th Cong., 2d Sess. (1948) purporting to direct all
executive departments and agencies to make available to
Congressional committees any information deemed necessary
to the committees for the performance of their wor)c.
The resolution was opposed on the ground that it was
unconstitutional. A strong minority report was filed in
the House, which stated in part;
The majority report recognizes that this issue
between the executive emd the legislative branch
is not a new one, but has been raised periodically
over the entire history of our Government and
without regard to the political affiliations of
the respective Presidents or the political com-
plexions of the Congresses whose authority in
this regard the Presidents challenged. There
can be no disputing this fact. There have been
made from time to time over the period of our
country's history requests and demands upon the
executive branch of our Government by the Congress
or its committees seeking information, to reveal
which, in the opinion of the executive branch,
would have been inconsistent with its duties in
this regard. On such occasions the executive
branch, as a matter of history, as a matter of
tradition, and as a matter of constitutional
prerogative, has declined to comply with such
requests or demands. Over the years. President
after President has asserted his prerogative in
this respect. By now it is well established
that under our tripartite form of government
neither the legislative nor the judicial branches
may question the Executive with respect to matters
within his province and as to which he , the
Executive, determines that response to the
questions would be contrary to the public interest.
H. Rep. No. 1595, 80th Cong., 2d Sess. (1948), at 7.
The resolution was ultimately passed by the House but died
18 This debate ended with the approval by the Senate,
in a vote on party lines , of resolutions condemning
the President and the Attorney General. No result
came from the resolutions. See 17 Cong. Rec. 2813-
2814 (1886).
- 57 -
862
in the Senate Committee on Expenditures in the Executive
Departments.
A more recent instance was the Congressional reaction
to President Kennedy's refusal to disclose the names of
Defense Department speech reviewers . Committee on Armed
Services, U.S. Senate, Military Cold War Escalation and
Speech Review Policies, 87th Cong., 2d Sess. (1962),
at 338, 369-370, 508-509, 725, 730-731. The
Senate Subcommittee, speeiking through Senator Stennis,
conceded :
We now come face to face and are in direct conflict
with the es'»;ablished doctrine of separation of
powers • * *
I know of no case where the Court has ever made
the Senate or the House surrender records from
its files, or where the Executive has made the
Legislative Branch surrender records from its
files — and I do not think either one of them
could. So the rule works three ways. Each is
supreme within its field, and each is responsible
within its field.
Id. at 512.
During the hearings on the nomination of the Honorable
Abe Fortas to be Chief Justice of the United States, Senator
Ervin began to question the nominee cibout his participation
in discussions with President Johnson that led to an order
sending federal troops into Detroit. Senator Er-vin then
said, however: "I will not insist upon your answer, because
it is a prerogative of communications in the executive branch
of the Government." Hearings before the Committee on the
Judiciary, U. S. Senate, Nominations of Abe Fortas and
Homer Thornberry, 90th Cong., 2d Sess. (1968), at 124. The
question was not answered. At a later point, in response
to a different question from Senator Ervin, Justice Fortas
answered:
- 58 -
863
Senator, I will not go into any conversations, either
to affirm them or to deny them, that I have had with
the President. I ask you please to understand that,
and please to excuse me. I know how easy it is to say
no, the President did not say something to me. But
the question is "What did he say?" would follow, cind
so on. I must ask you to indulge me to this extent.
I have endeavored Senator, and Mr. Chairman, to err,
if I erred, on the side of frankness and candor with
this committee. But I think that it is my duty to
observe certain limits, and one of those limits is
any conversation, either affirmance or denial, that
I may have had with the President of the United States.
Id. at 167-168. Later in the hearings. Senator McClellan
said to the nominee:
I am not quarrelling with your position that you
cannot say and do not want to say what conversations
you may have had with the President. I respect that
position if you wish to take it.
Id. at 225. At no point in the hearings did any Senator
disagree with these views of Senator Ervin, Justice Fortas,
and Senator McClellan.
During the hearings before the Senate Judiciary Committee
relating to the nomination of Mr. Richard G. Kleindienst as
Attorney General, Mr. Peter Flanigan, Special Assistant to the
President, was invited to appear and testify about ITT matters.
The Counsel to the President responded by pointing out that
under the doctrine of separation of powers and long established
historical precedents, members of the President's immediate
staff do not appear and testify before Congressional Committees
with respect to the performance of their duties. Thereafter,
the Senate Judiciary Committee adopted a resolution on April 18,
1972, in which it was agreed that Mr. Flanigan "is not required
to testify to any knowledge based on confidential communications
between him and the President or between him and other aides
of the President." Thereafter, a Presidential Assistant ap-
peared and testified to the matters agreed to. Hearings
before the Committee on the Judiciary, U. S. Senate,
- 59 -
864
Nomination of Richard G. Kleindienst, of Arizona, to be
Attorney General . 92nd Cong., 2d Sess. (1972), at 1630-1631.
B. The Need for Confidentiality
There has long been general recognition that high
officers in every branch of government cannot function
effectively unless they are able to preserve the confi-
dentiality of their conununications with their intimate
advisers. In Environmental Protection Agency v. Mink,
410 U.S. 73, 87 (1973), the Court quoted with approval
the statement of Justice Reed, sitting by designation in
the Court of Claims, in Kaiser Aluminum & Chemical Corp.
V. United States, 157 F.Supp. 939, 946 (Ct.Cl. 1958):
There is a public policy involved in this claim of
privilege for this advisory opinion — the policy
of open, frank discussion between subordinate and
chief concerning administrative action.
Discussions of this kind are regarded as privileged
"for the benefit of the public, not of executives who
may happen to then hold office," id. at 944, since it
is the public that is served when those who represent it
are able to make important decisions with the wisdom that
only open and frank discussion can provide. Judge Robinson
has spelled out this point more fully:
This privilege, as do all evidentiary privileges,
effects an adjustment between important but com-
peting interests. There is, on the one hand, the
public concern in revelations facilitating the just
resolution of legal disputes, and, on the other,
occasional but compelling public needs for confi-
dentiality. In striking the balance in favor of
nondisclosure of intra-governmental advisory and
deliberative communications, the privilege sub-
serves a preponderating policy of frank expression
and discussion among those upon whom rests the
responsibility for making the determinations that
enable government to operate, and thus achieves an
objective akin to those attained by other privileges
more ancient and commonplace in character. Nowhere
is the public interest more vitally involved than
in the fidelity of the sovereign's decision and
policymaking resources.
- 60 -
865
Carl Zeiss Stiftung v. Vj_ E^ B^ Carl Zeiss, Jena, 40 F.R.D.
318, 324-325 (O.D.C. 1966), affirmed on the opinion below
384 F.2d 979, cert, denied 389 U.S. 952 (1967). See also
5 U.S.C. § 552 (b) (5) ; Rogers, The Right to Know Government
Business From the Viewpoint of the Government Official,
40 Marq.L.Rev. 83, 89 (1956).
This case concerns the cibility of the President to
enjoy confidentiality in carrying out his official duties.
But this important privilege is not one that is available
only to assist the functioning of the President, or the
Executive Branch generally. As Judge Wilkey recently wrote,
"the privilege against disclosure of the decision-making
process is a tripartite privilege, because precisely the
same privilege in conducting certain aspects of public
business exists for the legislative and judicial branches
as well as for the executive." Soucie v. David, 448 F.2d
1067, 1080 (1971) (concurring opinion).
Although Professor Arthur Selwyn Miller and a
collaborator have recently argued to the contrary. Miller
6 Sastri, Secrecy and the Supreme Court; On The Need for
Piercing the Red Velour Curtain, 22 Buff. L. Rev. 799 (1973) ,
it has always been recognized that judges must be able to
confer with their colleagues, and with their law clerks,
in circumstances of absolute confidentiality. Justice
Brennan has written that Supreme Court conferences are held
in "cQssolute secrecy" for "obvious reasons." Brennan,
Working at Justice, in An Autobiography of the Supreme
Court 300 (Westin ed. 1963) . Justice Frankfurter had said
that the "secrecy that envelops the Court's work" is
"essential to the effective functioning of the Court."
Frankfurter, Mr. Justice Roberts , 104 U.Pa.L.Rev. 311, 313
(1955) . And only two years ago Chief Justice Burger
analogized the confidentiality of the Court to that of
the Executive , and said :
No statute gives this Court express power to establish
and enforce the utmost security measures for the
- 61 -
34-966 O - 74 - pt. 1 - 56
866
secrecy of our deliberations and records. Yet I have
little doubt as to the inherent power of the Court
to protect the confidentiality of its internal opera-
tions by whatever judicial measures may be required.
New York Tiroes Co. v. United States, 403 U.S. 713, 752 n. 3
(1971) (Burger, C.J. dissenting).
The Judiciary wor)ts in conditions of confidentiality
and it claims a privilege against giving testimony about
the official conduct of judges. Statement of the Judges ,
14 F.R.D. 335 (N.D.Cal. 1953). See also the letter of
Justice Tom C. Clark, refusing to respond to a subpoena
to appear before the House Un-American Activities Committee,
on the ground that the "complete independence of the judi-
ciary is necessary to the proper administration of justice."
N. Y. Times, Nov. 14, 1953, p. 9.
A similar need for confidentiality, and an insistence
that it cannot be breached by other branches of government,
cipplies in the Legislative Branch. Neither a Member of
Congress nor his legislative aides can be compelled to
disclose communications between the Member and his aides
relating to any legislative act of the Member. Gravel v.
United States, 408 U.S. 606, 629 (1972) . It is immaterial
that these communications might show criminal acts. 408 U.S.
at 615. These aspects of the Gravel decision reflect in
large part acceptance by the Court of the arguments pre-
sented by Senator Ervin and seven other Senators on behalf
of the Senate as amicus curiae in that case. As reprinted
in the Congressional Record, the ctmicus brief argued in part:
To isolate a Senator so that he cannot call upon the
advice, counsel and knowledge of his personal
assistants is to stop him from functioning as an
independent legislator. If an aide must fear that
the advice he offers, the )cnowledge he has, and the
assistance he gives to his Senator may be called
into question by the Executive, then he is likely to
refrain from acting on those very occasions when the
issues are the most controversial and when the Senator
is most in need of assistance.
The Congressional privilege based upon an express
Constitutional provision to encourage the free ex-
change of ideas and information can hardly be less
extensive than the Executive privilege which has
- 62 -
867
not express statutory or Constitutional basis and
whose sole purpose is secrecy. Yet the Executive
privilege has been extended to the activities of
persons whose relationship to the President is far
more remote than the relationship of an aide to
a Senator.
The need for protecting the confidential relationships
between the President and his aides, as the Government
has asserted in defending the Executive privilege, is
pari passu applicable to the need for protecting the
relationship between Senators and their aides.
Cong. Rec. S5856, S5857 (daily ed. April 11, 1972).
Again it is the long established practice of each
House of Congress to regard its own private papers as
privileged. No court subpoena is complied with by the
Congress or its committees without a vote of the House
concerned to turn over the documents. Soucie v. David,
448 F.2d 1067, 1081-1082 (1971). This practice is
insisted on in Congress even when the result may be to
deny relevant evidence in a criminal proceeding either
'to the prosecution or to the accused person. ^^
19 See, e.g., 108 Cong. Rec. 3626 (1962), showing Senate
adoption of a resolution permitting staff members
and former staff members of a Senate Committee to
appear and to testify in a criminal proceeding against
James Hoffa but forbidding them from taking any docu-
ments or records in the custody of the Senate and
from testifying about information that they gained
while employed in the Senate. In explaining the
resolution to the Senate, Senator McClellan said in
part: "The Senate recognizes it has certain privileges
as a separate and distinct branch of Government, which
it wishes to protect." Id. at 3627.
On July 16, 1970, counsel for 1st Lt. William L.
Calley, Jr., moved in his court-maxtial proceeding
for production of testimony concerning the My Lai
incident that had been presented to a subcommittee
of the House Committee on Arm»d Services in executive
session. Lt. Calley claimed that this testimony
would be exculpatory of him and would help him es-
tablish his defense in the court-martial. The sub-
committee Chairman, Rep. F. Edward Hebert, refused
to make the testimony available, advising defense
counsel on July 17, 1970, that Congress is "an
independent branch of the Government, separate from
but equal to the Executive and Judicial branches , "
and that accordingly only Congress can direct the
disclosure of legislative records. He concluded from
this that the material requested by the defense was
not within the rule of Brady v. Maryland, 373 U.S. 83
(1963) , nor subject to the requirements of the Jencks
Act, 18 U.S.C. § 3500. Subsequently the military
court issued a subpoena to the Clerk of the House of
Representatives. The Speaker laid this before the
House on November 17, 1970, 116 Cong. Rec. 37652
(1970) , but to date the House has taken no action
nor given ciny indication that it will supply the
information sought.
- 63 -
868
These considerations of public policy are particu-
larly compelling when applied to Presidential communica-
tions with his advisers.
Inseparable from the modern Presidency, indeed
essential to its effective operation, is a whole
train of officers and offices that serve him as
eyes, ears, arms, mouth, and brain.
Rossiter, The American Presidency 97 (1956) . Nor is it
only those who are part of his staff with whom the President
must be able to talk. He must be able to confer with
foreign leaders and with representatives of every element
in American public. He must be free to lock for advice
to anyone whose advice he trusts, whether in or out of
government. The late Dean Acheson and former Justice
Abe Fortas are merely recent and conspicuous exetmples
of persons who were consulted by Presidents on critical
public issues at times that they held no public office.
"The President is, as he should be, entirely free, * * *
like all who preceded him, to take counsel with private
citizens." Id. at 103.
For the Presidency to work effectively and for the
President to get candid advice from those to whom he turns
it is absolutely essential that he be able to protect the
confidentiality of these communications. As stated by
the President on July 6, 1973, in his letter to Senator
Sam J. Ervin:
No President could function if the private papers of
his office, prepared by his personal staff, were open
to public scrutiny. Formulation of sound public
policy requires that the President and his personal
staff be able to communicate among themselves in
complete candor, and that their tentative judgments,
their exploration of alternatives, and their frank
comments on issues and personalities at home and
abroad remain confidential.
This has been the position of every President in our
history, and it has been specifically stated by President
- 64 -
869
Nixon's immediate predecessors. Writing his memoirs in
1955, President Trximan explained that he had found it
necessary to omit certain material, and said: "Some of
this material cannot be made available for many years,
perhaps for many generations." 1 Truman, Memoirs x (1955).
President Eisenhower stated the point with force on July 6,
1955, in connection with the Dixon-Yates controversy:
But when it comes to the conversations that take place
between any responsible official and his advisers or
exchange of little, mere little slips of this or
that, expressing personal opinions on the most confi-
dential basis, those are not subject to investigation
by anybody, and if they are, will wreck the Government.
There is no business that could be rvin if there would
be exposed every single thought that an adviser might
have, because in the process of reaching an agreed
position, there are many, many conflicting opinions to
be brought together. And if any commander is going to
get the free, unprejudiced opinions of his subordinates,
he had better protect what tney have to say to him on
a confidential basis.
Public Papers of Presidents of the United States: Dwight
' D. Eisenhower 1955 674 (1959).
Congress itself recognized the high degree of confi-
dentiality that must attach to Presidential papers for many
years when it enacted the Presidential Libraries Act of 1955,
Pub. L. 84-373, 69 Stat. 695 (1955), now codified in 44
U.S.C. §§ 2107, 2108. That statute encourages Presidents
to give their papers to a Presidential library, and provides
that papers, documents, and other historical materials so
given "are subject to restrictions as to their availability
eind use stated in writing by the donors or depositors* * *.
The restrictions shall be respected for the period stated,
or until revoked or terminated by the donors or depositors
or by persons legally qualified to act on their behalf."
44 U.S.C. § 2108(c); Nichols v. United States, 460 F.2d
671 (10th Cir. 1972). Since that Act was passed the gifts
- 65 -
870
of Presidential papers of Presidents Eisenhower, Kennedy,
and Johnson have all specified that "materials containing
statements made by or to" the President are to be kept "in
confidence" and are to be held under seal and not revealed
to anyone except the donors or archival personnel until
"the passage of time or other circumstances no longer
require such materials being kept under restriction."
Letter of April 13, 1960, from President Dwight D.
Eisenhower to the Administrator of General Services;
Agreement of Feb. 25, 1965, between Mrs. Jacqueline B.
Kennedy and the United States; Letter of Aug. 13, 1965,
from President Lyndon B. Johnson to the Administrator of
General Services. In addition, the letters from President
Eisenhower and from President Johnson specifically prohibit
disclosure to "public officials" and state, as the reason
for these restrictions, that "the President of the United
States is the recipient of many confidences from others,
and * * * the inviolability of such confidence is essential
to the functioning of the constitutional office of the
Presidency * * * . "
The need to preserve the confidentiality of the Oval
Office has been recognized from without as well as by those
who have borne the burdens of service there. What Justice
Stewart, who was joined by Justice White, said in his con-
curring opinion in New York Times Co. v. United States ,
403 U.S. 713, 727 (1971), has great force:
And within our own executive departments, the develoj>-
ment of considered and intelligent international
policies would be impossible if those charged with
their formulation could not communicate with each
other freely, frankly, and in confidence. * * *
* * * Il]t is clear to me that it is the constitutional
duty of the Executive — as a matter of sovereign
prerogative and not as a matter of law as the courts
know law — through the promulgation and enforcement
- 66 -
871
of executive regulations, to protect the confiden-
tiality necessary to carry out its responsibilities
in the fields of international relations and national
defense.
403 U.S. at 728, 729-730.
Of course international relations and national defense
have very special claims to secrecy, but the importance
of the President being able to speak with his advisers
"freely, frankly, and in confidence" is not confined to
those matters. It is just as essential that the President
be able to talk openly with his advisers about domestic
issues as about military or foreign affairs. The wisdom
that free discussion provides is as vital in fighting
inflation, in choosing Supreme Court Justices, in deciding
whether to veto a large spending bill, and in the myriad
other important decisions that the President must make in
his roles as Chief of State, Chief Executive, and Chief
Legislator as it is when he is acting as Chief Diplomat or
as Commander in Chief. Any other view would fragment the
executive power vested in him and would assume that some
of his Constitutional responsibilites are more important
than others. It is true that the President has more sub-
stantive freedom to act in foreign and military affairs
then he does in domestic affairs, but his need for candid
advice is no different in the one situation than in the other.
20 There are serious weaknesses in the assumption,
popular among liberals who happen at the moment
not to be thinking cibout Senator McCarthy , that
public policy ought to draw a sharp distinction
between "military auid diplomatic secrets" on the
one hand and all other types of official informa-
tion on the other, giving Congress free access to
the latter. In the first place, the line is by
no means easy to draw, even when the best of faith
is used * * *. More fundamentally, however, the
executive's interest in the privacy of certain
other types of information is not less than its
interest in preserving its military jmd diplomatic
secrets . One obvious example is the data , derog-
atory or otherwise, in the security files of in-
dividuals. Another, perhaps still more importcuit,
is the record of deliberations incidental to the
making of policy decisions.
Bishop, The Executive ' s Right of Privacy: An
Unresolved Constitutional Question, 66 Yale L. J.
477, 488 (1957).
- 67 -
872
Former Justice Fortas, who advised President Johnson
on both foreign and domestic matters, has said that a
President must have "confidence that he can have advisers
to whom he can trust his inmost thoughts. A President
has to have this, just as a citizen can go to a doctor or
a lawyer, a priest or a psychiatrist, to discuss his
problems, without fear of disclosure of his confidences."
Fortas, The Presidency As I have Seen It, In Hughes, The
Living Presidency 335 (1973). ^^
All that we have said on this point was succinctly put
by a distinguished Constitutional lawyer, Charles L.
Black, Jr. , who has recently observed that refusal to
disclose communications of the kind involved in this liti-
gation is not only the President's lawful privilege, but
It is hard for me to see how any person of common
sense could think that those consultative and
decisional processes that are the essence of the
Presidency could be carried on to any good effect, if
, every participant spoke or wrote in continual awareness
that at any moment amy Congressional committee, or any
prosecutor working with a grand jury, could at will
command the production of the verbatim record of every
word written or spoken.
21 This need has been perceived also by political
scientists.
Although some of President Truman's "cronies"
were poorly equipped for this service, their
indiscretions did not destroy a President's
need for personal adviser's * * *. There can be
no doubt that men like House and Hopkins perform
an essential function. Ideally, they are both
intimates of the President and experts in public
affairs. But perhaps their most significant
contributions are made as presidential intimates.
The President needs to discuss with a sympathetic
person ideas and plans that are still in an
amorphous state and to gain some respite from the
cares of office by talking over trivial matters
that interest him or by chatting about men of
affairs, with the confidence that his remarks will
not go beyond the room.
Carr, Bernstein, Morrison, Snyder, & McLeeUi, American
Democracy in Theory and Practice 609-610 {19567^1
- 68 -
873
Black, Mr. Nixon, the Tapes and Coinition Sense, N. Y. Times,
Aug. 3, 1973, p. 31. See also the fuller expression of
Professor Black's view in Cong. Rec. E5320-E5322 (daily ed.
August 1, 1973) .
What we have said in this portion of the brief
is frequently put on the basis of separation of powers.
Yet it is probable that the point we have made goes beyond
the separation of powers arguments eind rests on a proposi-
tion even more fundamental . Even though no separation of
powers issue would be involved, we suggest that it would
be as inadmissible for one federal court to inquire into
discussions between a judge of another federal court and
his law clerk as it would be if the inquiry were to come
from a committee of Congress. Similarly, we cannot conceive
that one Congressional committee could require production
of the private papers of another Congressional committee
any more than a court could require these. What is really
at stake is the ability of Constitutional officers of
government to perform their duties under conditions that
will make it possible for them to function to the best of
their ability. For this goal to be achieved, the ability
to preserve the confidentiality of communications with
close advisers is absolutely essential.
VIII . Conclusion
One noteworthy characteristic of the plaintiffs ' argument
is its candor. Few words are minced in delineating the central
purpose of this proceeding : to discover evidence from the
President's records, indeed from his own private conversations,
that might establish Presidential complicity in the commission
of serious crimes. Objections to legislative inquiry into the
- 69 -
874
innocence or guilt of individuals are formidable in any case.
There is, we submit, a categorical bar to compulsory process
designed to elicit evidence of criminal conduct on the part
of the President of the United States, for he is answerable
in only one Constitutional proceeding. That proceeding re-
quires the deliberate action of the whole Congress under the
Impeachment Clause, not the filing of a discretionary suit by
a Select Committee of the Senate under a general enabling
resolution.
In the related litigation to compel production of certain
of the Presidential recordings, the argument of the Special
Prosecutor and the relief grsmted by this Court both acknowledged
and were at pains in attempting to preserve the right of
confidentiality upon which the functioning of the Presidency
crucially depends. We do not believe the decision in that
case can stand because we do not believe the President's
responsibility and power to make Presidential judgments can
be vested in the Judiciary, no matter how limited or verbally
hedged the infringement of power may be.
This case, however, involves much greater steps toward
dissolution of the lines that separate the co-equal branches
of our Constitutional system. It is a commentary on the in-
fectious spirit of Watergate that the pending action, deriving
whatever strength it has from this Court's earlier decision,
threatens such a rapid reduction in an historically protected
area of Presidential power. The most damaging of the con-
sequences that we warn against in the related litigation would
be, quite literally, upon us if the relief sought by the plain-
tiffs in this case were to be granted and sustained.
But if the plaintiffs' arguments are a commentary on the
spirit of Watergate, the limits on this proceeding are a com-
mentary on the inherent wi sdom of the rules governing the
jurisdiction of federal courts. For as previously noted by
- 70 -
875
the Court, the question of jurisdiction is indeed "a roost
important question in this case." (Tr. Hearing of Sept. 6,
1973, p. 11) And as shovm by this submission the plaintiffs
must overcome a number of jurisdictional objections if they are
to obtain the requested relief. They must estctblish:
(a) That the matter is a justiciable case or controversy
and not essentially a political question;
(b) That the claim falls within a specific statutory
grant of subject matter jurisdiction;
(c) That the court has in personcun jurisdiction over
the President;
(d) That the Committee is performing a valid legislative
function in subpoenaing tape recordings of confidential Presi-
dential conversations; and
(e) That the Committee is not exceeding the scope of its
authority under Senate Resolution 60.
It is obvious, but bears emphasis, that the failure of
plaintiffs to meet any one of these jurisdictional objections
is fatal to their claim. Far from dischcurging the cumulative
burden of cinswering each cind every one of these objections,
plaintiffs have failed to satisfactorily answer any of them.
For all of the foregoing reasons, judgment should be
entered on behalf of the President.
Respectfully submitted.
Of Counsel
RICHARD A. HAUSER
K. GREGORY HAYNES
PAUL S. TRIBLE, JR.
GEORGE P. WILLIAMS
LEONARD GARMENT
J. FRED BUZHARDT
CHARLES ALAN VJRIGHT
DOUGLAS M. PARKER
ROBERT T. ANDREWS
THOMAS P. MARINIS, JR.
Attorneys for the President
The White House
Washington, D.C.
Telephone Number :
71
20500
456-1414
876
CERTIFICATE OF SERVICE
I, Thomas P. Marinis , Jr., hereby certify that on
the 24th day of September, 197 3, copies of the foregoing
Brief in Opposition to Plaintiffs' Motion for Summary
Judgment were hand-delivered to the office of
Samuel Dash, Esq.
Chief Counsel
Senate Select Committee
on Presidential Campaign Activities
United States Senate
Washington, D.C. 20510
Thomas P. Marinis, Jr.
877
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
I
SENATE SELECT COMMITTEE ON PRESIDENTIA^ )
CAMPAIGN ACTIVITIES, et al
Plaintiffs
RICHARD M. NIXON,
individually and as President of the United States
Defendant
f::.:ij
SEP 2 8 1973
J^.ViS F. DAV-^'
i t
CUiKX
Civil Action
No, 1593-73
PLAINTIFF'S REPLY MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
Samuel Dash
Chief Counsel •
Fred D, Thonnpson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B, Stewart
Special Counsel
Donald S. Burris
Assistant Counsel
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D.C.
of Counsel
Arthur S. Miller
Chief Consultant to
the Select Committee
of Counsel
William X Mayton
Assistant Counsel
Ronald D. Rotunda
Assistant Counsel
United States Senate
Washington, D.C. 20510
Telephone Number 225-0531
Attorneys for Plaintiffs
878
Table of Contents
I. The Committee's S uit is Fully Justiciable 3
II. The Committee, in Investigating and
Exposing Criminality in the Executive
Branch, Is Acting Fully within its
Powers under the Constitution and its
Enabling Resolution 9
A. Constitutional Requirements 9
B. Enabling Resolution U
III. The Court Has Jurisdiction Over the
Controversy 14
Section 1331 14
Section 1345 15
Article III 16
Section 1361 17
Administrative Procedure Act 17
IV. The President is not Privileged to Disobey
the Committee's Subpenas 19
Conclusion 24
Exhibit: Letter of September 11, 1973, from Henry E.
Petersen, Assistant Attorney General, to Richard H.
Ichord, Chairman of Committee on Internal Security,
House of Representatives.
879
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
Defendant
Civil Action
No. 1593-73
PLAINTIFFS' REPLY MEMORANDUM IN
SUPPORT OF MOIION FOR SUMMARY
JUDGMENT
This memorandum responds, with as much brevity as is possible,
to defendant President's Brief in Opposition to Plaintiffs Motion for
Summary Judgment. We detail below the specific areas where we take
issue with the President, but a few initial observations are in order.
First, the President does not dispute any of the facts set forth
in plaintiffs' Statement Of K&terial Jkcts As To Wiich There Is No Genuine
Issue. Accordingly, these facts are established for the purposes of this
motion and, no factual dispute appearing, the case is ripe for summary
judgment. See Rule 56 (e), F.R. Civ, P. and Local Rule 1-9 (g).
Second, the President's Brief almost totally ignores this Court's
* /
ruling in Misc. No. 47-73 which, as formerly noted (Supp. Mem, 1-2),—
effectively resolves many of the fundamental issues in the present case.
Likewise largely ignored is plaintiffs' central contention that executive
privilege cannot be used to suppress evidence that bears on the President's
*/ Supp. Mem. refers to "Supplementary Memorandum in Support of
Plaintiff's Motion for Summary Judgment" filed by the Select Committee
on September 18, 1973.
880
2-
own criminality, a proposition the President's counsel cannot dispute and
have elsewhere conceded. Further, the Brief in Opposition nearly
overlooks plaintiffs' argument that the President has completely waived
any claim of confidentiality he may have had regarding the materials under
subpena.
Instead, the President's counsel focus mainly on technical and
jurisdictional objections to this suit in order to avoid an adverse decision
on the merits. These objections are without merit and fail to meet our
previous showing (Supp. Mem.) that the merits of this case are properly
before the court and must be decided in the Committee's favor.
881
I. The Committee's Suit is Fully Justiciable
The Brief in Opposition argues at length (pp. 10-Zl) that the
Committee's suit is nonjusticiable because courts are impotent to pass on
the issue of executive privilege. Stripped of rhetoric, this argument
rests on the bald assertion by the President of an "exclusive and unre-
viewable power" to invoke such privilege (Br. 16). That assertion
ignores the controlling decisions of the Supreme Court and the Court of
Appeals for this Circuit, as well as this Court's ruling in Misc. No. 47-73,
If it were indeed true that the President enjoyed the "exclusive
and unreviewable power" of executive privilege which he claims, there
would be considerable merit in the argument that the present suit is
*J
nonjusticiable. But as we have already shown (Mem. 8-10), the law
is otherwise. Thus in Reynolds v. United States, 345 U.S. 1 (1953), the
Supreme Court held that the "court itself must determine whether the
circumstances are appropriate for the claim of /_ executive/ privilege, "
because "judicial control" over evidence "cannot be abdicated to the
caprice of executive officers. " 345 U.S. at 8, 9-10. This principle was
reiterated by the Court of Appeals for this Circuit in Committee for Nucleai
Responsibility V. Seaborg , 149 U.S. App. D.C. 385, 388-89, 463 F. 2d
788, 791-92, (1971), which flatly rejected the claim of absolute executive
privilege to withhold communications to the President. In its decision
in Misc. No. 47-73, this Court recognized and reaffirmed the power
of the Judiciary to pass on claims of executive privilege, holding that
the "availability of evidence including the validity and scope of privileges,
is a judicial decision" and that "Executive fiat is not the mode of
** /
resolution. " (Op. 5, 6. )
* /"Mem, " refers to the "Memorandum of Points and Authorities in
Support of Motion for Summary Judgment'filed by the Select Committee
on August 29, 1973.
**/ "Op. " refers to Opinioo, Misc. No. 47-73.
34-966 O - 74 - pt. 1 - 57
882
-4.
Following this Court's adverse ruling in Misc. No. 47-73, counsel
for defendant President have scoured the text of the Constitution in a
belated effort to prop up their discredited claim of unreviewable executive
privilege. Invoking the test of Powell v. McCormack, 395 U.S. 486, 519
(1969), their Brief asserts that a "textually demonstrable commitment" to
the Executive of unreviewable privilege may be found in the constitutional
provisions requiring the President to take "Care that the Laws be
faithfully executed " and to give "Congress Information of the State of the
Union, " and in the provisions vesting "executive power" in the President
and empowering him to require the "Opinion in writing of the principal
Officer in each of the executive Departments" on official matters (Br. 15,
13).
These provisions fall far short of meeting the exacting test of a
"textually demonstrable commitment of the issue to a coordinate political
department " which Powell held is necessary to insulate a matter from
** /
judicial review. None of these provisions so much as mentions
secrecy, or invests the President with an evidentiary privilege similar
to that accorded Congress under the Speech and Debate Clause. It is
fatuous to argue for example, that a provision requiring the President
*_l Each of these arguments would apply equally to the Special Prosecutor's
case, yet defendant President does not explain why they are asserted
solely as a bar to the Committee's suit. Moreover, these efforts to show
a "textually demonstrable commitment" of unreviewable prerogative to the
Executive Branch are inconsistent with the subsequent admission in their
Brief (p. 55) that "the doctrine of separation of powers is not contained in
express language in the Constitution. " ("Br. "refers to "Brief of
Richard M Nixonin Opposition to Plaintiffs' Motion for Summary Judgment"
filed by the defendant President on September 24, 1973.) ~~
**/ In Powell , the Court refused to find that the constitutional provision
making each House "the Judge of the ...Qualification of its own Members"
constitutes a "textually demonstrable commitment" to each House of
power to exclude members for official misconduct.
883
-5-
to furnish Congress information on the State of the Union is authority
to withhold information fronn Congress, or that the President's
duty faithfullyto e:Kfecute the laws empowers him to suppress evidence of
Executive lawbreaking. Such arguments amount to nothing more than a
last-ditch grasping at verbal straws. In the face of controlling decisions
such as Reynolds and Soucie v. David, 448 F. 2d 1067 (1971), as well as
this Court's decision in Misc. No. 47-73, they are unavailing. The
Constitution neither explicitly nor implicitly vests the President with an
unreviewable prerogative of executive privilege.
_ See R. Berger, Executive Privilege v. Congressional Inquiry, 12
U. C. L. A. L. Rev. 1044, 1076-77 (1965).
**/ As Powell makes clear, the existence of a "textually demonstrable com-
mitment to a coordinate branch" is the central factor in determining
whether a controversy such as this is nonjusticiable. While the Brief
in Opposition also relies on other features of the "political question"
doctrine in an effort to bar this suit, Powell casts doubt on the relevance
of these other considerations if a "textually demonstraba le " commitment
is lacking. Moreover, Powell also demonstrates that these other features
are not present here.
It is asserted (Br. 18, 16) that the present suit is nonjusticiable
becasue it may create "a potentially embarassing confrontation between
coordinate branches, " and involves an "initial policy determination of a
kind clearly for nonjudicial discretion. " But, as in Powell:
"/ Decision of the present cas^/ would require no nnore than
an interpretation of the Constitution. Such a determination
falls within the traditional role accorded courts to interpret
the law, and does not involve a 'lack of the respect to _/~a_7
CO- ordinate _/" branch / of government, nor does it involve
an initial policy determination of a kind clearly for non-judicial
discretion. ' Baker v. Carr, 369 U. S. 186, at 217. Our
system of governnnent requires that federal courts on occasion
interpret the Constitution in a manner at variance with the
construction given the document by another branch. The
alleged conflict that such an adjudication may cause cannot
justify the courts' avoiding their constitutional responsibility. "
395 U. S. at 548-549.
It is also asserted that the issue at bar raises the possibility of
"multifarious pronoucements " by various departments on the same
question (Br. in 21), but, as Powell teaches, this possibility cannot
arise because "it is the responsibility of _rthe judiciary /"to act
as the ultimate interpreter of the Constitution. Marbury vT Madison.
I Cranch. 137 (1803) 395 U. S. at 549.
( Footnote continued on the following page.)
884
■ 6-
The Brief in Opposition also contends (p. 20) that the Court is
impotent to decide this controversy because it involves a "clash of power
between two branches of government" and that to "resolve the confrontation
the Court must necessarily declare that one power is greater than its
counterpart. " Again, this argument simply disregards and is flatly
contradicted by the controlling authorities discussed in our Memorandum
(pp. 6-7), as well as this Court's decision in Misc. No. 47-73.
Thus, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952) , the Supreme Court held that the President's seizure of the nation's
steel mills unconstitutionally invaded the legislative powers of Congress.
In Myers v. United States, 272 U.S. 52 (1926) and United States v. Lovett,
328 U.S. 303 (1946), the Court accepted the Executive's contention that
Congress had exceeded its constitutional powers. See also, Humphrey's
Executor (Rathbun) v. United States, 295 U.S. 602 (1935), (congressional
statute held to bar asserted constitutional removal power of President);
The Pocket Veto Case, 219 U.S. 655 (1924) (congressional challenge to
constitutionality of pocket veto rejected). Each of these cases involved
a "clash of power between two branches of government" yet in each of thenn
the Supreme Court displayed no hesitation in declaring that "one power" was
"greater than its counterpart" with respect to the matter in controversy.
(Footnote -continued from preceeding page.)
Contrary to defendcint' s assertion (Br. 17), there are "judicially
discernible and manageable standards" for resolving the present controver-I
sy. As Reynolds, Soucie, and the other authorities cited in our initial
memorandum (pp. 8-10,21-27) demonstrate, the courts have long passed on
claims of executive privilege and developed standards to assess their valid-
ity.
Finally, it is asserted (Br. 19-20) that the present controversy is
nonjusticiable because the courts lack physical power to enforce process
against the President. In Misc. No. 47-73 this Court properly rejected
this extraordinary claim. Moreover, the President's contentions on this
score ignore the fact that the Committee at this juncture seeks only a
declaratory judgment. Powell demonstrates that a declaratory judgment
is a wholly proper form of relief in circumstances such as this, and we do
not understand the Brief in Opposition's learned but inconclusive disc'ussion
of declaratory judgment principles (pp. 4-7) to argue otherwise.
885
-7-
In Misc. No. 47-73 this Court likewise dealt with and resolved a "clash
of power between two branches of government"--a clash between the Presi-
dent as a representative of the Executive Branch and the Grand Jury as a
representative of the Judicial Branch. In all of these cases, the Court
was amply discharging its proper responsibility as the "ultimate inter-
preter of the Constitution." Powell v. McCormack, 395 U.S. 486 (1969).
The same responsibility empowers and indeed obligates the Court to hear
this case.
The defendant President's arguments regarding justiciability
appear ultimately to be based on a theory of a "water-tight" division of
functions between the respective branches. But as this Court pointed out in
Misc. No. 47-73 (Op. 11), the intention of the Framers was otherwise. In
the circumstances of this case, it is also appropriate to recall the words
of Mr. Justice Brandeis:
"The doctrine of separation of powers was adopted by the
Convention of 1787, not to promote efficiency but to preclude
the exercise of arbitrary power. The purpose was not to avoid
friction, but, by means of the inevitable friction incident to the
distribution of the governmental powers among three
departments, to save the people from autocracy.— '
The President has stated that ' (Br. 16), the only possible alter-
native to judicial resolution of this controversy is an impeachment pro-
ceeding. But, as this Court asserted in Misc. No. 47-73, impeachment
" is not so designed that it can function as a deterrent in any but the most
excessive cases" and that in many situations "impeachment is not a
reasonable solution" (Op. 6 n. 9). As a practical matter, if impeachment
were the sole safeguard against Executive abuses of power, the Executive
would enjoy broad license to violate the law. Decisions such as
*_l Myers v. United States , 272 U.S. 52, 293 (1926) (Brandeis, J,,
dissenting)
886
-8-
Youngstown Sheet gt Tube Co. v. Sawyer, supra, demonstrate that the
principle of our Constitution is otherwise. The President, like all
other executive officers, is subject to the rule of law as applied by the
courts. In this Court's words, the President is not a sacrosanct "fourth
branch of government" (Misc. 47-73, Op. 10). Accordingly, this
controversy is fully justiciable.
*/ This Court's decision in Misc. No. 47-73 fully disposes of defendant
President's claim (Br. 35-37) that the courts lack jurisdiction to entertain
any proceeding brought against the President in his official capacity. The
cases cited in the Brief in Opposition do not support an absolute immunity
of the President from suit, but merely hold that the courts should not
entertain frivolous actions against the President or interfere with the
President's exercise of discretionary powers. This Court held in Misc.
No. 47-73 that the President's obligation to respond to a lawfully issued
subpena does not involve any "discretionary functions" and is "something
more akin to a ministerial duty if it concerns official duties at all. " (Op.
10.) This conclusion is a complete answer to defendant President's re-
liance on the decision in Marbury v. Madison (Br. 11), which merely
suggests that courts are without power to interfere with the President's
discretionary "political" responsibilities, _and also casts doubt on the
claim (Br.' 35) that official presidential duties are involved here.
887
-9-
II. The Committee, in Investigating and Exposing Criminality in the
Executive Branch, Is Acting Fully within its Powers under the
Constitution and its Enabling Resolution.
The defendant President contends that the Committee's investigative
and litigative activities go beyond the bounds allowed by the Constitution
and S. Res. 60. This claim is demonstrably erroneous and must be
rejected.
A. Constitutional Requirennents
The President admits that " /_ t_/he power of the Congress to conduct
investigations is inherent in the legislative process and is broad" (Br. 38),
and that "the Senate is authorized to investigate campaign practices to see
if legislation is needed in that area. " (Br. 44). But he contends (Br. 37-45)
that the Committee's investigation is unconstitutional because, in seeking
to ascertain all relevant facts, it is conducting a criminal trial, usurping
judicial power, and acting without a valid legislative purpose. We need not
repeat all that was said in our Supplemental Memorandum (pp. 4-7)
respecting the right of congressional committees to investigate criminal
conduct, particularly in the executive branch. A few comments as to the
Committee's legislative purpose are nonetheless in order.
First, as held in Mc Grain v. Daugherty, 273 U.S. 135, 178 (1927),
and subsequent Supreme Court decisions, —' there is a presumption that a
congressional committee is acting with a valid legislative purpose. This
presumption is not dispelled by the fact that this Committee has been
diligent and scrupulous in exploring the full extent of the executive cor-
ruption which it is authorized to investigate for purposes of considering the
need for corrective legislation.
Second, significant legislative goals are served by the Committee's
efforts to determine the involvement of the President and his subordinates
*/ Barenblatt v. United States, 360 U.S. 109, 133 (1959); Watkins v. United
States, 354 U. S. 178.200(1957).
888
-lo-
in the Watergate affair. If the President was involved in criminality
relating to the 1972 campaign and election, drastic legislative remedies
maybe appropriate. The Committee, for example, might reconnmend that
presidential tenure be limited to one term and that the participation of the
President in the campaign to choose his successor be restricted. If the
President was involved in illegalities respecting the ITT affair — °r other
campaign financing schemes that have surfaced, the Committee might
recommend a radically new campaign financing system that would rule out
private contributions and provide that support for presidential campaigns
come solely from public monies. In light of these and other examples that
could be furnished, it is erroneous to contend that the Committee does not
have any valid legislative ends in view, and it is even more erroneous to
assert that the presumption to that effect has been overcome. It would
simply be folly to proceed to the enactment of far-reaching legislation in
the crucial area of presidential campaigns without knowing all the key factsT
There is another legislative purpose fulfilled by thorough investiga-
tion. To be enacted, a bill- -expecially one that may suggest drastic
revisions in the conduct of presidential campaigns--needs widespread
public support. Such support can best be gained by revealing to the public
the extent of corruption in the last presidential campaign and election.
When this factor is considered along with the Corrimittee's legislative
mission and the recognition that Congress has a duty to inform the public
of corruption in high administrative places, the President's clainn that the
*_l See the Colson to Haldeinan memorandum dated March 30, 1972,
attached to Plaintiffs' Statement of Material Facts As To Which There
Is No Genuine Issue.
**/ Concerning the importance of the materials subpenaed to the Commit-
tee's investigation, see the affidavit of Senator Ervin attached to our
Supplemental Memorandum.
889
-11-
Committee is attempting "to expose for the sake of exposure" becomes
untenable. See Watkins v. United States, 3 54 U. S. 178, 200(1957).-
Thus, as was the case regarding the congressional committees
investigating the Teapot Dome scandal, whose activities were sustained
in McGrain v. Daugherty, supra and Sinclair v. United States, 279 U.S.
203 (1929), the plaintiff committee is performing legitimate legislative
functions. In no way is it conducting a criminal trial or otherwise
**/
trampling on the preserve of the judiciary.
B. The Enabling Resolution
The President's assertion that the Committee's resolution gives it
no power to subpena or sue him likewise evaporates when subjected to
even casual scrutiny.-I •'
The President contends that "it is beyond belief that any member of
*/ Watkins condemned such conduct regarding the investigation of a
private individual. It is not clear that Congress lacks power to expose
executive corruption solely for the sake of exposure; indeed, Watkins
suggests that such activity is proper. But the Court need not decide
this issue because the Committee's investigation here plainly serves
other valid legislative purposes. See further Barenblatt v. United
States, suora at 132, 133, which indicates that the "motives" of
congressmen in investigatory proceedings may not be dissected to
determine the existence of a valid legislative purpose.
Kilbourn v. Thompson, 103 U.S. 168 (1880), relied on heavily by
plaintiffs (Br. 40-41) also involved an investigation into private conduct
It is not convincing to suggest that Kilbourn, which, for lack of proper
legislative purpose, condemned an investigation into a private real estate
pool, is controlling where the investigation under consideration concerns
a presidential election, a subject that is indisputedly the subject of
proper legislative concern.
**/ We believe this Court has already recognized that the Committee is
engaged in constitutional activity. During argument in Misc. No. 70-73
on May 16, 1973, as to whether G. Gordon Liddy would be compelled to
testify under a grant of immunity, the Court (Tr. at p. 13) made the
following observationj _
"Here he / Liddy_/ is asked to come before a duly
constituted Committee 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 necessary recommend
remedial legislation to the Congress to correct any evil
that they might uncover. That is usually the purpose of
every investigation of that Connmittee. "
**:}:/ We will not repeat in detail our contention (Supp. Mem. 8) that the
President has waived his right to claim that the Committee lacks
authority under S. Res. 60 to subpena him, but we do note that his '
Brief failed to deal with our argument in this regard.
890
-12-
the Senate, when voting to authorize the Select Committee to direct
subpenas to an 'officer', had any thought that he was voting to empower
the connmittee to take the unprecedented and unauthorized action that has
led to the present litigation." (Br. 48). Yet such hyperbole cannot obscure
the fact that S. Res. 60 was specifically passed to allow the Committee to
investigate the 1972 presidential campaign and election and the conduct of
the candidates therein--one of whom was the defendant President- -and was
enacted in an atmosphere of widespread speculation regarding the Presi-
dent's own involvement in Watergate. It would thus be blinking reality to
read S. Res. 60--which hardly could be drawn in broader language--tG
exclude the issuance of subpenas to one of the principal persons being
*/
investigated. ~
In addition, as previously shown (Supp. Mem. pp. 9-11), the
legislative history of S. Res. 60 demonstrates that subpenas to the Pres-
ident were envisioned. Senator Scott, for example, observed that S. Res,
60 embodied "the widest possible power" to secure evidence from the
executive. 119 Cong. Rec. at S 2320 (1973). This history does not square
with the President's claims that presidential subpenas were wholly foreign
to the thoughts of the unanimous Senate that passed S. Res. 60.
Moreover, the Senate, by unanimously voting an additional appropri-
ation of $500, 000 to the Committee just two days after the subpenas were
issued to the President, registered its tacit approval of the Committee's
*/ The President's counsel fail to meet our point that, since S. Res. 60
specifically and repeatedly refers to "the office of the President of the
United States" (e. g. I 1 (a) ), the language in § 3 (a) (5) allowing subpenas
to any "officer ... of the executive branch" must be interpreted to
authorize subpenas to the President.
891
-13-
subpenas. Berk v. Laird, 429 F 2d. 302, 305 (2d Cir. 1970); See
Shelton v. United States 133 U. S. Apf..D. C, 315, 404 F. 2 d 1292
(1968). */
The claim that the Committee must seek authority from the Senate
to sue to enforce its subpenas is of the flimsiest fabric. Section 3 (a) (6)
of S. Bes. 60 empowers the Committee to "make to the Senate any
recommendations it deems appropriate" in respect to the willful failure or
**/ . ...
refusal of any person to comply with its subpenas, — thus giving it total
discretion whether or not to seek Senate approval before instituting
litigation. Try as they nnay, the President's counsel cannot contort
the words of this section to require full Senate approval for litigation. The
discretionary nature of this section is in complete accord with the pro-
visions of S. Res. 262, which give this Committee full authority to sue to
enforce its subpenas without referral of the matter to the full Senate; there
is no ground to read any part of S. Res. 60 as denigrating the unrestricted
authority to sue found in S. Res. 262.
'I The subpena attachedto the complaint as exhibit D is narrowly circum-
scribed, rather than overbroad, as defendant President contends (Br. 50).
It calls only for materials that relate to the criminal activities of twenty-
five named individuals in connection with the 1972 presidential campaign
and election. It thus embodies a practical time limitation and refers to
a narrow subject matter. The assertion (Br. 50) that it relates to "a
number of different subjects" and "would require a complete review of
virtually all records in the White House" is either very overblown or
very disturbing. Also, as noted (Supp. Mem. 9n. ), the subpena is as
precise as it can be in the circumstances and is valid even if it requires
substantial production. We are confident that counsel for the parties
can arrive at a reasonable solution for compliance with the subpena if
this Court determines it must be honored.
= / As noted (Supp. Mem,12) the Committee might, for example, desire to
make recommendations to the full Senate if criminal contempt proceed-
ings were contemplated.
!=/ Counsel for the President err in contending (Br. 49), ftat "/_h_/eretofore
no Committee of Congress has asked the courts to enforce a subpena for
it. " That is precisely what occurred in Reed v. County Commissioners
277 U.S. 376(1928), which provoked the ^lassage of S. Res. 262, and
in In Re Hearings by the Committee on B anking and Currency, 19 F. R. D.
410 (N.D. ni. 1956). In neither instance did the committee seek Senate
approval to instigate suit.
892
■14-
III. The Court Has Jurisdiction Over This Controversy
The Brief in Opposition objects to each of the statutory and constitutional
bases of jurisdiction upon which plaintiffs rest this action. To dismiss this
suit for want of jurisdiction, the Court must find that none of these
jurisdictional provisions is applicable,, but the President's counsel, we
believe, have failed to demonstrate that any one of these jurisdictional bases
is inapposite.
I 1331. The Brief in Opposition addresses the question of jurisdictional
amount in a grudging spirit that is at odds with the law. As we have
pointed out (Supp. Mem. 14), it is settled that once a good faith assertion
has been made that a claim involves the requisite jurisdictional amount,
'V i_/ t must appear to a legal certainty that the claim is less than a
jurisdictional amount to justify dismissal. " St. Paul Mercury Indemnity
Co. V. Red Cab Co., 303 U.S. 283, 288-289(1938).
The attempt to dismiss plaintiffs' clciim of jurisdictional amount as a
"bald assertion" (Br. 22) is without merit. Chairman Ervin's affidavit
carefully details the direct monetary value to the Committee of compliance
with its subpenas. The Brief in Opposition makes no effort whatever to
contradict the various factual assertions in this affidavit, which must
therefore be accepted as true. The attempt to brush aside the costs to the
Committee of noncompliance with its subpenas as incidental and immaterial
(Br. 24) is likewise unavailiag. The costs to the Committee of noncompliance
with its subpenas are simply the mirror image of the costs of compliance
with assertedly invalid governmental orders, and it is settled that such costs
may satisfy the jurisdictional amount requirement (Supp. Mem. 17). i'
J*!tey contrast, the cases cited by the defendant President on this score (Br. 25
deal only with the assertion of collateral economic effects from denial of the
claim such as , in the Elgin v. Marshall and Healy v. Ratta cases, the effect
of a judgment upon other litigation, and not with the direct costs to the
plaintiff of carrying out, as in the present case, prescribed responsibilities.
893
•15-
In the words of Kheel v. New York Port Authority, 457 F. 2d 46, 49 (2d Cir.
1972), relied upon by the President (Br. 23-24), the additional cost to the
Committee "flows directly and with a fair degree of probability" from the
outcome of this litigation.
Moreover, the Brief in Opposition fails to deal with the consistent
decisional precedent (Supp. Mem. 18 n. *) holding that the official duties
and rights of legislators are susceptible of monetary valuation and provide
a completely adequate basis for establishing the jurisdictional amount. We
have cited several cases where legislators' rights and duties have been held to
be of sufficient worth to satisfy the jurisdictional amount requirements; the
President's counsel are unable to cite a single decision where a court has
rejected a legislator's action on the ground that the requisite jurisdictional
amount was missing. ^Z
. i 1345 The Brief in Opposition appears to misunderstand both our claim
to jurisdiction under § 1345 and the requirements of that provision.
Section 1345 provides as follows:
"Except as otherwise provided by Act of Congress, the
district courts shall have original jurisdiction of all civil actions,
suits or proceedings commenced by the United States, or
by any agency or officer thereof expressly authorized to sue by
Act of Congress.
As the placement of the comma after the words "United States" indicates, this
section distinguishes trwo classes of plaintiffs: the "United States" and "any
agency or officer thereof expressly authorized to sue by Act of Congress. "
JiDefendant President dismisses the third predicate we have suggested for
meeting the jurisdictional amount requirement -- the "defendant's viewpoint"
approach -- with the statement that "it need not be dignified with a response. "
(Br. 25, n. 4). But our position in this regard is supported not only by the
authorities cited in our Supplemental Memorandum but also by the Court of
Appeals decision in Ronzio v. Denver & Rio Grande Western R. , 116 F. 2d
604 (10th Cir. 1940). See also Wright, Law of Federal Courts, 118-119 (2d ed.
1970)i where the author observes that the "desirable rule" allows consideratiot
of the worth of the suit to the defendant in the jurisdictional amount determina
tion because "the purpose of a jurisdictional amount, to keep trivial cases
away from the court, is satisfied where the case is worth a large sum to
either party. " We also note that the President's counsel do not dispute that
the outcome of this case is of considerable importance to the President.
894
V
-16-
As made clear in our Supplemental Memorandum (pp. 20-21), the
Committee, as the duly authorized agent of the Senate, brings this suit in
the name of and on behalf of the United States. */ Since the requirement of
authorization by Act of Congress does not apply to suits by the United States,
there is no merit in defendant President's contention that an Act of Congress
is required to authorize this action. Jt*'
There is likewise no merit in defendant President's claim that 28 U.S.C.
§ 516 requires a congressional litigant to be represented by the Justice
Department. The statute is an executive housekeeping provision designed to
govern relations between the various executive agencies, the United States
Attorneys, and the Attorney General (Supp. Mem. 22 n. **), and has never
been held to apply to congressional litigation. As Assistant Attorney General
Petersen recently acknowledged in a September 11, 1973. letter to
Representative Ichord (attached hereto as an exhibit):
"While there is no statutory authority for the representation
of Congressional committees by the Department of Justice, such
representation has, of course, been traditional. However, as
you are also aware, there is substantial precedent for Congress'
hiring private counsel, particularly in cases where the
legal issues to be explored by the litigation raises the possibility
of conflict with the positions taken by the Department of Justice
or other parts of the executive btanch in other litigation. " Exhibit, p. 3.
Article III The Brief in Opposition (pp. 10-21) challenges jurisdiction
under Article III of the Constitution, asserting that the decisions we have
cited for the government's authority to sue under that Article are all cases
where the courts predicated jurisdiction on a statutory basis, 28 U.S.C.
§ 1345. But the President's counsel misread these decisions, especially
HrPlaintiffs do not seek to bring suit as an "agency or officer" of the United
States.
**/ See United States v. Shanks, SQi F. 2d 924 (10th Cir. 1967); United States v
Fabric Garment, Inc., 366 F. 2d 530 (2d Cir. 1966); United States v, X)esert
Gold Mining Co., 433 F. 2d 713 (9th Cir. 1970).
895
■17-
In re Debs, 158 U.S. 564(1895), and The New York Times Co. v. United
States, 403 U.S. 713 (1971) which indicate a jurisdictional base in Article III
independent of any statutory provision. We refer the Court to our previous
discussion of these decisions (Supp. Mem. 22).
§ 1361 We agree with the President's counsel (Br. 31 ) that for
jurisdiction to lie under 28 U.S.C. § 1361 there must be a colorable claim
of ministerial duty owed by the President. However, this Court ruled in
Misc. 47-73 that the President's duty to comply with a proper subpena is
ministerial in character (Op. p. 10, n. 21). While that ruling was made in
the context of a grand jury subpena, we have shown (Mem. 17; Supp. Mann.
6-7) that the duty to comply with congressional subpenas is at least equally
compelling. Theplaintiffs have certainly made a colorableiand, we
believe, irrefutably claim that the defendant President owes a ministerial
duty to produce the evidence demanded, and I 1361 therefore affords
jurisdiction .
Administrative Procedure Act Three points should be stressed with
respect to the President's challenge to the plaintiffs' jurisdiction under
the Administrative Procedure Act (APA).
First, this -Circuit has held in Independent Broker-Dealers Trade
Association v. SEC, 142 U.S. App. D. C. 383, 442 F. 2d 132 , cert.
denied, 404 U.S. 828(1972), that the APA embodies an independent
conferral of federal jurisdiction, and thus has effectively overruled its
earlier rulings in ALmour v. Pace", 90 U.S. App. D. C. 63, 193 F. 2d 699
(1951) and Kansas City Power k Light Co. v. McKay, 96 U.S. App. D. C. 273,
281-282, 225 F. 2d 924, 932-933 (1955) upon which the Brief in Opposition
relies heavily (p. 34). */
£While the circuits are split over the issue, there are strong dicta in
several Supreme Court decisions, particularly Rusk v. Cort, 3 69 U.S. 367
(1962) and Abbott Laboratories V. Gardner, 387 U.S. 136(1967), which
support the position taken by this Circuit in the Independent Broker-Dealers
case. (Footnote continued on following page. )
896
-18-
I
Second, "agency action" for purposes of jurisdiction under the APA is
not, as suggested in the Brief in Opposition (p. 33), limited to rulemaking
and adjudication in the traditional sense. As the decisional law makes clear,
other forms of executive conduct are also subject to APA review. E. g. ,
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). The APA
itself defines "agency action" to include -- in addition to a "rule"
or "order" -- the "denial" of "relief" or "the equivalent . . . thereof " and
the "failure to act. "*/ These latter terms aptly describe the President's
failure to turn over the evidence which the Committee has demanded. Jl*/
Since the President should be regarded as an "agency" for APA purposesjSA*/
it follows that the APA affords jurisdiction over this action.
Third, the Committee has a legal right to have lawful subpenas obeyed
seeWatkinsv. U.S., 354 U.S. 178, 187 (1957), has therefore suffered
"legal wrong" by reason of the President's refusal to comply, and accordingly
has standing to seek judicial review of the validity of the President's actions.
(Footnote continued from preceding page. )
In presenting the positions of the various Circuits, the Brief in Opposition
has also cited a Second Circuit ruling, Ove Gustavson Contracting Co. v.
Floete, 278 F. 2d 912 (2d Cir. 1960), which is no longer the law in that Circuit.
See Rettinger v. FTC, 392 F. 2d 454 (2d Cir. 1968); Citizens Committee for
Hudson Valley v. Volpe, 425 F. 2d 97 (2d Cir. ), cert, denied, 400 U.S. 949
(1970).
*^'/A/gency action' includes the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof, or failure to
act." 5 U.S.C. § 551 (13).
*=!^n fact, the term "adjudication, " as defined by the APA, could well apply
to the President's action. See 5 U.S.C. § 551 (6 and 7).
♦♦♦yAs already pointed out (Supp. Mem. 26), it is the better and emerging view
that the President is an "agency" for APA purposes. As Judge Leventhal
stated in Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 761
(D.D.C, 1971) (tjjj.ge.j^^jjgg j,ouj.t):
"The leading students of the APA, whose analyses are often
cited by the Suoreme Court, and who on some matters are in
conflict with each other, seem to be in agreement that the term
'agency' in the APA includes the President - a conclusion
fortified by the care taken to make express exclusion of
'Congress' and 'the courts. '"
Judge Leventhal cited the following authorities in support of this conclusion:
R. Berger, Administrative Arbitrariness - A Synthesis, 78 Yale L.J. 965,
997 (19'69); K. Davis, Administrative Arbitrariness - A Postcript, 114 U. of
Pa. L. Rev. 823, 832 (1966); L. Jaffee, The Right to Judicial Review, 71
Harv. L. Rev. 401, 769, 778, 781(1958). ^ at 761, n. 43.
897
•19-
IV The President Is Not Privileged to Disobey the Committee's Subpsnas
In dealing with the merits of this controversy, the Brief in
Opposition engages in a wide-ranging discussion of the generalized
need for confidentiality in government. This discussion is largely
beside the point, almost wholly ignoring the narrow thrust of the
Committee's subpenas and the fact that they are directed at possible
criminal misconduct by executive officials.
Counsel for defendant President at no point challenge the Committee's
assertion that the President enjoys no privilege to withhold evidence
relating to his own criminality. As we have shown (Menn. , pp. 18,19),
the defendant President has already conceded this point, and this
concession was reiterated in the Court of Appeals proceeding on the
u
Special Prosecutor's case. The President has sought to avoid the
impact of that concession in this case by contending that the Committee
lacks authority to investigate presidential misconduct, but we have also
shown (pp. 19 -21 supra ) this contention to be without merit. Accord-
ingly, the President is required to respond to the Committee's subpenas
insofar as they bear on his own possible wrongdoing.
As we have shown (Mem. pp. 21-27), there is likewise no
executive privilege to withhold evidence relating to criminal wrongdoing
by presidential subordinates. There is no substance in the President's
effort to avoid this showing by reference to a supposed "unbroken
record of successful assertions" of executive privilege against Congress
(Mem. , p. 54). As Professor Berger has established with painstaking
care, see R. Berger, Congressional Inquiry vs. Executive Privilege,
*_/ Brief of Petitioner in No. 73 - 1962, at 69-71.
**/We trust the Court will recognize that the reference to the President's
own possible criminality is not recklessly made. There is certainly much
evidence that would exonerate the President, but, as demonstrated in our
Statement of Mat erial Facts, there is sufficient evidence to establish a
prima facie case that the President was engaged in criminal conduct. In
such circumstances, executive, privilege cannot be used to suppress
evidenceihat would tend to prove or disprove this prima facie case.
34-966 O - 74 - pt. 1 - 58
898
-20-
12 U.C.'L.A, L,' Rev. 1043 (1965), this claim rests on a gross distortion
of the historical record. In many significant instances the President
has yielded to Congressional demands for information. See Berger,
supra, at 1078 et seq. In other instances, the Congress has yielded.
The general historical record is at best mixed and ambiguous, and
will not support the President's blanket claim of absolute discretion
to withhold any and all information from Congress.
Moreover, if analysis is confined to the precise issue in controversy
here -- the Congress' right to evidence bearing on possible executive
criminality where a threshold showing of wrongdoing has already been
made out -- the historical record decidedly favors the Congress. As
demonstrated in our Historical Appendix, the executive has, in such
cases, repeatedly obeyed congressional supenas and demands for
information. The Brief in Opposition fails to document any contrary
examples, and also fails to adduce any instances where Congress
allegedly "acknowledged" (Br. 55) an executive right to withhold infor-
mation in such circumstances.
The argument that legislators and judges, along with Presidents,
have a need for confidentiality (Br. 60-71) likewise ignores the narrow
scope of the issue presented here. The Connmittee has never asserted
that the President is not entitled to a large measure of privacy in
communicating with his aides. It has not sought to mount a wholesale
* / The Brief in Opposition (p. 50) dismisses the frequent examples of
executive capitulation to congressional demands for evidence as instances
of "voluntar^^' compliance . But the instances where Congress has failed to
press evidentiary demands in the face of executive refusals might likewise
be described as "voluntary." Moreover, as Professor Berger shows, it
is simply not true, as claimed by defendant President (Br. 52), that where
matters have been "forced to a showdown, " Congress "has always yielded. '
**/ In regard to the clainn advanced in the Brief in Opposition (pp. 2-3)
that no cabinet head has ever testified before a congressional committee
in response to a subpena, see historical evidence marshalled in our
Supplemental Memorandum (p. 10, n. ***), which demonstrates that
cabinet heads, through testimony and otherwiaei have responded to con-
gressionional subpenas.
899
-21-
u
invasion of executive confidentiality. The Committee simply
asserts an absence of any privilege to suppress evidence of possible
executive criminality where a threshold showing of wrongdoing has been
made out. The defendant President concedes (Br. 60) that executive
privilege exists "for the benefit of the public, not of the executive. "
As we have shown (Mem. , p. 9i 18et seq. ), the courts have concluded
that executive privilege to suppress evidence of executive wrongdoing
would plainly invite abuse, is not in the public interest, and ought not
to be recognized. In Misc. 47-7 3, this Court specifically held that
executive privilege cannot be "invoked as a cloak for serious criminal
wrongdoing. " (Op. , p. 19)
The privileges enjoyed by the judicial and legislative branches are
likewise vulnerable when criminality is involved. In Clark v. United States,
289 U'S. 1 (1933), the Supreme Court held that the jurors' privilege of
secrecy fails when wrongdoing is involved, while this Court's decision
in Misc. 47-73 observed (Op. , p. 21):
"A Court would expect that if the privacy of its
deliberations ... were ever used to foster
criminal conduct or to develop evidence of criminal
wrongdoing, any privilege might be barred and
privacy breached. "
Even the legisla.tor 's privilege, grounded constitutionally on the
specific language of the Speech or Debate Clause, does not offer a blanket
shield to charges of criminal misconduct. In Gravel v. United States,
408 U.'S. 606 (1972), the Court held that Senator Gravel's assistant
could be compelled to tesitfy about publication of the Pentagon Papers,
which the Senator hirrBelf had read on the Senate floor. The Court went
on to state that even the Senator could be interrogated by a grand jury
*/ It should also be stressed that defendant President has made no claim
that the materials sought by the Committee involve military or foreign
relations secrets.
900
• 22-
concerning the sources of information which he relied on in performing
his legislative duties if criminal conduct were indicated. 408 U.S. at 622"!
In United States v. Brewster, 408 U.S.' 501 (1972), a Senator's conviction
for making a floor speech in return for a bribe was upheld on the ground
that /_ t /aking a bribe is, obviously, no part of the legislative process
or function, " 408 U.*S.' at 526. In view of these authorities, it is hardly-
tolerable for the Executive, who enjoys no constitutional grant of
immunity, to assert a privilege which is denied to legislators and the
judicial branch.
Finally, we must reiterate that the selective disclosure authorized
by the defendant President has destroyed any claim of confidentiality in
this case. As already explained (Mem. , pp. 28-33) the defendant
President may not toy with the Select Committee by picking and choosing
among tapes, papers, and memory, and only allowing revelation of those
portions he apparently feels most beneficial to disclose. As also ex-
plained (Mem. , pp. 29-30) the controlling Supreme Court decisions in
Lopez V. United States. 373 U.S. 427 (1963) and Osborn v. United States,
385 U.S. 323 (1966) preclude the assertion of privilege with respect to
recordings of conversations where the asserted privilege has been waived
with respect-to testimony regarding such conversations. For defendant
President to have withheld all evidence, although unjustified, would be
more defensible than allowing him to tailor the facts by choosing the most
convenient stopping place in the evidence while still claiming publicly
* / Contrary to the President's assertion (Br. 62), Gravel does not
provide a blanket immunity for communications between legislators and
aides. Such protection extends only to legitimate "legislative acts,"
(33 L Ed at 603- 408 U.S." at 626) and Gravel makes clear that
criminal activities are not within the sphere of legitimate legislative
activity." 408 U.S. at 624
** / For a discussion of the Framer's refusal to grant privileges to
the Executive, see this Court's decision in Misc. 47-73, Op. , pp. 3-5.
901
-23-
u
that he has not waived executive privilege.
All evidentiary privileges express important social interests in
confidentiality. Yet all are waived by partial disclosure. The President
has failed to explain what it is that sets apart the privilege which he
asserts and enables him to present a one-sided version of the evidence
to a tribunal which is constitutionally entitled to the full facts regarding
possible wrongdoing by the President and his associates.
* / The serious weakness of the President's position re the waiver
issue is illustrated by his sole, misconceived reliance (Br. p. 51) on
United States v. Reynolds, 345 U;S.' 1 (1953), to establish the non-
waivable nature of executive privilege despite the fact that Reynolds did
not even discuss the concept of waiver and was fully distinguished in our
initial memorandum (pp. 31-32).
902
-24-
CONCLUSION
For the reasons set forth above and in plaintiffs other memoranda,
plaintiffs' Motion for Summary Judgment should be granted.
Sherman Cohn
Eugene Gressman
Jerome A.' Barron
Washington, D,*C,
of Counsel
Arthur S; Miller
Chief Consultant to
the Select Committee
of Counsel
Respectfully submitted,
--^y
^\
"Samuel Dash
Chief Counsel
Fred D," Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
Donald S.' Burris
Assistant Counsel
William T.' Mayton
Assistant Counsel
Ronald D* Rotunda
Assistant Counsel
United States Senate
Washington, D.C. 20510
Telephone Number 225-0351
Attorneys for Plaintiffs
-'=r
903
Septeaber 11, 1973
Jlonorable Richard H. Ichord, CbatrBan
Concrittea on Internal Secuirty
cf the United States liouse of Representatives
V'ashlngton, D. C.
Re I Dnited States Serviceiaen ' s Fund et al V.
JacH3S O. Eastland, et al.
>708. 24,279; 24,412 and 71-2034
DSCA for the District of Colmnbia Circuit
Dear Chairman Ickordt
As yoiar staff vas orally infonaed on Angnst 30, 1973,
the Court of Appeals, on that date^ issued its opiaion ajul
judgment io the 2Ji>ove cited case. This case is, of . course «
a coF^anlon case to eiiailar cases' filed against your Coe--
mittce by the Progressive I^bor Party, the National Peace
Action Coalition and the Peoples Coalition for Peace and
Justice and all of these cases were consolidated for appeal,
though the jodgt&est In the cases involving your Cooealtte has
not yet been Issued..--.. ~ . . . r. '
As you are aware, in each of these cases, the Depzurtnent
of Justice in representing your Oonnaittee and the Eenate
Suboocndttee strongly relied upon the doctrine of separa-
tion of powers and the Speech and Debate clause in arguing,
inter alia, that the courts lacked subject natter juris-
diction of the litigation because there i.'erc no parties
properly before the court as to when effective relief oould
be fashioned, that, in any event, even if the coxirts were
asstmed to have subject matter jurisdiction, the cases
should be held to be non- justiciable because of the respect
due a coordinate brzmch of the Goveininent and because of the
need to avoid a Constitutional confrontation between two
coordinate branches of the Xiovencaent.
■ Tfe l«ive further contended that the defendants, includ-
ing the Congressional defendants jmd the eenbers of their
staff, were i]ar>une frcn suit. . Xn the cuue involvistg the
Senate subcotrailttee , we also raised the privilege of the
Congress over its reoorda and papers as a defense to the
attenptad deoositicw of the Subccenlttee counsel.
904
Copies of the crinici cf. thf; CoL^t cf .'.ppcnlc ? tiv?
I-ocr. furnifil'c;: to your *5taff. In this t'ecisicn, tho Court
of Appeal? has hsl-I that the cjieqs are vithin t].G jiirisdic-
tlon of the Coiirts , that thoy do preoent justiciable? issues,
that the Congressional c?pf onrlants , including both the
Senators and House nenl^ers thcnpclvec, are not im\ane from
suit, and that the Senators and Tlouse nenl^ers should not
have been disnlssed from the suits by the District Court.
2-toreover, though not deciding the point, tlie Court of
Appeals also directs the trial court to, on remand,
recorislder the sustaining of the Senate's claim of privilege
as to the records and docvunents of the Senate. This claim
was icade after the Senate passed a resolution ordering staff
counsel to testify only concerning laattere in the public
record and prohibiting counsel fron> producing aj^ informa-
tion frora the files of the Senate.
A petition for a writ of certiorari in the case invol-
ving the Senate Subcommittee would have to be filed in the
Suprene Court by Rovenber 28, 1973. Since the panel in the
Court of App>eal8 included a judge sitting by designation
froiu another circuit and the two judges fron the District
of Columbia circuit split on the decision, a petition for
rehearing ejn banc raay ba considered appropriate, particu-
larly since the District of Columbia is the only jurisdiction
in vhich this type of soit may be brought. The date for
petition for rehearing vould normally expire on Septer±>er 13,
1973, but we are requesting an extension of tirrje to file such
a petition for a thirty day period to and including October 13,
1973. A sinilar request v^ill J:>e made to extend the period
for rehearing in the cases involving your CcMrrrdLttce.
The purpose of this letter is to . solicit your views on
the question of whether or not these cases should be further
appealed, either by the filing of a petition for a writ of
certiorari in the Suprene Court, or by the filing for a
petition for rehearing with a suggestion of en banc rehearing
with the circuit court. Xt is also to request t2iat 3rou
consider this question in light of the legal issues involved
in these cases and the possible conflict of the legal argu-
sients advanced with the legal position that may be tahen by the
Senate Cosnittee on Campaign Activities in its civil suit
atten^>ting to, obtain the production of the Presidential tapes.
It ia also requested that, if you desire to further
pursue these rjitters on appeal, consideration be given to
whether or not you wish to obtain the services of private
counsel to represent you further, particularly in light of
the litigation now being pursued by the Special Prosecutor
905
also concerning the Presidential tapes. \Chlle there is
no statutory authority for the representation of Congressional
coinniittees by the Department of Justice such representation has,
of course, been traditional. However, as you are also aware,
there is substantial precedent for Congress* hiring private
counsel, particulzurly in cases vhere the legziJ. issues to be
explored by the litigation raises the possibility of conflict
with the positions tejJcen by the Depaurtraent of Justice or
other parts of the executive branch in other litigation.
We would appreciate receiving your views on these
matters and any ijistructionfl you may have concerning fvirther
action by the Depzirtment of Justice on the Committee's or
House's behalf as soon as is possible. ■
Respectfully ,
Henry E. Petersen
Assist2int Attorney General
Criminal Division
cct Eonorzible Sam J. Ervin, Jr.* Chairman
Senate Coimiittee on Presidential Crinpaign Activities
United States Senate.
Washington, D. C.
Mr. Samuel Dash
Chief Counsel
Senate Coronittee on Presidential Campaign Activities
Waishington, D. C.
Mr. H. Charles Wright
Counsel to the President
1600 Pennsylvania Avenue, M W
Washington, D. C.
Kr. Archibald Cox
Special Prosecutor, Watergate Prosecution Forc-e
1425 K Street, N W
Washington, D.^'C.
Honorable Jeaaea O. Eastland, Chairman
Subconcilttee on Internal Secnirty of the
Coirnittee of the Judiciary of the United States Senate
Washington, D. C.
906
UNmD STATES DISTRICT OODKT
FOR THZ DISTRICT OF CGLIHBIA
SEBATS SELKCr CdftUnZI (M PUCSlDiOriAL ^.^
, CAKPAICa ACTIVITIES^ «tal . .
■'■ ' . .r .• ._ c. ■ nWI c s , T, - r - - ■ r " _ r
BICBABD M. JnX!ai>_..= rxi:l . -
Civil Action Be»
1593.73
Tfauraday, October 4, 1973
Th« above-entitled cause ceee on £or hearing cm ^
notioa of Plaintiffs for Smmary Jx3dgaent» at 10:00 a.m,
before TBS BOaOBASLS CHIEF JUDGE JGQB J. SIRICA,
APPSARAlXaSS:
On Behalf of the Plaintiffs;
SAHUB. DASH -,.,.,..- ,,".
JAMES aamjca
BfiSALD B^ BOTIDBA . ..^,. .
DONALD BDSRIS
VULIAH T, HATTt»
Oa Behalf of the Defendant:
CHARLES ■ AT AT^l WRIGHT ,
LEPRAE PAPMEHT
DODCn^AS Ii« PARKER
THfHAS P. MARTWIS
r. . ROBERT X< AHDREBS
907
THE OOQKT: Arm ]roa r— dy» Hr. Dash?
ML. DASBt Tm» T(
Itoy It plMM til* Coort: wy mm !■ ftmvl teakV
Ghl«f OcMms«l for tfa* Smamtm Sclsct CoMlttM oa Pr*sidantl«l
CaapalsB Aeti<vltlM. Th« captioa of oor c«s« la Sanato Saloet
CoBBlttaa «& Prasidaniial Cai^iga Aetivitiaa* at «1 va ■' ' ' ~
Uebaxd Hlxoa» avii Actioa lo. lSn.7).
Va ara Kara, Toar Honor, on tiia Flalntiffa* notion for
Swaary Jod^aent on tlia coaplaint it filod for Dodaratory '
Jodgnants
Briaflj, I think tha facta ara wall known that on
July 23, 1973 tha Sonata Salact Coonittaa after a ananlaona
vota of tha Caimittaa actually dona in public aass ion, votad to
sand tvo std>pottnas to tha Praaident of tha Doitad Stataa for
fiva specific tapes, eonvarsatioos or recordings on electronic
tape, and aooa docon^its related to apecified persona'. All of
the atd>pocnas —the two aiApoenss ■ ■ and tite natters s«d>poenaad
were clearly indicated as relating to criminal activities which
were part of tha inrvestigatimi under the S«kate Seaolation 60
which has been oiwgoing and is still as a natter of fact la
session now*
The subpoenas were required. Tour Honor '» bMausa the
C^BBiittee through ita own investigative process and Its oft
public hearings cane across infozmati<m through the teatlnony of
908
Mr. Bvtt«rfi«ld that an otwgoing racording had takaa pLaca
duriag tha period ralavant to tha *CoHMlttaa*a laqoiry of coo.
varaatiooa that vara aoctraMaly partlnant to tha lavaatlsatloa
of tiia Coaalttaa.
Tha CooBiittaa had haard tha tastteooy of varloos
peraona, apaelally Mr. John Daaa, «ho had taatlfiad to apaelfic
coovaraatiooa with tha Praaldaot in tha Oval off lea la which
ha allagad that ha had iafoxsad tbm Preaidant aa early m» Saptaad>ar
1S» 1972 of varloos actlvltlaa oa hla part that the Preaidant
at laaat indicated knowledge of theae actlvltiea which Mr. Dean
atated to tha Qonmittea left hin with the coavicti<» that the
Preaidcnt waa folly aware of the cover.iq> activity that waa going
OQ.
There was other testimony before tha Conmittee --Jtr.
Haldaman*a testiaumy, Mr. EhrHchman*a testimony which would
Interpret tha coveraation of Sept«d>cr IS and alao other ccnvar-
aatlona of F^mary 28di and March 13 » March 21at aa aonewhat
differently than Mr. Dean testified to.
And when the Caanittee learned for the firat tine,
m» a matter of fact» it did not really have to try to weigh
theae dlacrepanciea based on credibility of the witnesses, or
nuBber of the witnesses, that in fact exact recordings of these
very convcrsationa that were being testified to before the
Cannittee and within tha fraaework of the resolution of the
CoDBlttee that there were auch recordings, and perhaps night be
909
ths oltinat* wltn«M for th* Ccanitt**, tbm CamkLttmm sooght
to obtala tbM« tmp— first hj ooop«ratioa with th* Pt«ald«Bt*«
offic«» It f«ll«d to acco^lUh tiOs mad finally «m vqtixmi
to issno si^poonas.
Z tiiiidc it is also wall knoMH thm Presldont rMpoodod
by rofosing to honor tfao »«fcpoon«s elaiains Bxocatiiro privilago
and asparation of powra «hi^ in a aaasa aqoataa witii hia
Ezacutiva pctvilasa.
Tfaa CoHMittaa ballrvas that it ia aaaantial. Tour
Honor, that theaa tapea ba attainad or ttam infomation tiiat
appears on tha tapes be attained bj the CcsBittee in order to
carry out its nandate.
THB OODRX: Does the Conaittee contend it is necessary
to listen to these tapes for the purpose of writing an adequate
ri^rt in this cmfl
lOL. DASH; I would like to say for the purpose of
writing a full report.
THE OCXKI: May I ask a question on-tiiatT
X want to preface ny ranarics, of coarse, that any ti»e
I ask a question doesn't indicate how I tm going to rule in til a
case, I an sinply seeking infoxmation from both aldea.
On page 39 of your brief, the brief on bidtalf of ttm
President filed by his counsel, counsel notes a atataaent made
by Senator Daniel K. Inouye, one of the Plaintiffa in this caae,
on HBC*a Meet the Press last Bonth« Hia atatcnent cane ia
910
r%spanB9 to a quMtioa po»«d by Hr. Carl Stam vrt&ldi im« as
follow, an4 X aa qootlag froa tha txanacript:
*)ll.. STBM: Tba Uhlta Hooaa haa voo a dalay la
raapoading to jroor Coaalttaa*a aulta for tha Praaidaatial
tapas raUng It al»oat eartain that tha Coaklttaa will not
gat aecass to tlioaa tapas bafora tha and of tha hearlnsa
•van If It wins its fight la court. Doas it aaka any
diffaranca, and woold tha Caanlttaa consldar possibly
postponing its raport to tha fall Sanata until such tiaa
as tha tapas auittar is rasolvad?
"SEHAICB. IBOOYE: As far as I an concerned personally,
tibia is where tha difference between a legislative and a
Judicial proceeding cane in. If this were a criminal
flutter I would say the tapes are absolutely necessay and
essential. But in our case I think we can proceed and
file an adequate r^>ort witiumt the tapes."
This ST&ject was again raised later in the mamm inter-
view.
**MR. STERH: S«iator, I as puzxled by your previous
response to me that it wouldn't make wuch difference whether
you get those tapes or not. Hot only is that inconsistent,
with the position your own lawyers are taking in the courts
but also take for cxasple Mr. Dean, a central figure in
the matter who has raised some very serious charges. I
doa*t kDw of any way of establishing whether he told tha
911
troth or not «xc«pt those tape*. Doesn*t it satt«r to joo
in joor f Ijaal roport whether jw Mtabll^ «ho la tttUioK
tha trothT
**SEHAm ZKIJIK; I aald tfaia was mj paraooal vlav
and this makas a diffaranea batwaan a laglslatlTa Invastl-
gatioo and a criminal casa. In a crtslnal easa it would
ba absolntalj assantial. X would aay tbm ti^as ba ouida
availabla. But for tha purposa of this coanittaa I aa
certain tha Ccnwittaa rq»ort can ba wada.
*^fR STEU: Too parsonall7 don*t cmrm who ia tailing
tha trothT
"SEHATGR ITOUTE: Becausa it is not oor bosiness to
declda tha guilt or innocenca of any party; this is uj
view.**
Bow, is joor position bara inconsistent, Hr. Dash, with
the position teken by Senator InooyaT
ME.. DASH: Itell, not cootpletely. I think there are
two things I would like to say to Senator Inouye*s response to
Mr. Stem's interview.
Bonber 1» I think he did enphasize he was expressing
a personal view and not the Senate's. I think the Senate was
onanlaoos in its vote and its effort to obtain tha tapes and
in its claim that it absolutely needs the tapes ia order
to not write an admqaaf r^wrt bat to write a full report in
accordance with its mandate*
912
Senator InooTa** mtMtmmmot wBa actoally Issoad la
that Ijitaenrlaa for tha porpoaa of dispalllag a irt— point that
«aa abroad that If «a didn't gat tba tapaa tbm CaBU.ttaa voald
poll apart and «a coolda't do anythlog.
X thlidc in parfact cvidor if «a dlda*t gat tha tapaa
tiiara la awiqgh infotaatioa that tha Conalttaa baa racalvad In
whldi a r^»ort« an adaqoata raport alght ba vrlttan In which wa
coold niaka aoaa laglalatlva raccBBandatloo. Bat I siiat caphaslza
to tha Court that this particular coonlttea was created in a
crisis* tha lasuas Involving tha intcgrltj 6f tha electoral
process are ao great » the mandate and the resolution was onaniaous
in t he Senate calling t^cm the connlttee to investigate fully
all tha facts in this case and coae up not with an adequate
r^»ort, but with the best possible report with the best possible
legislative reot—tendations for refom so these things will never
happen again*
And therefore I doa*t believe that what Senator
Inouye was saying Is Inconsistent with the position we have before
the Court. Gbvlously we are not out of business If we doa*t
get the t^ies, but obviously It is essential that we get the
tapes to do tha Job that tha unanimous Senate vote called upon
the coonittee to do. And I think there is a distinction between
an ade<iuate rq>ort and a really full report that safeguards the
electoral process for the country*.
913
■ov the counsel for th* TcmmiAmat seeks to prsseat
this case mm tmlqoe, «s I think he did whew Che tpaclal Prosoeutor
sad hs vsfrc bsfor* ths Oo«rt, and ha says la hia brlaf that
DO Ooart has ever ordarad ttm Praaidant to torn ovar artarlal
ahara Bxacotlva priyilega has baan aasartad. Aad ha raallj
ignores, strangely, that Tour Hoaor» thia CDort, has antarad
such an order in the recent case brot^ht by the Spacial Prosactttor
for the sa»e tapes as we subpo«iaad.
Judicial review of Execntive privilege question is
really not new as daeonstrated in the Keynolds case, and judicial
review of confrontations between the Congress and Ezacotiva is
not a rarity.
The Toungstown Sheet & Tdbe Coapany case which was
the steel selrure case; the Meyers case, the Lovett case» all
cases where conflicts where the issue of executive privilege
have risen.
Vhat in affect the Preaieat's eotaasel seeks to distinguisi
i
especially in cases <^iere the President hiaself is ixot. involved,
is tfal^ vas Executive Branch auttars and not the President.
I think Tour Honor well stated in your opinion in the
case before you tbat was brought by tiia Special Prosecutor. Toa
indicated that t he President's position would set up really a
fourth branch of govemaeat and distinguished the Predd«it from
his cot- reach which are the very people who operate for hla.
Am a aittar of fact, the Toungstoim Sheet and Tuba
34-966 O - 74 - pt. 1 - 59
914
Goi^taoy case really «as a c«s« wbare th« Court <i*alt with «h«c the
Praalteoc done lo ■elslng tb« steal ailla avao tfaoi^ tiw par>
dcalar person naaed nas SawTar, the SacxeCary e£ On— srcs.
THE OOlBtl: Talklns about absolute privilege now,
correct?
ML. DkSB: Talkl«g about tbe absolute privilege issue.
THS OQOBT: Lst oe ask 70U this. Gbvlonsly you can
see !*■ reading froa these qwstions, I caa*t reoeober all these
tfaiogs and I write then out. I'a not trying to trap either side.
How, in connection with this, doesn't the Congress
clala the sans sort of absolute privilege for its papers as the
President clains here? Suppose the attorney general subpoenaed
papers froa a certain congressional coamittee or senator, or
■ember ef the House, and refosed to honor the subpoena, tiiey
wouldn't honor the subpoena say, would you say the attorney
general would coae to the court for help io enforcii^ the sub-
poena, tbe court could properly issue a declaratory judgiaent or
injunction against theat
ML. DASH: Tes, I do. '
CHE COOKT: Distinguish the two. Tou see, as you know,
I haven't ruled finally on anything in ttum decision I rendered.
I sioply have gone as far as saying I have taken the middle of the
road approach and I can't possibly deteroine the question of y,^
privilege until I bear the tapes, if I ever hear tb^. ■~^^-
Mt. LASa.: That is correct. Your Honor, and I think
Tour Honor has zuled, however, on the key issues that also govern
915
10
tt-s C2.i ft, B.Z!(L u^ cwc kMj issues 6m*.l wlCL ^ -d>t tb*
PresiteQC ba.8 an absolattt onxsvlBiMblB de taral ns tton of caBScatl'v*
prlTlIege; and two, vhatliar or not this court's procaas axtaods
ta the President. I suggest that Issue is no different than the
Congress. Whatever Congress's ezaeutlva privilege ia la reviatiable
by tfaa ourt under Powell vs MeCoraack deciaiona and all declaions
of tiie court says executive privilege issue is a matter that ia
detendoed by the court and we would not assert an absolute
power in the Congress to hold that would not be subject to court
review. And I think that our position is no different than the
Executive's position.
Now we submit that the court has only recently held that
in this area as rules have iodlcated and %fe are on familiar
territory in resolving the controversy involved in this case.
The cootroverey. Your Honor, is fully aatture and ripe for
judicial resolution on our motion for suoaary Judgment. The
defendant has not controverted any of the items set forth in
our statement of material facts as to w^ich there ia no genoina
iaaoa as we set forth in the motion for suooary Judgoaent. All
issues of defense have been fully briefed and are before Toor
Honor, and I think we are ripe for a decision.
The major questions on the merits as I have Just
indicated, have already been decided by the court, althone^
Tour Honor has reserved the question whether or not in this par*
ticular case with regard to these tapes, and our case it woi£d
916
11
b«v« to b* is r*gazd to ovoo tbo decu— nto tm hmwm askod lo oar
socood sobpoono. Thoto is on laDoeati^o pxlTlloge, ood I sboill
•tato bozo tbozo is oo ioooo botwooo tbo Prosldont ood tbo
Ooaaittec oo tbo oxlotonco o£ Kzocatlvic privllogo. I would soy
wo coald pxobobly ogzoo wltb two-tbizds of tbo Pzesidont'o brlof.
Tbozo bo sot* out in bzood ootlino tbo Esocutlvo prlvilogo wbicb
bo needs Id ozdor to corry out bis constitutlonol duties, or
statutory duties.
Seootor Ervis, Qiairoon of die Coaoittoo, has frequently
stated tbat ho ODoeurs and agrees tiiere aust bo an Executive
privilege liioro tiio President nist bo in a position to be able
to withhold certain ■aterials in order to preserve confidentiality.
We are here not on the broad issue, we are not asking
this Covnrt to declare a Jroad order oo Executive privilege* We
arm here to talk about a very narrow case and we ask that as the
Special Prosecutor asked the Court to aske a detemination
whetter or not Executive privilege issue is properly raises here
and it is for the Ooort as Tour Honor z^ed, to detezaioo that
issue, and here what we are asking for is not all the papers of
the President. We are not adclng for a rampage ^rou^ the
President's papers, the spectre daottfao President's counsel
raises as be did in the prior case —four hundred separate
district courts cowing in and all suites being drawn to get the
President's papers is unreal.
917
12
TWL CODCT: Let mt ask joa this quastlon: tbc function
of TDor cooalttc* is entlxelj dlffersot than tfa« fanctloB of tfa«
grand Jtnry, «w know that. Too have a legialatlva fooctlna.
ML. SASH: Tea. I aoggcat, Toor Bonor, It la not onlj
different bat I B*y equal If not mam Inportant In tfala caaa bo*
cauae I vooLd aoggeat to Toor Honor - •
THE COOBT: — '00«» do you know of any other caao In al*
nost two hundred jrears of hlatory of our government nbere the
same approach has been made, where a person, say, has been sab>
poeoaed to appear before tiie comnlttee to produce certain records
and refusal has been nade? The usual way to obtain relief on the
part of the Cooalttee is either by getting the sergeant-of-ams
to arrest the person •— 'Of course jroo never entertained that idea.
Then you have Title 2, Section 192 of the United States Code
whereby you turn the laatter over to the United States Attorney,
Departzaent of Justice, to bring suite by way of prosectttlon.
You didn't select that. Mow Is this the first tine this avenue
has been tried, this approach has been tried by waj of declaratory
jodgnent?
ML. SASH: Yes.
THE OQRT: All you are asking for Is a ruling on the
legality.
tB., DASH: On the legality. And I thlidc the .onlqueness
and why we are In this position is not the responsibility of the
Coomlttee but the President put us in this position.
918
i'>
Ha would bavtt px«£«rxcd —as « mmttmx of fact, «a soit^t
ea obtalo tfaa tapa* froa tha paopla aho bad tiiea at tbo tljaa «a
laaroad of thalr azlataoca.
Am a aattar of fact, tho tapes and tliesa doeuBieDts
vera actually not in tha axcltaslva possasslon of the Presidaot.
Mr. But tarf laid tastlflad oodar oath bafora tha OMBaittaa that
tha Secret Service had tbea and they wexa aalotalDed and possessed
by tbea. Bat it is only uhea we sought to obtain thea that the
Pxesldent took exclusive control over tbea In a sense, using
an early analogy, put hlaself lo the schoolhouse door. And be
presented tite confrontation. Ordinarily we would have subpoenaed
an official subordinate to the President and then the proper
route would have been either a recoomendad. on for citation for
coDteiapt which we come tite crialnal route referring to the
prosecutor or the extraordinary way of our coonon law powers to
prosecute ourselves through the sergeant-of-arms.
THE COORT: What you are sa3rlng In effect Is this:
If the President had not personally taken possession of these
tapes. If they were not within his actual or constructive possess-
ion at the present tlaae, the CooBilttee would have probably pro-
ceeded by way of asking for an Indlctaent under Title 2, Section
192, If SOCKS subordinate had possession of the tapes?
ML. Uksa: Tes. As I say, we are put in this posldEi>a
because of the President's action. I thiok the Ooort can clearly
919
14
•
oodcrstatMS that nbexs tbc Presidcot hiasslf oo« has plaead hla>
■•If BM ttf peraon viio auat b« oonfxontcd 00 thl« Inns* that It
tfould ba ooseeoly of coorsa to osa otreoamon law powers tfaxoogb
Cba sargeant-of-sras with the PzasldaDt of the Onltad Stataa,
but «a also ballsva it noald be im8e^d.y to refer the Presi4eot
for crlnlnal iodlctaeot. As a natter of fact we may not be able
to because taking the President's counsel's om position tiiat
Che President cannot be indicted ooder tiiat particular statute
«ibich provides for a alsdeoeanor unless he is inpeached. So
jou have to go the ii^>eachaient route before you can even refor
to the prosecutor for Indictment. Therefore, really there was
no viable procedure for the Oooolttee. A very ugly confrontation
would have been presented if wc had gone the criminal route, or
the sergeant-of^arms route; and very frankly, idiere the President
now
himself /has asserted exclusive control, Che declaratory judgment
route really «4iat we are talking about Is legality of his claim
of executive privilege and it seems to me that claim doasa^t call
for extreme legal positions and we ought to take %)bat is a sensible
position that a civil suite such aa this allows this Court to
rule upon it as it did in the Special Prosecutor's case*
By the way, under Powell vs HeOormack it is not import-
ant «i)ether or not if you can rule on legality or action lAiether
your conoaod can be enforced against the President. As Powell^/
Stated it is perfectly Justiciable to do that even If ^ ultimate
question is whether the Court can enforce it.
920
15
So «• •abalc» Toar Honor* that ovon tboogh thi« io ob
omuaal com it la tbo first tiioo Ic has ever happoned aod I dalak
wc bavo to neat firat evonta with first procedures. Ibat does
oot change ths postore of thia caae. Aod whether or not tfala
case comes before Toar Honor on a civil law aait or cooes before
Tottr Honor en the legality of a crinioal prosecution, tbm issue
is the saas and we suggest that it ia ready for resolution.
The Bsjor question on the aerits, as I indicated, have
been tried by this Oourt despite defendant's counsel ignoring
of the ruling in bis brief. It nay be that counsel has this
Co'2rt*s opinion on appeal, bat this Court's opinion still is a
ruling, a very inportant ruliig historically, end we suggest
that when we are before thia Court and arguing before you, that
order is a precedent aod we rely on it.
THE COOKT: Excuse the interruption.
Tou mention tiie ruling is on appeal, it ia true. I
think the Coomittee filed an aodcus corae brief in the Court of
Appeals, correct?
ML. DASH: Tes.
THE COORTt It did not argue the question involved.
Was there any answer filed by the President's counsel to the
amicus brief?
ML. UASat The President's counsel opposed our filing
the amicus brief; die Special Prosecutor did oot oppose our filing
the anicua brief but opposed oar oral argument. The Court
921
osvcrcbeless aceepbed it 9ver th« President** objccCiot. It «••
• short brief and what v* really d&d 1b that caaa la send op t0
tha Ooart of Appeals oar brief before yon on eor aotiOD for
soonary Jiadgoeot.
THE COURT: I was going to ask you that. So the Court
of Appeals has before it now by reason of the fact you vera per-
mitted to file your anicos brief, setting forth substantially
the saae question you are raising today?
ML. DASH: Tes» but we are not before the Court of Appealt
and Che order and judgment of the Court of Appeals will not af&ct
us, and we were there -^-first of all the reason we filed tibe aodcus
brief. Your Honor, was we felt when the Court of Appeals, since
there was so much rush to get the case resolved, since the Court
of Appeals had it before it, when it would make its decision it
should understand that its Judgment was not Just passing upon
the Special Prosecutor's issues but the full spectrum of issues
should be known.
THE <^XJBT: That is i^at I bad in mind, tiae Court of
Appeals could in effect, if it desired to do so, recognize the
points you have raised?
MBi. SASH: It would be unlikely. Tour Honor.
THE COURT: Tou don't know, there is no way of telling.
tft. DASH; As amicus our only right was to argue i^<9
sense, or present the argiBoents to support Mr* Cox's position.'
We could not argue our position in an amicus case. And the issues
922
17
we raise, Toor tenor, %mcm raallj doc before the Ooort tullj.
m COmtT: It could, far exenple, if it itentad to do eo,
hevlqg in aljad its power end rights. Indicate bj tte^'of dicta «bat
it tfalnka about certain points 70a raise.
Ml. EASB: It aay, and it aay be helpful to Tour Rooor.
Mi^t be helpful to Tour Booor as to how Tour Honor rules. I
don't like to predict «ibat the Court of Appeals would do.
The claia of Executive privilege that is made here,
and I think Tour Honor has recognized this In the opinion, cannot
shiild possible criminal conduct anymore than the other privileges
do. And I think all privileges «Aicb are recognized by law yield
where the facts sought to be withheld arc necessary to resolve
questions of criminality.
I think the President through his counsel raises as
one of the important, or two major issues that they raise and
then some subsidiary Issues, and that is Judlclablllty which is
another %K>rd for trlablllty of the case before the Court under
Article 3, Section 2, and Jurisdiction.
Very frankly, we subm^ that the Select Ooiiad.tte«*s
complaint presents a fully Judiciable actfon for the Court,
putting aside the defendant's challenge to our Investigatioo undei
our resolution and authority to issue the subpoena to the Presldei
The Select Committee has subpoenaed certain tapes and
docuaents relating to criminal activity in the possessfon of the
923
18
President. Tlie President refused to honor these subpoenas od
the ground of Executive privilege. We seek through this complaint
for declaratory judgment through the Court of the right of the
Coaunlttee to obtain the materials subpoenaed.
The Supreme Court has held In United States vs Reynolds
which this Court has cited in Its opinion, and the Coamilttee
for Nuclear Responsibility vs Seaborg, and this Court has held,
that the Court does have responsibility to resolving these Issues
of Executive privilege.
In Reynolds you remember the issue was whether or not
the persons who were seeking some special Information, reports,
and dealt with sorne secrets involving a new airplane vhich crashed,
the goveru ;ant did proffer certain \r'.tnGsscs but the proffer vjas
not accepted.
In our case we had witnesses coraa fon.'ard. Of course
that is the uniqueness of our case because the very existence
of those witnesses creates a problem and need for fche tapes.
Although Reynolds clearly supports this Court's position that
it is a court's decision not the Executive's absolute power of
decision. Reynolds In that case found there was no right of the
plaintiffs to get the reports.
Here Xv-a are not asking for Qillltary secrets or nationnl
security reports. As a matter of fact, we are asking for the
other side of the coin of the conversations we heard. We have
heard the testimony. All we wnnt is that same conversation which
024
19
uas recorded. And It seems to us, and I will get to this very
shortly under our waiver claim, that If we have heard the testl-
oaony I see no reason why we shouldn't be able to actually hear
that saiue conversation that has been recorded.
Now, a proceeding under the Declaratory cfudgment Act,
and I think I have gone into this In answering your questions
are especially appropriate in this case for reasons I have given
you, vje do not want to seek because the President Is placing
himself in a pos? :ion of confrontation, the criminal route —
the reason the criminal route. Your Honor, is not a good one in
this case. In fact, it would actually be a very poor procedure
for us if we had It, it was probable to get the President indicted
under the staL -te before ha is impeached, the crlnlnal route is
a lengthy one. One would have to refer that; to the prosecutor,
v.'ould have to go to a grand jury, would have to be an indictment
in a criminal case and our committee has a short life. We must
file under our resolution our report by February 28, 1974, and
I don't believe a criminal case oould be really resolved and
disposed of, taking appeals and everything else by that time.
Where basJ-cally the issue is Executive privilege a
civil law suite is more expeditious and pcrrnlts a more workable
solutf in to the controvucsy and this Is exactly, by the vjay,
the procedure followed in Powell vs McCorraack, where a very
knotty IsDue was presented before the court, where the question
925
20
of the right: o£ Congress » or the House of Representatives to
deterdbe the qualifications of Its own tnembers. And here the
Court didn't flinch from resolving that issue. It said It could
interpret Constitutional provisions and It did file a. declarator
Judgment and In Powell the Court said this was a very useful
procedure and it was useful especially because it (nay be dealing
with an area where the order of the Court couldn't be ultimately
enforced but actual legality of the position could be determined.
On the question of whether the order of the Court
could be enforced or not I v.ouldllke to follow Your Honor's
position in the opinion that we ought to expect that the President
will in ttelast analysis vjhen final court decisions are made,
obey the final Court Oacisions, and he in fact has indicated that
he will.
The matter is justiciable despite the fact the President
is the named dcfendanf as was made clear by Cliief Justice Marshal
in United States vs Burr, andaore recent in the steel seizure
case where in fact it v;as the President's ruling in seizing the
steel mills that were in effect. And this Court has held In the
Special Prosecutor's cace that it has the power to act In a
case essentially the s.ir.;2 as ours which is broujiht against the
Prosiflont,
The Select Committee would have had it differently
as I indicated. Vc vjould have preferred to have proceeded
against a subordinate. This was taken away frota us actually by
926
21
the decision of th ' President In his very sudden seizure of the
exclusive control of the tapes and documents and foi-cing us really
to proceed against hio.
Defendant's counsel has presented. Your Honor, what we
consider a labored, if not tortured argument that our case is
not justiciable for trial before the Court, In essence he claims
that our complaint presents a political question x^liich cannot be
decided by this Court. Actually if you take the judlciabillty
argument that the President makes in his brief it is in effect
an argument contrary to this Court's rule because it is based
on what he considers to be an absolute unreviewable Executive
right to determine Executive privilege. Tlicrefore, if It is so
it is a political question comraltteed demonstrably by the ConsCi-
tutloo to the President and therefore this Court can't review it.
We submit. Your Honor, there is really nothing in the Constltutioi
that supports them. There is no demons treble co;.. ilttment to this
issue to the Executive Branch. He reaches out for definition
of a political question set forth in Baker vs Carr and later re-
stated in Powell vs HcCormack, and he seeks to identify this so-
called textually demonstrable commitmsnt to the Executive, and
what he comes up with is the fact that the Constitution does
vest in the President executive power. We a<irea with that.
The Constitution docs provide tliat the President may
require wiitten opinions from his subordinates, and we would
agree with that. The President does have tlie pov;er and the duty
927
22
to give an annual State of the Union report to the Congress.
They suggest that Is the only time the President can give lofor-
mation, that since It Is an annual state of the union message It
Is by Constitutional requirement of his message rather than by
subpoena and the Information Is obtained fxt>m the President.
We suggest that Is a distortion of that provision and certainly
not a textually demonstrable commitment. And also the President
is required to enforce, to, take steps to enforce the law. We
not only agree with that but feel it is inconsistent with his
duties to take steps to enforce the laws by standing in the way
of enforcing of the laws by Special Prosecutor or our seeking
of the tapes for the purpose of mrking legislative recommendations
for criminal statutes.
And just briefly in response to Your Honor's question
vhich I began to more fully to respond to, on the difference
between the Special Prosecutor's responsibility and our responsi-
bility it certainly is a difference. The Special Prosecutor Is
a prosecutor and he is proceeding before the grand jury and ul ti-
the re
mately if the grand jury finds probable cause/will be an Indictment
In a criminal case and it is his duty to determine whether or
not there is proof beyond a reasonable doubt for a conviction.
Our responsibilities. Your Honor, Is coordinate. It
is certainly not Inferior to the duty of the prosecutor to proceed
by criminal prosecution. The position of the Senate Select
Committee under its mandate is to first fully Investigate the
928
23
facts, and the President doesn't disagree with our i^ower Id that.
And to corae up with legislative recommendations for reform.
Your Honor, this particular case In the crisis that has
confronted the country du^ to what In essence was a breakdown,
corruption of the electoral process, we submit that the duty of
the Select Committee In carrying out Its responsibilities may
even be greater actually If you are looking at a priority for
this point —I was going to say In this point In time, I better
watch my vocabulary. But as a matter of priority It Is perhaps
more Important that our conrolttee will forward Its work because
although it Islmportant that people who have engaged In wrong-
doing be brought to the bar of justice and be convicted, but It
is much more Important if a state of fact existed vshich had
corrupted the electoral process which can actually endanger our
free society, then it is the Congress that after idctitlfying tliese
facts come forwaird for legislative recommendations which might
prevent this from ever happening again. And I think we look to
that as a very essential and important duty of the Congress,
That also leads again to my response to Senator Inouye's
statement that the only way we can do this effectively is by
getting all the facts and making a full report, and also having
public support for what v;e do.
This Court has stated in its opinion as It reviewed
the Constitutional history that the fact that the President la
a named party it does not prevent t'nls from being a justiciable
case. You in your opinion reviewed the Constitutional history
929
24
and found as a tDatter o£ fact: thac there Is no special privilege
for the executive that was ever provided even though there is
a limited one for the legislative, \^atever executive privilege
a president has does not come from a textiJaliy demonstrable
commitment.
I think your own Interpretation of the constitutional
history shows there is none, there is no textually demonstrable
commitment. It Is Implied, it is there, whatever executive
privilege the courts recognize we recognize. It is there to help
hira carry out his constitutional duties and that is why it is
for this court to determine whether or not he has in individual
cases;
Defendant's counsel overlooked the distinction the
Supreme Court made in Baker vs Carr between a political question
vjhich the Court said the Court shouldn't get into, in political
cases.
There are many cases where courts get involved in where
it may be called political cases because it involves the Congress,
or the Executive Branch. The fact there is a political issue
does not tnhke it a political questrtoo and in Baker vs Camr the
Court said the Court cannot reject as a. no law suite a bondflda
controversy as to v/hether some action denominated "political'*
exceeds constitutional authority. And the Court emphasized the
necessity for a discriminating inquiry into precise facts of
each case. And I suggest. Your Honor, that is exactly what the
34-966 O - 74 - pt. 1 - 60
930
25
counsel for the President has not done here. There has been
no discriminating inquiry on precise facts. The brief we have
here is a very broad brief of justiciability issues on executive
privilege generally but nothing that addresses itself to what we
are talking about here in the Select Cooimittee's request for the
tapes.
We are not, as I have indicated, asking for any ruling
by this Court that the President doesn't have Executive privilege.
He certainly does. We are saying that in a particular situation
where we have identified the tapes by the tape, by the minutes
of the conversation where vie have already by testimony indicated
what was talked about during that period of time, and that we
have made a pricaa facie case by the way of Mr. Dean's testimony
of possible criminality on the part of the President that Executive
privilege clearly cannot be stated here.
It is that narrovj ruling that we ask for, and no
broader one. And we ask Your Honor to recognize that as the
only thing we are asking the Court to do in this case.
Counsel for defendant ignored these facts and only
discussed the very broad issues which we agree with. V7e would
sort of say amen to practically everything he says in the brief
on these issues.
This is a very nar.owcase as I indicated. It is not
liV.e, by the way, the Mississippi vs Johnson, where th« President
thare v;as exercising a discretionary power of his office whether
931
26
or not, or how he vas going to carry out the Reconstruct ion Act.
It Is clear where the President Is acting on a discretionary area
vlthln his of £loe no court should Intervene and tell b Im how to
exercise Executive discretion.
But as Your Honor stated In your opinion that response
to a subpoena where there is no Executive privilege is in a sense
a ministerial act and not discretionary act and we are notdeallng
with anything like Mississippi vs Johnson.
Finally, counsel for the President's argument on
Justiciability depends completely on the plain as I*ve Indicated
that Executive privilege is an unreviewable, absolute power of
the President and so far as this Court is oo nceroed this Court
has rejected that argument.
Now on the question of Jurisdiction, viilch is the
second main branch of the President's challenge to our case, we
submit that we have Jurisdiction to bring this suite clearly
under 28 U.S.C, 1331, granting this Court original jurisdiction
of all civil actions wherein the matter in Controversy exceeds
the sum of $10,000 exclusive of Interest and costs, and arises
under the Constitution laws or treaties of the United States.
Now the only attack that the President's counsel makes
on our claim for Jurisdiction here is the amount la controversy
issue and do we have an amount in controversy exceeding $10,000.
Your Honor, we submit we very clearly doi.
932
27
THE COURT: Excuse me. Isn't It true that your posltloo
regarding the Jurisdictional amount under 1331 t^ilch you Just
mentioned. Is a claim not measurable In dollars and cents can
nevertheless meet the $10,000 minimum Is a minority view as far
as decided cases are concerned?
MR. DASH: Well, on the one it is not measurable, I
would say yes and It deals with the question o£ Important Constl^
tutlonal rights as will be treated as meeting the amount In contro
versy. But we are not relying just on that,- Your Honor, we think
It Is measurable.
We think and as a matter o£ fact have set forth In our
affidavit of Senator Ervln, and by the way, there are cases
that support that whole area. The President says that the Issue
Is what Is the value of our getting the tapes? Well, the value
of t:he tapes on the other side of the coin Is what direct cost
to the Committee corns from our not getting the tapes. Here we
are reaching the point. We are seeking to find all the facts
In the case and we are confronted with the discrepancies that
we do find between Mr. Dean's testimony aid the otiiers. And
without the tapes, to follow our mandate to get to all the
Issues that we do under the resolution, this will take — >lf we
had the tapes nov;, by the way, and I think Senator Ervln said
this frequently, we actually can terminate our hearings much
sooner and write our report much sooner* And it Is not the
933
length o£ our hearings I am referring to. Even v^en our hearings
are terminated » and ue have reported. Your Honor, publicly, that
we Intend to terminate these hearings fairly soon sometime In
November. But If we haven't got these matters resolved, the
staff Instead of being screened down to a small staff that can
now write a report, will have to keep all of Its Investigators,
or at least a substantial number of them. Its lawyers. In order
to continue the Investigative process to zesolve discrepancies
we may still have executive sessions %^ere one senator will sit,
and the cost of this, and we have actually audited It out, or
counted It out In the affidavit what It costs us a day to operate
and what It costs If we go on to extended public hearings and If
you put that Into effect, the unavailability of tbe tapes to us
to carry out our mandate In effect can be measured In an amount
of money more than $10,000.
THE COORT: Do you have any precedent to that? Do you
know of any other federal case precisely on that point, whether
you can use Section 1331 on the facts?
MR. DASH: Thexe are a number of cases I think in our
supplemental brief, I think on page 17, Your Honor.
Bltterman vs Loulsvllle-Nashvllle Railroad, and
Federal >Litual Icapllment and Hardware Insurance Company which
was an Eighth Circuit case and Bltterman was a Supireme Court case.
These cases dealt with, for Instance, 1^e Fedevn&ed Mutual Impllmer
934
29
aDd Hardware Insurance case Involved and Insurance company seeking
from
to enjoin one of Its former agents/acting In a particular terri-
tory. The failure of Its getting that particular relief would
mean the cost It would have to engage In to police that agent.
In the railroad case thei% Is a suite to enjoin the railroad
from spewing ashes all over the community. Even though an action
by the court coming earlier VTOuld mean that It wouldn't cost
$10,000 because the ashes would not create that kind of damage.
The fact an on-going situation. If the ashes were continuing,
would cause the community the expense and tie re fore a direct
flowing cost from the failure to get relief Is really measurable
In money. And I think we have not sought to speculate even, by
affidavit of the Chairman we have given you figures what It cost
us and we have Indicated, although we don't have to indicate to
you how many specific days It might, would clearly say on the
basis of running this investigation it would be way over $10,000.
We really think this is not a new issue before the
Court, but it is a really proper method of determining the amount
of controversy.
In addition. Your Honor, we point out and counsel says
they will not dignify the argument that the worth of the tapes
to the defendant is a matter that can be considered. We cite
some cases to that area and Px> fessor Wright in his own treatise
actually states what the cost to the defendant ml^t be in the
outcome of the suite is a method of sieasurlog it. And I think
935
30
here to the President we have raised the quetloa of what the
tax value may be actually Involved In the Presidential docun^nts.
X£ In fact these tapes do reflect vhat Mr. Dean has testified
to, and it Is very unfortunate they do, and we sincerely state
to the Court we hope the resolution of this case will not show
Presidential involvement. If they did, what the value to the
President in this case Id terms of his present position and in
response to an accusation it certainly would exceed $10,000,
and we cite cases in our brief which indicate that is a legitimate
method of determining amount In controversy.
We cite, by the way, a number of others. Out of an
excess of caution. Tour Honor, we have cited our jurisdictional
powers mandamus, under our right to sue in the name of the United
States which we believe we have the Administrative Procedures
Act, we cite those not just make way, we believe they are valid
basis for jurisdiction and I think %fe fully brl6£ed those, and
the President has briefed them and they axie befaire Your Honor
and I wouldn't want to take Your Honor's time unless you have
specific questions. But what we really rest on primarily is
1331 and we believe we make it and I don't know of a case where
an issue of this kind has come before a court, although we are
unique in nature.
THE COURT: I'm glad you mention that. You are really
relying primarily on Section 1331 oq tbe question of jurisdiction?
HSL, DASH: Yes,
936
31
THE COURT: Tou made sooie argument In your brief re-
garlng Article 3 of the Constitution.
^R. DASH: Yes. Under the resolution of the Senate
which authorizes us to sue In the name of the United States we
feel we do have Jurisdiction under 1345 and under Article 3
where there Is no statutory basis, and the United States Is
bringing an action under the Constitution and laus of the United
States. And also this Court's very ruling or in Its statement
we are dealing with an admlnlsterlal act not a discretionary
one we believe brings us under the mandamus area although we are
not at this point asking this Court to pass upon v^ether or not
a writ of mandamus should Issue, It is a declaratory judgment
we want. V7e also believe there Is sufficient dicta In the cases
to indicate that the President is an agency and can cocoe under
the Administrative Procedures Act.
As I have indicated, we believe that vs have very
strong jurisdictional basis in 1331.
Kow, what I would like to get to now is the Connsittee's
authority because as another branch of the argument the President
makes against our position, through his counsel has indicated
the Committee has exceeded its authority under the Constitution,
under legislative powers of the Constittt ion, and under its
resolution.
Under the Constitution, Tour Honor, may I submit that
there is no disagreement between the President's counsel and us
937
32
as to the Constitutional powers of Congress to conduct legislative
Inquiries for the purpose of legislation.
I think Its position is that we have got enough evidence
already. In other words. If you established the pattern of
criminality what more do you need In order to write a report and
come up with recommendations. I thick he Ignores tlie fact of
what kind of consnlttee we are. We are, by the way, called the
Watergate Comnlttee so often they forget we are the Select
Coaualttee on Presidential Campaign Activities. And that Is the
thrust of our committee and the fact Is that the Presidential
campaign Is Involved, the President involved, and candidates for
the presidency are Involved, and the resolution Is a broad one.
The resolution calls for an Investigation of what
candidates for the presidency did In 1972 and Mr. Nixon was a
candidate for president although Incumbent president, and what
others did, criminally, lnq>roperly, or unethically. And, Your
Honor, «diat in a sense the President Is arguing is that we should
do a factual inquiry but not too much. In other words, go so
far and stop. DoD*t try and find out who really di it, it is
not yoor business. When you really tiry to find out \ixo really
did it you are exposing for exposure sake. And I submit. Your
Honor, in the Teapot Dome case the Select Committee in a very
unique situation similar to ours, the scandal that was taking
place in the country, the inquiry was what was the guilt of tdie
938
33
attorney general. And the Presldeot accepts this on the grouDd
that Congress has Jurisdiction to legislate on th«: o££lce of the
attorney general. What he Ignores Is that we are not claiming
that our legislative purpose Is based on what we will be able to
legislate -^Itb regard to the President himself and presidential
duties. Re again forgets that this Is a Select Committee on
Presidential Campaign Activities and the Congress does have the
power to legislate on presidential elections » on presidential
campaign practices* and that has to deal with candidates for
the presidency, and It may be an Incumbent president who may be
a candidate.
And the legislation that will come forward fxom our
Investigation may well deal with restrictions and llmltatlooa
on candidates for the presidency during an election. And I think
It Is fairly clear and as I said before, we would hope this would
not be the outcome of the Investigation, but if it were to be
established that the criminality of the President existed, this
would call for drastic legislation that as I think the term of the
Special Prosecutor has the right of going that far. It would
call for drastic legislation. And we would have to establish
thatjust as in other committees --the McClellan Committee on
Improper labor activities— what union leaders did, how far did
It go? It was very Important for the determination of what was
the extent of legislation If these were Just underlings^ You can
939
34
take care of that perhaps with existing laws on the books already
or some minor aioendaient. But i£ you really can show that the
process has been interrupted so much then perhaps ve need a re-
working o£ our electoral process.
And 1£ we had to do that, I would like to make a second
point the President's counsel ignores. That you cannot get a
drastic change in the laws on election for president unless you
have full public support. And it is our responsibility to take
this investigation as far as ve can take it and to prove who in
fact was involved, if in fact the President was involved, then
certainly the public support for drastic legislation would be
insured. And it seems to me that is a responsibility and that
is <Ay this is not a question of our exceeding our authority.
Our authority is to legislate, it is to legislate in presidential
campaign activities and we are acting witiiin that constitutional
authority.
Now the President Indicates that our resolution may
not permit as to carry out this responslbilityVand primarily
he is referring to the issue of whether or not our resolution
authorizes us to subpoena the Fires ident.
Again, I must repeat, he ignores the name of our
committee and our committee mandate and resolution. This again
is the Select Coomittee on Presidential Campaign Activities.
The President is in the center of this coamittee's focus, not
the President as the President, but the President as a candidate
940
35
for the presidency. And as Senator Ervln, and we quote In the
motlOD for summary judgtnent the language of Senator Ervlo In
legislative history Just before the resolil: Ion was adopted, he
stated to the Senate: that this resolution would call for the
Investigating whether any candidate for the presidency did anydilog
wrong.
Senator Scott, to quote his language, says: this Is
probably the broadest resolud on ever adopted by any house of
congress and would permit the connlttee and Its staff to go Into
the Executive Branch to ferret out the facts. And he is not
making that statement by way of criticism but by way of defining
the resolution and asking for certain amendments to get equal
representation among Democrats and Republicans.
Therefore, Your Honor, under the resolution ve deal with
the President in the resolution. As a matter of fact I can read
this very quickly because I think It may be liiq>ortant.
Section 1(a) of the resolution says:
"There Is hereby established a select committee of
the Senate which may be called for convenience of
expression, the Select Committee on Presidential
Campaign Activities, to conduct an Investigation
and study of the extent. If any, to which illegal.
Improper, unethical activities were engaged In by -. ;
any person acting Individually or In combination with
941
36
others Id the presidential election of 1972, or
any related campaign, or candidates conducted by
or on behalf of any person seeking nomination."
And I fiould like to emphasize "by any person seeking
nomination'*. And President Hizon was a person seeking nomination.
Tour Honor, it goes on in a very broad way and we submit the
subpoena power of the coanalttee in the resolution clearly indi-
cates that the officesof the Executive Branch, including, and
would reach the President.
We submit that the question of whether or not the
resolution. Section 3(a)(6) which says the committees have power
to go back to the Senate to seek remedies to enforce a situation
where a person doesn't honor a subpoena goes back to what jrou and
I were talking about earlier which would be the traditional method
of going back to the Senate for a cooteeopt procedure. But clearly
under the 1928 resolution we have cited wfalch came after the
Reed case, the Senate authorized all its consnittees to go into
court €o enforce its rights and it is a. discretionary power in
the cotonlttee to go back to the Senate. Under the resolutloc
we have the right to do this on our own.
The Eoerits, as I have indicated earlier, in large have
been resolved by Your Hotor. We suggest even thotgh this now is
a matter between the legislative of the Congress and the Executive
there is no distinction between that kind of issue on executive
942
37
privilege as Your Honor ruled , and betweeo the graod Jury and
Executive. Here agalo we turn to the Court as arbltor o£
executive privilege as Reynolds aod Powell vs McOormack has
lodlcated the Court should engage in.
I Just want to end by one very short reference to the
question of waiver which the President's couosel alnrast Ignores
except perhaps for a footnote.
In this particular case he makes quite a point of the
need for the President and confidentiality. Executive privilege
is to preserve the confidentiality the President must have with
people he oust confer with. Again we agree that generally that
is why executive privilege exists. But actually it is a farce.
We talk about confidentiality in this particular case. What
confidentiality remains after the President by letter to Mr.
Sean and to the Committee waived executive privilege and attorney
client privilege when He. Dean was called before the Coasaittee
to testify to the very conversation. He authorized Mr. Dean to
teir this committee everythlqg that Mr. Sean talked to him about
on the day we asked for these tapes and then Mr. Haldeman was
given some of the tapes aod was authorized by the President to
come before the Committee and testify to at least some of the
tapes. And the President himself in public statements has given
his version of the tapes » and be also has given his version of
the tapes to his couosel in written form.
943
38
So we have had so many versions o£ these conversations
vifaat confidentiality remains? What Is to be protected? What
secrets remain there? Although we have heard la one of the tapes
In the argument the President's counsel made In Mr. Oox*8 case,
isj& very, very Important military secret.
Tour Honor, I think If that exists that can be excised.
We don't seek military secrets. We seek the conversations re»
porded of the testimony t« have already heard.
And we submit. Your Honor, that on the issue of confid-
entiality the President has really no standing here before this
Court.
Thank you.
THE C(X£T: Mr. Wright, so I won't have to Interrupt
you during the middle of your argument, we will take a fifteen
minute recess and you can go right through with your argument.
MR. l^IGRT: That will be perfectly agreeable. Your
Honor.
(Recessed at 11:00 a.m.)
944
39
AFTER MID-MCTtNIHG RECESS — 11:25 a.m.
THE COURT: Mr. Wright.
MR. WRIGHT: May It please the Court: having had the
privilege of association for many years with Mr. Dash and work
with the Anerlcan Law Institute, I was not surprised at all by
the very fair, balanced and lucid statenent of this case that
he made, nevertheless, it seems to me the argument is but an-
other manifestation of the infectious spirit of Watergate in
which I have spoken to this Court before, that the end Justifies
the means, "damn constitutional distinctions, full speed ahead."
The most eminent — I think that is a fair character-
ization of legal historians we've had in this country, was
Charles Warren.
In 1930 in Volume 10 of the Boston University Law
Review he wrote an article entitled "Presidential Declarations
of Independence." It is a lengthy and comprehensive review of
the nixnber of times the presidents through our history from
Washington on have had to take firm and very frequently unpopular
steps in order to preserve the Independence of the presidential
office against attempts by the congress to encroach.
Mr. Warren concluded that article with this paragraph
that- 1. think is quite relevant to the case:
"Whenever any branch of the government exceeds the
limits of t he grants made to by the Constitution,
it to that extent ceases to represent the people
945
40
and assicnes arbitrary power. Defense by the
Executive o£ his constitutional powers beccxnes
In very truth therefore, defense of popular rights »
defense of power which the people granted to him."
It was in that sense President Cleveland spoke of his
duties to the people not to relinquish any of the powers of his
great office. It vas In that sense President Buchanan stated
the people have rights and preirogatlves xn the execution of his
office by the President which every President Is under duty to
see» shall never be violated In his person but passed to his
successors unlupalred by adoption of the dangerous precedents,
in maintaining his rights against the trespassing congress the
President defends not himself but the popular governaent, he
represents not himself but the people.
It Is in that spirit that President Mlxon in this
case takes what is demonstrably an unpopular position of In-
sisting on the confidentiality of his office.
Eefore we get to the merits of this case and the ob.
vious distinctions In my mind between this case and the case which
I had the privilege of appearing before Your Honor a month or
more ago, a,i distinction Incidentally I believe the Court Itself
drew very clearly in footnote 11 of Its opinion in which It said
the views there stated are not necessarily representative of
being accurate with regard to presidential refusals to respond
to congressional demands for Information.
34-966 O - 74 - pi. 1 - 61
946
v^ ■ ■ ^ 41
Before going to the merits, as tempting as they are,
it seens to me we have to consider the extraordinarily formidable
jurisdictional obstacles that lie in the way of this unprecedented
suite.
Prior to the commencement of this action it was widely
reported in the press that Mr. Dash and Senator Ervin had met
with two distinguished academiclania. Professor Bickle and Prof esse
Kurlan4,and they had been advised by Professor Bickle at least,
the only way the Senate could bring a suite was to get a special
act of Congress authorized. They apparently concluded the
contrary and we shall demonstrate that they would have been better
advised to follow Professor Bickle* 8 advice.
First with regard to the nonjusticiability of the case
because it is a political question. There Is a great temptation
to suppose the political question doctrine is if not dead at
least shrunken to very tiny dimensions since Powell v McCormack.
I must confess I had taken that view myself.
The Supreme Court taught use forcefully only last Jvme
we were wrong i a the case of Gillian v Morgan, 93 Supreme Court
2440, in which t he Court in facts that are far removed frcn
our present facts, the Coiirt went out of its way in holding
a particular matter nonjusticiable to criticize the Sixth
Circuit because the Sixth Circuit used the phrase diminished
vitality of the political question doctrine. The Supreme Court
said that phrase was inappropriate, inaccurate, the doctrine is
still of full vitality.
947
42
To me this case IsqulJ^tsssentlally a political question.
We tiave here for the first tine that I knou o£ in our history
a suite in which one branch o £ govertxaent, or a representative
group of one branch of the government is suing another branch
of the govemaent. And if that does not represent a nonjusticiable
political question I do not know vhat does.
The cases that my friend Kr. Dash cites, he cites then
both at pages 6 and 7 of his memo and the same cases again at
pages 6 and 7 of his reply memo, are all distinguishable, they
were all cases in which individuals or corporations were claiming
that their rights had been violated — Youngstown Sheet & Tube
said there was no right to seize the steel mills. Runphrey*8
Executor said there was no right to fire me decedant from his
position; Lovett the same thing;' Congressman Powell claimed
the House had no right to exclude him; Pocket Vetoe cases, the
Indian Tribes were claiming that we have a right to take advantage
of benefits Congress tried to give us in this case and which
the President exercised the pocket veto.
So they were all cases in which the courties adjudl>
eating as courts traditionally do on a claim of individual rights.
During the course of nonjudlcation courts frequently are called
upon to decide constitutional questions but they are not precedent
I submit, for a case like this in which one branch is confronting
directly another branch and comes to the third branch and say,
you please be the referee. We think that this i? what the
948
w 43
political qusstlon doctrine prohibits. We challenge the
statutory Jurisdiction of t he court as well.
Mr. Dash has Indicated that his principal reliance
for statutory jurisdiction Is on Section 1331, so I will reserve
that for the moment and deal with other claims of jurisdiction
because I think they can be disposed of rather quickly.
There Is first an assertion in the supplemental memo
at pages 22 and 23 and again In the reply memo at pages 16 and
17 that no statutory grant of jurisdiction Is necessary but
suite can be broxight directly under Article 3 Itself. If that
Is so a long line of Supreme Court cases going back at least
as far as Cury vs Curtis In 1845 and as recently as Powell vs
McCormack In 1969 are wrong. The Supreme Court has always said
Congress controls jurisdiction, you cannot sue under Article 3
alone. The two cases relied on by my frlisnd In re Debs and
New York Times vs United States were not to the contrary, they
were each cases brought by the United States and ever since
Section 9 of the Judiciary Act of September 24, 1789 there has
been statutory authority for jurisdiction for all suites coasnenceci
by the United States. So that arguement I think requires no
consideration.
With regard to Section 1445 they expressly disclaim
that they come under the clause granting jurisdiction to a suite
brouht by an agency or officer authorized by act of Congress to
sue. They say no, that we are suing In the name of and on behalf
949
^ w 44
of the United States, Well, that they can't do because an act
of Congress, Section 516 says who may authorize suites la the
oatae of and on behalf of the United States and It is the Attorney
General of the United States and the Attorney General alone.
There Is no claim here the Attorney General has authorized this
suite or has brought this suite.
The suggestion that any group, vhether It be private
citizen, senators, the Select Ccmmittee, can come into a court
and say we are the United States and we are going to sue in the
name of the United States, is a strange contention indeed.
Senator Ervin seems to be saying to us,"L'etat, c'est mo^
a remarkable position for him to take.
With regard to Section 1361, the quick answer to that
is that it applies only to ministerial duties. The cases we
cite at page 31 of our brief show that the ministerial duties
can be compelled by mandamus are only those where the officer
is under a positive conmand and so plainly prescribed as to be
free froa doubt.
Now that can hardly be contended to be the case here.
It seems to me the logical Implication of the position that you
can mandamus a president to profJuce papers to a congressional
committee would have to be that the President has no discretion
in the matter at all, that there is no executive privilege.
If any element of presidential discretion is recognized then this.
cannot be the kind of ministerial duty that is compelled under
Section 1361.
950
"~ 45
Finally^ the Adnlnlstratlve Procedures Act, I must
say that their reply memo at page 17 gave me a start. We have
cited three decisions o£ t he Coiurt of Appeals from the District
of Columbia in our brief at pagd 35 to the effect the Adninis-
trative Procedures Act is not an independent grant of Jurisdiction
that is in accordance with majority rules throughout the country.
But in the reply meno my friend said the Independent Brokers
case, 442 F.2d in this circuit held it is an independent grant
of Jurisdiction. My first reaction was one of irritation with
my associates to whom I delegate the responsibility to shepherd-
ize all the cases they cite because I wondered how we could have
missed this most recent case. That faded when I read the
Independent Brokers case and found it did not cite any of the
three preceding cases from this circuit on point. That seemed
odd, seemed unlikely the Court of Appeals would overrule three
of its prior decisions without even the courtesy of a passing
mention. Then reading fully the Independent Brokers case seemed
to me clear Judge Leventhal was not talking to subject matter
of Jurisdiction at all but in the sense we are here, but the
issue in Independent Brokers was whether informal action of the
SEC in merely writing a letter was the kind of action reviewable
or a secondary issue was if so, was it within the exclusive
Jurisdiction of the Court of Appeals to review?
Subject matter of Jurisdiction existed as the complaint
plainly alleges under Section 1331 because this is a case arising
951
46
under Constitutional laua of the United States where more than
$10,000 Is In controversy. So the jurisdictional issue decided
In Independent Brokers, I think, can no way be fairly read as
overruling the three explicit statements by the Court o£ Appeals
that the AFA Is not an Independent grant o£ Jurisdiction.
We come back then to Section 1331. On Section 1331
the key Issue Is whether more than $10,000 Is In controversy.
As I understood Mr. Dashes argunent he recognizes majority.
Indeed, virtually the universal rule Is that a right that cannot
be valued In dollars and cents cannot satisfy the amount In
controversy. And he Is absolutely correct when he s ays that
In my book I espoused the point of view you look to either
plaintiffs or defendant, that Is right, that Is what I hope
to be the law and I submit that neither from the p olnt of
view of the Senate Select Committee nor point of view of the
President can the value of these tapes be valued la dollars and
cents.
The Senate wants to get the tapes In order to hear them,
not to sell them, not to publish a book about them. The defendant
wants to preserve the tapes In order to preserve the conf Identlallt
of his office, not to take a tax deduction by giving them to
the General Services Adnlnlstratlon.
So If we accept what Z understand to have been the
law at least since 1862 In Mississippi-Missouri Railroad vs Ward,
that the mountain controversy Is the value of the object of the
suite.
952
47
1 submit we have here a case which the value of the
object Is not quantifiable. It cannot be given any dollar value.
I believe the cases that Mr. Dash referred to In his argunent
that he cites at page 17 In the supplemental memo are all adequate^
distinguished at pages 24 and 25 of our brief on the grounds
that these are cases in which the direct legal effect of the
judgment would have involved more dollars to the parties than
the statute required.
The second of cases he cites, for example, Bltterman
vs Louisville- Nashville Railroad, It 1 s In Volixne 207 U.S. and
not 208 U.S. as clt«3 In the brief, and was a suite by the rall^
road to prevent ticket agents from reselling tickets. The rail*
road sold tickets and ^ald these are nontransferable. Agents
were buying the tickets up and selling tickets themselves and
this was cutting into the railroad's business. There was a clear
financial loss to the railroad as the Supreme Court stated, far
is excess of jurisdictional anount.
The other cases are cases in which either tax statute
or regulatory statute is challenged as unconstitutional and
amount in controversy is said to be the amount that is directly
required by compliance with the judgment.
But I do not know of any case —Mr. Dash has cited
no case— in which it has been said that we can measure the
mountain controversy not by value o f the object of the suit but
by alteznative means we might have to go to if the suite should
953
48
be unsuccessful. That essentially Is what I think his argument
is that it would cost the Canmlttee more than $10,000 to finish
Its report if it doesn't have the tapes amounts to. I think
there is no authority for that. There is a lot of authority
that you may not consider side effects, collateral effects of
the decision in determining the anount in controversy. It is
only the direct legal effect of t he judgpient that is to be taken
into account.
Particularly instructive on this point, I think.
Judge Sirica, is the case of ^ealy vs Katta» a Supreme Court
case cited at page 25, I think, of our brief. That was a challe
to a tax that the state of New Hanpshlre imposed on hawkers,
people who went around selling merchandise from door to door,
in which the Supreme Court held the amount was not in controvoc i
because the only thing that could be regarded in controversy woi
be amount of tax. The osount of tax you had to pay to be a
hawker was $250 and at that time the statute provided $3,000
and so if you took into account all the years litigation might
extend it could not amount to the required sub. The company ha
shown that it had tried to avoid the effect of this tax by coo-
dJCting its business in a different way, that Instead of sending
its hawkers in actually to make the sale, sent its hawkers in
to show the sample and the goods would be shipped from out of
state and the hawkers would not be subject to the tax. And
when it tried to do its business that way It operated its bus!
954
49
at a very substantial loss. The Supreme Court said you caa*t
take that 1 nto account, that la not w hat this suite is about,
it is sanethlng else. All involved here is the challenge to
the tax Itself and not the e ££ect it might have on you if you
have to do your business in sane other way.
There is also an Interesting discussion in Healey vs
Rider and some of the other earlier Supreme Court cases that it
said in a suite challenging the tax-^iif the amount of the tax
itself is less than the amount the statute requires, it does
not matter the penalty for nonpa^^ent of the tax would be more
than the amount the statute requires, but if you lose the suite
don*t pay the tax and then you get fined more than $10,000 for
it that is a collateral effect.
So we do not think the affidavit of Senator Ervin
as to the cost the Committee may or may not incur if they lose
this case helps them in terms of jurisdiction now, although
Kr. Dash dldn*t refer to it in argument I think in the interest
of completeness I should say that at page 18 of his supplemental
memo he cites two unreported District Court cases: Kennedy vs
Sanson in this district, and Holtzoan vs Schlessinger in the
Eastern District of New York, for the proposition, and I quote
him: "The value of the constitutional rights and duties of
legislators satisfied the jurisdictional amount required.'*
I an very perplexed by the citation of these cases
for this proposition. In Kennedy vs Samson, in the 29 page
955
50
opinion of the Court ther* is no discussion of Jurisdictional
onount. In the rlssues^ralsed in the motion to dismiss there is
no listing of saount in controversy as being an issue in the
case at all, so it certainly held nothing on the subject and
indeed, Kennedy vs Samson seems to me to have been a typical
1361?case and required the administrator of General Services
to perform adnlnisterlal duty of publishing a law.
The c ase of Holtanan vs Schlessinger, reversed by
the Second Circuit, did discuss Jurisdictional amount but said
nothing about value in the constitutional rights and responsl^
bilities of legislators. It said we can look to the defendant's
point of view and it said from defendant's point of view the
bombing in Cambodia is costing many millions of dollars, therefore
much more than the $10,000 that the statute requires.
So I do not think that either of those cases support
the proposition for which they are advanced.
Even if the constitutional statutory barriers to Juris-
diction of this Court could be overcome we would then have to
consider whether or not the Senate Committee has authority to
bring the suite. And there again, I take a different view from
that expressed by my friend.
.Ve have devieloped at length and I will expound in
detail here on the point that a congressional committee, though
it has very broad investigative powers and the aid of legislative
processes has no power to expose for the sake of exposure. Tta t
956
51
I think Is very relevant to the passage that you, Mr. Chief Judge,
read to Mr. Dash early la the argument from Senator Inouye*8
appearance on Meet the Press > In which he said yes, if this vere
a criminal investigation ve would need the tapes, but for
legislative investigation we doa*t need the tapes in order to
write our report.
I received too late to include in our brief the trans-
cript of a discussion that Senator Gumey had on September 16
on the program "Capitol Cloakroom" — I have an extra copy of
the transcript that I will provide for the Court's use, and
lapologize, Mr. Dash, they Just brought me the transcript this
morning and I do not have a copy for your use. (Handed copy to
the Court )^ .
The relevant discussion appears at pages 7 and 8.
Leslie Stahl asked Senator Gurney:
"Senator, if we can tuim to the question of presidential
tapes, do you think they are essential to the investigation
that the Senate is conducting?
"SENATOR GURNEY: Ho. No, I don't. What is our duty
anyway? Our duty of course was to charter ... " , there
are certain words intelligible —
"to look into facts and circunstances of Watergate that
the presidential election of 1972, I should say, and
report to the Senate and recommend legislation we thought
was necessary in order to improve our political campaigns.
957
52
Now getting the presidential tapes really has nothing
to do with that charter at all* It does have some-
thing to do with who said what, on what day the
President met with John Dean or somebody else and It
really doesn*t have anything to do with what our charter
Is or Interfere with our ability to make recommendations
to the Senate to Improve campaigns.
"MISS STAHL: Well, then you thlnkyou can fully write
your final report without the tapes. Is that correct?
"SENATOR GDRNE7: We can. Indeed.
"STRASSER: This testimony would relate to what Is
commonly called the cover-up. Are you saying this
Is not part of the Caisnlttee*s Jurlstlctlon?
"SENATOR GURNEY: In answer to the previous question,
of course that was did we need the tapes In order to
write our report I said no, we didn't. The tapes
vould shed light on the Watergate affair, that Is true,
but that Is really not what our charter is and that
is to write our report and make recommendations to
the Senate."
THE COURT: Let me interrupt you a second. I was
about to ask Mr. Dash this question: whether or not he could
tell me, and I thought this would not be a fair question because
it Is not a matter of record, novi you have the opinion of Senator'
Gumey; I d6n*t know how the other members of t he Senate might
958
53
feel and I don*t know whether Mr. Dash knows either. We have
at least two members that we know h ow they feel about this
particular matter. All right.
MR. VRIGOT: We do Indeed.
And I think, Mr. Chief Judge, that Mr. Dash's argiment
today simply underscores our argunent that the purpose of this
proceeding Is criminal rather than legislative. Because If I
understood Mr. Dash correctly he said that he would agree with
two-thirds of our brief, that he and the Conmlttee recognized
It was a very broad executive privilege but It ia only because
there has been prima facie showing of criminal conduct the
ezectttive privilege must yield and they must be allowed to get
that. That seens to me very odd for the Senate to say, "Yes,
we recognize the President Is not under enforceable duty to
turn over papers to us until there Is a prima facie showing we
may be able to expose criminal conduct by looking at these papers."
That sounds to me like traditionally the work of grand Juries
rather than work of Senate committees.
We think that the authority of the Camalttee to pursue
the Investigation by bringing this action Is even more In doubt
enabling
under the/ resolution that created the Committee.
I will not repeat what we have said at that point at
pages 45 to 49 of our brief, but a general resolution that
authorizes a ccmmlttee to stibpoena an officer, agent, or anployee
of the United States Is not In common parlance read as meaning
959
—54
you can subpoena the President o£ the United States when no
subpoenas every before Issued from a Senate coomlttee to a
President of the United States the Senate must have understood
this resolution as merely giving the ccmnlttees powers they
always have had and not giving the comalttee power tso extra-
ordinarily unprec^ented as this one would be.
If I heard Mr. Dash correctly, he seemed to concede
even the privilege of Congress to preserve confidential papers
and not turn them over Is not an absolute one, that the Court
could compel a congressional committee to give its confidential
papers •
We cited some authorities at page 63 of our brief th±
show the unvarying practice of both houses of Congress has been
even
that this is not so, that/In criminal Investigations they will
not produce papers that one or the other house possesses either
at the request of the prosecution or at the request of the defense
unless the particular house in Congress consents. It regards
Itself as being the Judge and never recognized Judicial authority
to compel It to produce, so I t fenk the Senators xAio unanimously
-Voted for Senate teolutlon 60 might also be surprised to learn
not only they for the first time In history said you may subpoena
the President of the United States, but also they have set In
motion a proposition that was going to mean the Senate Itself
Is no longer the Judge of which of Its papers It will produce
In response to siibpoenas.
960
55
For all those reasons, Judge Sirica, we submit that
this court lacks Jurisdiction of the case. Necessarily, I an
now going to go Into discussion of the merits of the case, but
I do believe that the proper disposition of the case. If our
view of It Is right. Is that the Court dismisses for want of Jurls^
diction and does not discuss the merits, that If the Court has
no jurisdiction any discussion of the merits on the part of
the Court would be contrary to the usual way that the courts
perfozxB.
THE COURT z Let us pause a moment here.
Assuming, that olrd^cld^^ngfccoursej;! that the Court
should find there Is no jurisdiction In this particular Instance
here, that of course would e nd the matter, you wouldn't have
to get to the merits. If the Court decided the Court did have
jurisdiction then we'd have to consider the merits.
MR. WELIGHI: Correct, sir.
THE C0QRT: A very, very Important question in this
case as you realize, Mr. Dash and everybody realizes. Is the so-
called question of waiver.
V, Row, when the President of the United States authorized
Mr. Dean and Mr. Ehrlichnan, I believe, and Mr. Haldeman to
go before the Canmlttee and not claim any privilege and testify
openly and freely which apprently they did, I take it because
you have not answered Mr. Dash's statenent of material facts at
the beginning of his motion for Sumnary Judgpient, you don't tjuarrel
with those statements, at least you don't admit they are the
961
56
truth, but at least you haven't filed any opposition?
MR, WRIGHT: That is correct,
THE COURT: So ve start off on that premise.
The question in my mind is this, and probably millions
of other persons* minds, when the President of the United States
authorized. Which he did, I understand, Mr* Dean, Mr. Ehrlich,
Mr. Baldeman and whoever else might be involved, to go before
the Select Camaittee and testify truthfully to what they kneu
about this matter, did not he — and this is the answer I am
looking for from you and Mr. Dash— didn't he in effect waive
any privilege that might have existed, or is he in a position
today through you as counsel, to claim that he can pick and
choose in other words and select certain things and say this
is privileged and the o ther thing is not p rivileged?
This is one of the things that was in my mind when I
was writing the opinion. I couldn't decide the question unless
I could hear the tapes to decide that. This is a very interesting
and very important questicn, Mr. Wright, and you know it and
everybody else knows it, at the time he waived the privilege,
at least the public didn't know about the fact that he had been
recording these conversations in his office, that is correct,
isn't it, at that time?
MR. WRIGHT: Absolutely, yes, sir.
THE COl^T: I would 1 ike to hear your argiznent on
the question of whether or not he waived any right to claim
absolute privilege under these clrcunstances in this case. _
34-966 O - 74 - pt. 1 - 62
962
57
MR. WRIGHT: We believe that he did n ot, Mr. Chief
Judge. I an trying to locate the page in our brief In which we
touch briefly on that. We believe there Is no waiver for several
reasons •
In the first place, what the President authorized was
not for these witnesses to go forth and tell everything they
knew about presidential conversations. Their authority was
much more limited than that. The President said he would not
Invoke executive privilege with regard to discussions In his
presence of criminal conduct or charges of possible criminal
conduct arising out of the Watergate affair.
So the testimony has been limited to a very specific
matter on which the President concluded that the public Interest
suggested that the testimony ought to be permitted.
Now the tapes of course are not so limited. The tapes
cover discussions of many different matters, many of then wholly
Irrelevant to the veiry limited scope of testimony that President
Nl2on jls at^are of«
Second, it is our contention that allowing disclosure
of sane Information by a President Is not a waiver of things
that the President concludes in the public Interest cannot be
disclosed, that t he President honors executive privilege as
Professor Bickel says in the passage quoted on page 51 of our
brief, that executive privilege is honored as much when disclosure
is made as wh^i disclosure is refused. Indeed, the presumption
963
_) . J 58
must bd, I vjould think. In favor of dlsclosiire. The President
would want to respond to the fullest extent possible to requests
from courts and from congressional camnlttees to produce Infoxmatloi
Secrecy is not the nonn In Aaetlcaa government, it must be the
exception and it must be for the President to draw the line on
what the public Interest permits and what it does not. And we
think in Onited States vs Reynolds is exactly in point on that
where the United States said we will not produce these eontenporary
statements the witnesses made but we will allow the witnesses
now to go before you, you can take their deposition.
Any lawyer knows in a personal injury case you would
much rather have the contanporaneous statements of witnesses
than later testimony. But the Court instead of holding that
the offer to make the witnesses now available to testify was a
waiver specifically referred to at page 11 of 345 U.S. as a
reason for t^holding the governnent*8 claimthat it was privileged
and did not have to produce material for in camera inspection.
We think that is an absolutely controlling precedent with
regard to the claim of waiver. We have not discussed waiver
at length in our brief because we thought the waiver contention
is so insubstantial.
In his reply memo at page 7 Mr. Dash picks up a phrase
the Court used in its opinion when we were here before and says
that our conception of separation of powers mainly is one of a
watertight allocation of power. If we gave that Impression tp
964
59
the Court when we were here before It was certainly my undoing
and I did not Intend to do It.
It fa perfectly apparent that the system of checks and
balances set up by the founders does provide more than one branch
of government has a role with regard to many duties. Congress
makes laws that the President can veto; Congress can override
his veto, A president Is subject to Impeachment, tried by the
Senate, presided over by the Chief jJvistlce; treaties are made
by the President and consented to by the Senate. Sane examples
In which the Constitution very deliberately says we want the
combined action by more than one branch of the government.
But the rule of construction that I think has to
Chief
apply was what/Justice Taft announced in Marders case, 272 U.S,
52 at page 116, After discussing at very considerable length
the importance that the framers attach to the separation of
powers and their dedication to the views of minuscule on that,
the courtr through Chief Justice Taft said: "the reasonable
construction of the Constitution must be that the branches must
be kept separate in all cases in which they were not expressly
blended and the Constitution should be expounded to blend them
no more than it affirmatively requires."
That we think is the right approach, yet there is
some blending but you don't broaden the blending to the extent
the Constitution hasn't expressly blended, you leave them alone.
965
60
The main argtmenC on the merits of course Is from
historical practice, that this Is simply sanethlng that has
never been done before. At page 3 of our brief we have the quo.
tatlon from Professor Curland, a very distinguished scholar of
the Presidency and all of our history, so far as he is aware,
hundreds of times presidents have refused to rely on information
given to congressional ccnmlttees and no department head has
ever been held to respond to a svd>poena or held In conteapt for
failure to do so.
Now since history Is important In this case It Is
necessary that the Court have a very careful understanding what
history Is and -~
THE COURT: — I think I have read enough about history
to have that understanding.
MR, WRIGHT: Well, I want to caution Your Honor against
some historical argvBnents that Mr. Dash*s associates made In
his brief that seemed to me might be misleading.
Apparently the sole source of my friend's brief cm
historical Issues Is the lengthy article by Raul Bsrger which
Is cited fifteen times In their brief. They refer to It as a
careful an^ scholarly discussion; they refer again to the fact
that Professor Berger takes painstaking care.
Now Professor Berger is a scholar of repute; he has
written widely, provocatively and I read him with great Interest,
but I feel bound to say to the Court that Professor Burger is a
966
61
man who once he has adopted a point of view does his best to
fit the evidence to support his thesis and I do not regard a
made
statement of history/ on authority of Professor Berger as one
that can be accepted unless the underlying documentation supports
that.
Let me cite two Instances of that to the Court. One
Involves an Instance we discussed when Mr. Cox and I were here
before. That was the famous subpoena from Chief Justice Marshal
to Thomas Jefferson in the Burr case. And Mr, Cox In his argu-
ment said ultimately President Jefferson fully compiled. That
surprised me at the time. I was familiar with Professor Berger*8
article, I knew that he said Jefferson fully complied. My
general, understandlngr though is Jefferson had not fully complied,
so in my rebuttal I said Iregarded history as inconclusive.
In their historical appendix at page 5 my friend
asserts that President Jefferson fully canplied, and citing the
Berger article and the Berger article does ^ay he. President
Jefferson, fully complied.
Since we were here before I have had an opportunity
to examine all the original records and I am now in the position
to assert categorically to the Court that it is not true that
Thomas Jefferson fully complied. His great biographer, indeed
Idolater, Deveridge — not his, but Marshal's biographer-
would certainly love to record such a trlunph as Jefferson
967
62
yielding to Marshal in this dispute, but 1 £ you look at pages
518 to 522, Volume 33o£ Beverege's life with Marshal, Beverege
rather wistfully says that Jefferson never did comply and Marshal
let the matter drop.
What happened finally was this: the docixaentatlon can
be found in Voluae 9 of Ford's writings of Thanas Jefferson' at
pages 63 and 64.
Ultimately Jefferson took the letter in question, ha
cut out certain passages of it, he sent the edited version of
the letter to the Court with the certificate in which he said
the emitted portions were, and I quote: "Passages entirely
confidential given for my information in the discharge of my
executive functions and which my duties and public interest
forbid me to make public. I have therefore, given above a
correct copy of those parts which I ought to permit to be made
public."
That is certainly not full compliance. It seems
to me precisely what President Nixon is doing in this case and
this goes squarely against the waiver arguaent. Jefferson pro-
duced what he thought the public interest allowed to be produced.
He decided for himself what the public interest did not allow
to be produced and he exercised that.
One other historical instance at page 24, second
footnote of the original brief of the Senate Conmittee, again
citing Professor Berger* a, article:
<t68
63
"Prealdcat Jackson, for example, refused to pro-
duce documents relating to alleged wrong-doing by former
executive official but only oa the ground that the
Congressional Investigation vas being conduted la conera
thus depriving the Individual In question an opportunity
for public vindication."
I happen to have before ne the nessage cf President
Jackson, February 10, 1835, as appears in Richardson's Messages
and Papers «f Presldeots, Volune 31-32, Thtare Is a three-page
letter which appears In print. President Jackson first at some
length says this Is another demand for Information the Senate
la always making upon me that I think encroaches upon the
constitutional povjsrs of the Esccutlve, their continued repetition
encroaches upon me as representative and trustee of the ^lerlcan
people, the painful duty of resisting to theutmost any further
on the rights of t he Executive, and he said If you don't like
the fact I ffitt not giving you the papers vhat you ought to do Is
impeach me. Then after that lengthy discussion there are exactly
two sentences la which he makes references to the fact that
the p apers would be considered la executive session, but then
he returns to his other reason. Besides ccnpllance with the
present resolution In all probability would subject the conduct
and motives of the President In the case of Mr, Fltz to the
review of t he Senate not sitting aa judges oa Impeachacnt,
etc, etc.
9G9
64
So the statement that Jackson refused compliance
only on tHe ground the papers would be heard In camera Is simply
a very distorted reading of President Jackson's statement*
I think that the historical practice has beei as
Professor Corwln descrlbe<l it In the passage I already averted
to In page 3 of our brief. I think that the historical practice
has been as President Tmoan described It in his letter of
November 12 » 1^53 when he refused to respond to the subpoena
of the UnAoerican Activities Canmlttee. He said: In doing so
I am carrying out the provisions of the Constitution of the
United States and following allong line of precedents coomencing
with George Washington himself in 1796, Since his day Presidents
Jefferson, Monroe, Jackson, Tyler, Pope, Filmore, Buchanan,
Lincoln, Grant, Hays, Cleveland, Theodore Roosevelt, Coolidge,
Hoover, and Franklin D. Roosevelt have declined to respond to
subpoenas for deaaaia for infozmation of various kinds for the
Congress. He refers to the doctrine of separation of powers,
and he said: the doctrine would be shattered and the President,
contrary to our fundanental theory of constitutional government
would become a mere aim of the Legislative Branch of government
if he would feel during his term of office his every act aighe
be 'subject to official inquiry and possible distortion throiigh
political purposes.
That is the historical practice. The House of Repre-
sentatives acquiesced in that. President Trtman refused to do
970
65
as Congress has acquiesced over and over again when Presidents
have refused information, and ue have given a nunber of instances
of those in our brief. We cited even to Senator Ervin aadto
Senator McClellan acquiescing in Justice Fortas* vie\« in his
hearings that he cannot testify about conversations that he
held with the President.
There is a suggestion at page 20 of the reply memo
that t he instances in which this has happened have not been
instances in which possible criminal c<»iduct was involved and
this for some reason makes a difference. And I simply say this
is not true. Without going over every example of a long line
of examples we cite in the footnote at pages 52 to 54 of our
brief President Monroe in 1825 refused to give information relative
to charges of c rlminal conduct of a naval officer. President
Jackson in the letter' I just referred to involving Mr. Fltz in
1835 -»it was possible criminal charges. President Tyler in
1848. President Btichanan in I860, all Involving charges of
crime, charges which reached high in the Executive Department.
President Tronan himself in 1953 vhea he and Justice
Clark refused to appear before the House Dn-Anerican Activities
Committee were being asked to testify about a charge that t hey,
\^lle they were President and Attorney General, had knowingly
promoted a person they knew to be a Communist spy to a high and
critical position in government.
971
66
I am certain the conduct of that would violate a great
many statutes In the criralnal code. So the precedent that a
President can refuse to. produce material to Congiress even though
possible criminal conduct is 1 nvolved is, I think, perfectly
well established.
We have cited in our brief at pages 55 several of the
cases — MidWest Oil case; Inland Waterways case that indicate
on constitutional questions of this sort this historical practice
is itself something of great ixiportance and we didn*t cite in
our brief what the other side has cited for a different point
in their brief, the Pocket Vetoe case in 1929. It seemed to me
to have a particularly lucid statement of tlie conts ling principal
That is at 279 U.S. 655, quotation at 688 and 689. The Court
aaldt
"The views we have express^ as to construction and
effect of constitutional provision here in question
are confirmed by the practical construction given
to it by the President through a long course of
years in which Congress has acquiesced. Long settled
and established practice is a consideration of great
weight in a proper Interpretation of constitutional
provisions of this character."
Mr. Chief Judge, we respectfully submit that in this ^ -^
case the Cotirt ought honor the long established practice of
Presidents acquiesced in by Congress over and over again rather
972
67
than being caught up In the spirit of Watergate and setting
precedents that vould be very damaging to the Presidency.
THE COUELT: Thank you, Mr. Wright. Mr. Dash, do you
wish to reply?
MR. DASH: Briefly, Your Honor.
X caa*t resist the reference that apparently we had
cited Professor Berger but we have cited at least what he has
written in articles. My friend has cited Professor Black as he
has given statements to the New York Times and we hear now
that he has some hearsay Information that Professor Blckel may
have told Senator Ervin and me at a meeting and I suggested that
kind of newspaper statements or hearsay statements of a professor
that may have met with a Senator really is not precedent , and
there is so much of his references to Professor Black's New York
Times statements that I Just feel there really isn't controlling.
I should say in our reference to Professor Berger* s
statement around Jefferson, we do not say on page 5 of our
Motion for Stxomary Judgment appendix that Jefferson fully
complied. A proper and correct reading of what was said is that
it is clear that he attempted to fully comply and that he did
canply with the subpoena.
So there was no statement that he fully cczaplied.
It was an attempt.
Also, I think it is important to start right off
briefly in this reply that the historical background is a mixed
973
v^ 68
bag, and seme cases It Is true there may be sane criminality
of sane other people where they didn't comply. Other cases they
did. I think It is artalxed bag, I don't think ve can rely on
that.
We have a unique situation here. Your Honor. This is
the first time in all these cases where the President himself
may be involved. In fact we state and we don't have any denial
on the part of the President's counsel that a prima facie case
has in fact been made out of presideitial involvement. And in
that situation there is no special presidential right to protect.
Ve don't question the executive privilege powers of
■ ^ • I
the President. All these issues and all these statements that
Mr. Wright has talked about 1 n tetms of presidents not wanting
to give up their powers, I said we agree with all that, but
certainly this cannot exist, assertion of executive privilege
where the President personally is involved. In that particular
case he is using executive privilege as a shield for his self
protection rather than protection of the presidency or executive
privilege. * ■
Now reference has been made to Senator Gumey, and let
me say this was the unanimous vote of the entire Senate to bring
this suite for these tapes. Off-the-record statements to reporter
by Senators I think are completely irrelevant. Senator Gumey ^-
recelved this brief and approved it at executive ccDHnittee, he
and all the Senators unanimously approved my being here today to
974
69
argue these positions before Tour Honor, or I wouldn't be here.
They have the power to tell me not to come here and they could
withdraw their position. As recently as yesterday the Canmittee
met and reaffirmed its position before this Canmittee, and again
I suggest that references and off-the-cuff references by Senators
as to do we need these tapes, really are to again dispel the view
that without the tapes we Just fall apart. Frankly, we need the
tapes and let me really read the only statement that counts,
and that Is In the affidavit of Senator Ervln under oath, and
I read his paragraph 2 of his affidavit:
"Defendant Richard M. Nixon, President of the United
States has refused to honor two subpoena duces tecun
submitted to him by the Senate Select Coomittee
that calls for production of evidence vital to the
exercise of the Canmittee' s function." *
This is the Chalxman of the Canmittee and before
signing this he had the approval of the unanimous vote of the
Connlttee, so I don't think there is any question how the Senate
Canmittee members feel.
X suggest. Tour Honor, even though this may be 6cme>
vhat unusual, that it is a Congressional canmittee that is bringing
this action against the Executive it doesn't change the issue
on judiciability. Counsel for the President indicates that
usually the cases we have cited have been corporations or private
975
70
Individuals where these Issues have arisen. Frankly, It doesn't
matter vho brings the suite. I don*t see why a Committee of
the Congress cannot bring a suite to enforce Its subpoenas for
declaratory judgement If It Is a justiciable ^ssudiorAad the
question that Powell vs McCormack and David vs Soucle Is the
definition on a political question Is whether or not there Is
a ttextually demonstrable ccDraltment and here we say here there
Is none, executive privilege Is not a textiiaily-' demonstrable
conmltment to the President and since Tour Honor has ruled,
and I think other courts have ruled, that Is reviewed by the
courts, why can't a committee ccme Into court also as a jsorporatlo
president or anybody else.
Again, he Is confusing a political case perhaps with
a political question. We suggest that Is not so.
He makes a reference again to our use of the Independent
Brokers case as now being the rule In the Second Clrult with
regard to our use of the Administrative Procedxires Act jurlsdlctli
That In Itself provides Jurisdiction. And he Indicates that theri
was no reference to the earlier cases. That of course, the fact
that a later decision doesn't refer to earlier cases does not
mean that Its latest decision does not overrule those cases.
But also what they said In that particular case I read directly:
"We sustain the Jurisdiction in the District Court on the ground
this agency involvement constitutes agency action within the
meaning of the APA, and alternatively by reference to the Court's
97()
" 71
general equity jurisdiction." So there wer two basis for Jurls>
diction. Surely there was another base. But as an alternative
basis for jurisdiction they found that the AFA Is an Independent
basis for jurisdiction. Therefore, I subalt , Your Honor, that
it does.
Now, I had answered Your Honor's question as to whether
it was minority or majority view on 1331, whether it is a minorit;
view concerning the amount 1 n controvercy where you can't place
a dollar amount on it and what I was conceding. Your Honor,
was it Is from the minority view if you can*t place a dollar
amount then automatically the Court will treat in a con^tutional
rights case as meeting the amount in controversy. But it is
the majority view. Your Honor, we cite the Spock case and some
other cases which say that you can consider where constitutional
rights are Involved, you can consider then for the question of
the amount in controversy.
How just one or two other points that I think it
should be emphasized too that the question here of the exqeptlon
to the Executive Privilege ^ule where criminality is involved haj
been deeply conceded by the President's counsel and he doesn't
raise it. What he again argues and presses before this Court
he says it is the Watergate atmosphere.
I have to stress. Your Honor, that again, the unanlmou
vote of the Senate was to create a Senate Select Canmittee on
Presidential Campaign Activities and the President's counsel
977
72
treats lightly the responsibility.^ of the mandate. There Is no
espostire for exposure's sake. The President, even though ha
holds the highest executive position In the land, and deserves
the highest respect of all Anerlcans, still Is a citizen under
the law and In the area of presidential caapalgn activities where
he Is a candidate for the presidency, he comes within the legis-
lative Jurlsdlctlcn of the Congress and It Is In this particular
area that we are investigating* And as I have IxKllcated, where
a prima facie case has In fact been made out by a witness under
oath before a comnittee of :Crimlnallty of the President, then
It is the responslblll^ of our committee tDtake the facts
and findings for perhaps drastic legislation and I don't «ee
how the President's counsel can ignore that because the very
heart and future of our democratic electoral process d^ends
on whether or not there can be euch a corruption of a electoral
process as we have se&i in the past; and therefore, it may call
for the Ccmraittee to make such recooaendations and the CcoBitte«
can only make these recoometdations if it finds these facts and
it must pursue it as far as it can and it has the Jurisdiction
to do so.
I will not take the time of the Court to take on a
number of other Issues which were raised by Mr. Wright. Z think
all of these argunents have been fully presented to Tour Honor,
have been fully briefed, and I think the matter is ripe for
resolution. ^
34-966 O- 74 - pt. 1 - 63
978
V V' 73
W* do ask Your Honor to resolve these matters as
quickly as can b« even though we have filed an amicus in the
Court of Appeals, the Court of Appeals ca^nnot resolve our issues
of jurisdiction, and we d o present a different case because
whereas the Special Prosecutor was not relying primarily as we
do and directly on the involvement of the President himself
because he has a particular problem In texms of how far he can
go in teiTos of prosecution. The legislative process can look
into that matter for determining what legislation it should draft
even though it cannot obviously prosecute the President, and
therefore we need the resolution of this case as early as possible
even if the Court of Appeals has not yet resolved it,
THK COORT: The Court desires to consider this matter
further before rendering a decision, and will therefore take
the matter under advisesent for the time being.
Both counsel ought to be congratulated on the excellent
presentations made this momiixg and in the -vrlttao briefs.
The Court deeply appreciates the assistance of counsel
on both sides. , ^
If there la nothing further the Court will now adjouxn.
♦ * * (12:25 p.m.)
cektificatk
It is certified t he foregoing is the official
transcript of proceedings Indicated. / / /j
NIC
LCHOLAS SOKAL
Official Reporter
979
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMmTTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
nane and in the name of the United States,
and
SAM J. ERVIN, JR.; HOWARD H. BAKER, JR.;
HERMAN E. TALMADGE; DANIEL K. INOUYE;
JOSEPH M. MONTOYA; EDWARD J. GURNEY;
and WUELL P. WEICKER, JR., as United
States Senators who are members of
Che Senate Select Committee on
Presidential Campaign Activities,
Plaintiffs,
RICHARD M. NIXON, individually and as
President of the United States,
Defendant ,
Civil Action No. 1593-73
ORDER
This matter having come before the Court on plaintiffs'
Motion for Summary Judgment, and the Court having considered the
nenoranda and arguments of counsel, and the Court having concluded
for the reasons stated in the attached opinion that it lacks
jurisdiction over this matter, it is by the Cotirt this
day of October, 1973,
lacks
11^
ORDERED that this action be, and the sane hereby Is,
dismissed with prejudice.
Chlefi Judge
980
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing In its own
name and In the name of the United States,
and
SAM J. ERVIN, JR.; HOWARD H. BAKER, JR.;
HERMAN E. TALMADGE; DANIEL K. INOUYE;
JOSEPH M. MONTOYA; EDWARD J. GURNET; and
LOWELL P. WEICKER, JR., as United States
Senators who are members of the Senate
Select Committee on Presidential Campaign
Activities,
Plaintiffs,
RICHARD M. NIXON, Individually and as
President of the United States,
Defendant .
Clerk
civil Action No. 1593-73
OPINION
The Court presently has before it a motion for summary
judgment filed by plaintiffs. Plaintiffs are the Senate Select
Committee on Presidential Campaign Activities, established by
Senate Resolution 60, 93rd Congress, 1st Session (1973), and the
seven United States Senators who compose the Select Committee.
Richard M. Nixon, President of the United States, is defendant.
The action is styled "Complaint for declaratory Judgment, mandatory
injunction and mandamus."
Facts concerning the origin of this action are not con-
troverted. The Senate Select Committee on Presidential Campaign
r
Activities (Select Committee) became a duly authorized and con-
stituted committee of the United States Senate on February 7,
1973, "empowered to investigate and study 'illegal. Improper or
unethical activities' In connection with the Presidential campaign
and election of 1972 and to determine the necessity of new
981
legislation 'to safeguard the electoral process by which the
_1/
President of the United States Is chosen.'" In the course
of Its Investigatory procedures, the Select Committee heard one
Alexander P. Butterfleld, formerly a Deputy Assistant to the
defendant. Mr. Butterfleld testified that the President had
electronically recorded conversations occurring in various of
his offices during a period of time that Included the campaign
and election of 1972. This testimony was later confirmed by
Presidential counsel, J. Fred Buzhardt.
Upon learning that among these recorded conferences
were a series which they regarded as highly relevant to their
investigation, plaintiffs commenced informal efforts to secure
the pertinent tape recordings as well as various written doctments.
Plaintiffs were and remain convinced that the recorded account
of these presidential conversations, together with written White
House documents alluded to by witnesses at their hearings, would
undoubtedly contain information having an important bearing on
their investigation and would probably resolve critical conflicts
in the testimony of several key witnesses.
When informal attempts proved unsuccessful, the Select
ComMttee directed two subpoenas duces tecum to the defendant
President. Both were served on July 23, 1973, and together with
proof of service, are attached as exhibits to the compl{d.nt herein.
1/ ^"Statement of Material Facts as to which there
is no Genuine Issue" filed by plaintiffs on August 29, 1973, at
1. Counsel for the defendant President acknowledged in Court on
October 4, 1973, that defendant takes no issue with plaintiffs'
statement.
2/ Id. at 2.
2 -
982
The first required production of the tape recordings of five
meetings which were in each instance attended by the defendant
President and then White House counsel, John W. Dean, III.
Other persons had also been present during some of these con-
ferences. As noted in the subpoena, the meetings occurred on
September 15, 1972, February 28, 1973, March 13, 1973, and
March 21, 1973, with two meetings on the last mentioned date.
The second subpoena sought documents and other materials "relating
directly or indirectly to [an] attached list of [25] individuals
and to their activities, participation, responsibilities or
involvement in any alleged criminal acts related to the Presi-
dential election of 1972." Defendant filed no objection to
either subpoena or to service thereof, although in a subsequent
filing counsel have characterized the second subpoena as
oppressive. Defendant's sole riespiotBe consisted of a letter
to Select Committee Chairman Senator Sam J. Ervin, Jr., ex-
pressing the President's intention not to comply with the subpoenas
and the reasons for his decision. The President's letter is
also appended to the complaint herein as an exhibit. It Is under-'
stood that although the subpoenaed tape recordings had previously
been in the custody of others, at the time the subpoenas were
issued, and at present, they are within the sole possession,
custody and control of the defendant President.
Plaintiffs next proceeded to file with the Court the
present civil action. They deliberately chose not to attempt
an adjudication of the matter by resort to a contempt proceeding
under Title 2, U.S.C. § 192, or via Congressional common-law
powers which permit the Sergeant at Arms to forcibly secure
attendance of the offending party. Either method, plaintiffs
3? Id. at 3.
3 -
983
state, would here be inappropriate and unseemly. On the day
defendant filed his answer to the complaint, plaintiffs sub-
mitted a motion for summary Judgment. A response to the motion
and other memoranda were subsequently filed, and the matter came
on for oral argument on October 4, 1973. In their subsequent
pleadings and at oral argument, plaintiffs have emphasized that
portion of the complaint which seeks a declaratory Judgment.
It is argued that such Judgment include the following statements:
(1) That the two subpoenas were law-
fully issued and served by plaintiffs and must
be complied with by defendant President;
(2) That defendant President may not refuse
compliance on the basis of separation of powers,
executive privilege, Presidential prerogative
or otherwise;
(3) That defendant President by his action
to date has breached the confidentiality of the
materials subpoenaed and waived any privilege
that might have applied to them.
The prayer for a mandatory injvmction and/or relief by
way of mandamus has been referred to the Court's discretion and
otherwise ignored by plaintiffs.
The case presenta a battery of issues including Juris-
diction, Justiciability, invocation of the declaratory Judgment
statute, executive privilege, waiver of privilege, validity of
the Select Committee's investigation, and authority of the Select
Committee to subpoena and bring suit against the President.
Because of its ruling, the Court has found it necessary to con-
sider only one question, that being whether the Court has Juris-
diction to decide the case. The Court has concluded, for the
- 4
984
reasons outlined below, that it lacks such jurisdiction, and the
action is therefore dismissed with prejudice.
I.
The Court has recently decided another case involving
some of the same tape recordings that are here at issue. As
its caption indicates, that matter concerned a subpoena duces tecum
issued to the President by a grand jury. It was there ruled that
compliance with the subpoena could be judicially required as to
unprivileged matter and that the Court was empowered to determine
the applicability of any privilege. The case is presently the
subject of appellate review.
This present case, by contrast, is a civil complaint,
and In such actions particularly, jurisdiction is a threshold
issue. Some elementary principles perhaps need restating here.
For the federal courts, jurisdiction is not automatic and cannot
be presumed. Thus, the presumption in each instance is that a
federal court lacks jurisdiction until it can be shown that a
specific grant of jurisdiction applies. Federal courts may
exercise only that judicial power provided by the Constitution
in Article III and conferred by Congress. All other judicial
power or jurisdiction is reserved to the states. And although
plaintiffs may urge otherwise, it seems settled that federal
courts may assume only that portion of the Article III judicial
power which Congress, by statute, entrusts to them. Simply
A/ In Re Grand Jury Subpoena Duces Tecum Issued to
Richard M. Nixon, etc., 360 F. Supp. 1 (D.D.C. 1973).
5/ The Supreme Court and the Court of Appeals for
this Circuit have affirmed that jurisdiction fails "if the cause
is not one described by any jurisdictional statute." Powell v.
McCormack, 395 U.S. 486, 512-513 (1969) citing Baker v. Carr,
369 U.S. 186, 198-199 (1962). See also, Cary v. Curtis, 3 How.
(continued to next page)
- -5
985
stated. Congress oay Impart as much or as little of the judicial
power as It deems appropriate and the Judiciary may not thereafter
on its own motion recur to the Article III storehouse for addi-
tional jurisdiction. When it comes to jurisdiction of the federal
courts, truly, to paraphrase the scripture, the Congress giveth,
and the Congress taketh away. Finally, the principle is firmly
established that jurisdictional requirements cannot be waived.
II.
Plaintiffs have cited four statutory bases any and
all of which, according to their submission, grant Jurisdiction
here. Before proceeding to analyze these provisions, however,
It should be noted that the Declaratory Judgment Act, 28 U.S.C.
§S 2201 and 2202, and Rule 57 of the Federal Rules of Civil Pro-
cedure do not themselves confer jurisdiction. These statutes,
as defendant points out, are procedural only and do not constitute
the jurisdictional statute necessary to consideration of a specific
declaratory judgment action.
_5/ (continued) (44 U.S.) 236, 245 (1845) and United States
Servicemen's Fund v. Eastland, F.2d (No. 24,279 August
30, 1973) (D.C. Cir. 1973). Reference to Article III, § 2 alone
is insufficient.
For the contrary proposition plaintiffs cite six
decisions: New York Times Co. v. U.S., 403 U.S. 713 (1971);
Sanitary District of Chicago v. U.S., 266 U.S. 405 (1925); In
Re Debs, 158 U.S. 564 (1895); U.S. v. Arlington County, 326
F.2d 929 (4th Cir. 1964); U.S. v. Brand Jewelers, Inc., 318
F. Supp. 1293 (S.D.N.Y. 1970); and U.S. v. Brittaln, 319 F.
Supp. 1058 (N.D. Ala. 1970). None of these cases, however,
holds .that the government or anyone else may Invoke jurisdiction
of the federal courts without utilizing a specific jurisdictional
statute. Each were initially brought by the United States and
jurisdiction apparently invoked under 28 U.S.C. § 1345, or its
predecessor, an Independent statutory base applicable to the
government.
_6/ Job 1:21 (The Holy Bible)
7/ See, Skelly Oil Co. v. Phillips Petroleum Co.,
339 U.S. 667, 671 (1950) and Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 249 (1937).
986
One of the four statutory bases of Jurisdiction cited
by plaintiffs is 28 U.S.C. § 1345 which reads:
S 1345. United States as plaintiff
Except as otherwise provided by Act of Congress,
the district courts shall have original juris-
diction of all civil actions, suits or proceed-
ings commenced by the United States, or by any
agency or officer thereof expressly authorized
to sue by Act of Congress .
Plaintiffs have disclaimed any attempt to classify themselves
as an "agency or officer" within the meaning of this section.
Rather they purport to bring suit In the name of the United
States. Reference, however, to common practice and related
statutory provisions belles the soundness of such a claim.
Title 28 U.S.C. § 516, in language similar to that of S 1345,
reserves to the Attorney General and Department of Justice
authority to litigate as United States.
§ 516. Conduct of Litigation reserved
to Department of Justice
Except as otherwise authorized by law, the
conduct of litigation in which the United
States, an agency, or officer thereof is
a party, or is interested, and securing
evidence therefor, is reserved to officers
of the Department of Justice, under the
direction of the Attorney General.
While this section does not require a congressional litigant
to be represented by the Justice Department, it does deny such
a litigant the right to sue as the United States when jurisdiction
derives from § 1345. The practice has never been otherwise
~Tj Cf. , Confiscation Cases, 7 Wall (74 U.S.) 454,
457 (1868). It may be argued that Senate Resolution 262, 70th
Congress, 1st Session (1928) permits the Select Committee to
sue in the name of the United States here despite the provisions
of S 516. Resolution 262 states in pertinent part:
[A]ny committee of the Senate is hereby
authorized to bring suit on behalf of and
(continued to next page)
- 7 -
987
and the two cases cited by plaintiffs do not so hold. Section
1345 Is simply inapplicable here.
8/ (continued)
in the name of the United States in any
court of competent Jurisdiction if the
committee is of the opinion that the suit
la necessary to the adequate performance of
the powers invested In it or the duties
Imposed upon it. . . .
It occurs to the Court that there are at least three responses
which answer this claim. First, Insofar as the Senate Resolution
Is Inconsistent with the provisions of § 516, it would appear
that the statute, enacted by both Houses of Congress, should
control over the Resolution of one House, Second, any exception
to S 516 must be one "authorized by law." Although the question
has never been specifically litigated, it seems apparent that
"law" in S 516 would not include a legislative action of the
sort represented by S. Res. 262. The term "law" does not normally
encompass within its definition "resolution," and all recognized
exceptions to S 516, such as 10 U.S.C. § 1037, are statute laws
enacted by both Houses. In addition, the Supreme Court has hinted
that authorization of legislative committees to sue as the United
States under § 1345 may require a specific statutory enactment.
The Court in Reed v. County Commissioners, 277 U.S. 376 (1928),
did not reach the question of whether a Senate committee could
act as the United States under 28 U.S.C. S 41 (predecessor to
28 U.S.C. § 1345), because "even if It be assumed that the
Senate alone may give that authority," it had not even attempted
to do 80. 277 U.S. at 388 (emphasis added).
Third, and most importantly, the language and historical
setting of S. Res. 262 exact the conclusion that it was intended,
not to confer jurisdiction, but to ensure standing in lawsuits.
Both parties agree that the Senate adopted S. Res. 262 in response
to the Supreme Court decision in Reed. As Just noted, the Reed
Court did not reach the issue of statutory jurisdiction because
it found that the Senate Special Committee lacked standing. 277
U.S. at 388. S. Res. 262 was intended to correct that defect,
and thus it authorized committees to sue "in any court of com-
petent Jurisdiction." This language traditionally means courts
that already have jurisdiction, that are presently competent to
consider the case, pursuant to some independent statutory pro-
vision. It does not Itself serve to bestow Jurisdiction.
9/ Plaintiffs cited In Re Hearings by the Committee
on Baiiklng and Currency, 245 F.2d 667 (7th Clr. 1957) and In Re
Hearings by the Committee on Banking and Currency, 19 F.R.D. 410
(N.D. 111. 1956).
988
B
A second statute called to the Court's attention la
28 U.S.C. S 1361. That statute provides:
§ 1361. Action to compel an officer of the
United States to perform his duty.
The district courts shall have original juris-
diction of any action in the nature of a
mandamus to compel an officer or employee
of the United States or any agency thereof
to perform a duty owed to the plaintiff.
In attempting to meet the terms of § 1361, plaintiffs
impute to the defendant President a "legal duty to respond to
and to comply with . . . [Select Committee] subpoenas." As
defendant indicates, however, the traditional criteria for man-
10/
damus proceedings apply here and only a "ministerial, plainly
defined and peremptory" duty may properly be the subject of such
proceedings .
Before such a writ may issue, it must
appear that the claim is clear and certain
and the duty of the officer involved must
be ministerial, plainly defined, and
peremptory . Huddleston v. Dwyer, 10
Cir. 145 F.2d 311. The duty sought to
be exercised must be a positive command
and so plainly prescribed as to be free
from doubt. Wilbur v. United States ex
rel. Kadrie, 281 U.S. 206, 50 S.Ct. 320,
74 L.Ed. 809. W
These criteria have not been satisfied.
After reading cases that have considered applications
for mandamus, the Court cannot in good conscience hold that any
duty defendant may have as President is "plainly defined and
loT ^See, Senate Report No. 1992, B7th Cong., 2nd
Sess. pp. 2-4 (1962). 28 U.S.C. § 1361 did not creatE a new or
distinct cause of action.
11/ Prairie Band of Potawatomle Tribe of Indians v.
Udall, 355T.2d 364, 367 (10th Cir.) cert, denied 385 U.S. 831
(1966).
- 9 -
989
12/
peremptory" as that phrase has been Interpreted. Mandamtis
properly Issues to enforce such duties as that of a governfflent
officer to issue a driver's or marriage license when all licens-
ing requirements are met or that of a military official to con-
fer an honorable discharge where the law so provides. In every
case, official duties are involved. No analogous obligation
appears here. Regardless of whatever duty the President may
owe the Select Committee as a citizen with evidence in his
possession, it is not "free from doubt" that his official
responsibilities require compliance. There is nothing in the
Constitution, for example, that madces it an official duty of
13/
Presidents to comply with Congressional subpoenas.
A fair reading of § 1361 cannot sustain jurisdiction
here.
12/ See e.g. , Harmon v. Brucker, 355 U.S. 579 (1958);
McGaw V. Farrow, 472 F.2d 952 {4th Cir. 1973); Spock v. David,
467 F.2d 1047 (3rd Cir. 1972); United States v. Walker, 409 F.2d
477 (9th Cir. 1969); Greffanti v. Hershey, 296 F. Supp. 553 (S.D.
N.Y. 1969); Switzerland Co. v. Udall, 225 F. Supp. 812 (W.D.N.C.
1964) aff 'd. 337 F.2d 56 (4th Cir. 1964) cert, denied 380 U.S.
914 (1965).
13/ Plaintiffs misread the prior opinion of this Court
when they think they find a declaration therein that Presidents
have a duty, ministerial in nature, to comply with subpoenas.
The Court rather stated that defendant's obligation to produce
unprivileged evidence was "more akin to a ministerial duty" than
to a discretionary one, "if Indeed it concerns official duties
at all. " In Re Grand Jury Subpoena Duces Tecum Issued to Richard
M. Nixon, etc., 360 F. Supp. 1, 8 n.21 (D.D.C. 1973). (emphasis
added). In sustaining the Court's position in that case, the
Court of Appeals for this Circuit characterized the responsibility
of the President to produce evidence as one of the "routine legal
obligations that confine all citizens." Nixon v. Sirica,
F.2d (No. 73-1962 October 12, 1973) (D.C. Cir. 1973), at
page 18 slip opinion.
10 -
990
As a third statutory basis of jurisdiction, plaintiffs
cite the Administrative Procedure Act, 5 U.S.C. §§ 701-706.
There is some question whether the President is an "agency" for
lA/ 15/
purposes of the Act, whether "agency action" is involved here.
14/ Plaintiffs cite Amalgamated Meat Cutters & Butcher
Workmen v. Connally, 337 F. Supp. 737 (D.D.C. 1971), the decision
of a three judge court written by Circuit Judge Leventhal, as
definitively establishing that the President is an "agency" for
purposes of the statute. As the Court reads that decision, how-
ever, and as defendant suggests, that issue was specifically left
open. The opinion does include the following statement cited by
plaintiffs:
The leading students of the APA, whose
analyses are often cited by the Supreme Court,
and who on some matters are in conflict with
each other, seem to be in agreement that
the term "agency" in the APA Includes the
President — a conclusion fortified by the
care taken to make express exclusion of
"Congress" and "the Courts." 337 F. Supp.
at 761 (footnote omitted).
Nevertheless, in the next sentence the court writes:
But we need not consider whether an action
for judicial review can be brought against
the President eo_ nomine. 337 F. Supp. at
761.
The Court of Appeals in this Circuit has also left open this
question. See, Soucie v. David, 448 F.2d 1967, 1073 n.l7 (D.C.
Cir. 1971). Defendant further notes, "it is hard to imagine that
a statute that excludes from its operations even the governments
of the territories and the Mayor of the District of Columbia
should be held to have included, in its bland and neutral language,
the President of the United States." Brief in Opposition at 33
n.7.
15/ "Agency action" is defined by the statute as "the
whole or a part of any agency rule, order, license, sanction,
relief or the equivalent or denial thereof, or the failure to
act." 5 U.S.C. § 551 (13). Plaintiffs cite this language as
aptly describing "the President's failure to turn over the evidence
which the Committee has demanded. J^/ " " ^/ In fact, the
term 'adjudication' as defined by the APA, could well apply to
the President's action. See 5 U.S.C. § 551 (6 and 7)." Reply
Memorandum at 18. Defendant interprets the same definition as
applicable only to the "rule-making" and "formulation of orders"
functions of agencies, categories into which his actions do not
fall. Brief in Opposition at 33, 34.
11
991
and whether plaintiffs have suffered a "legal wrong" within the
16/
meaning of these provisions. A final resolution of these pro-
blems, however. Is unnecessary here since the rule In this Cir-
cuit precludes use of this Act altogether as an Independent basis
17/
of jurisdiction. The Administrative Procedure Act does not
confer Jurisdiction where an action is not otherwise cognizable
by the federal courts. Plaintiffs have urged that although this
was once the rule in the District of Columbia, the Independent •
Broker-Dealers' Trade Association v. SEC case at 4A2 F.2d 132
(D.C. Cir. 1971), cert, denied A04 U.S. 828 (1972) has effectively
overruled the earlier position. The Court does not so read
16/ 5 U.S. C. § 702 provides:
A person suffering legal wrong because
of agency action or adversely affected or
aggrieved by agency action within the mean-
ing of a relevant statute, is entitled to
judicial review thereof.
The plaintiffs claim a legal right of the Committee to have its
lawful subpoenas obeyed by the President and cite principally
Watkins v. U.S., 354 U.S. 178 (1957) and McGrain v. Daugherty,
273 U.S. 135 (1927). Supplemental Memorandum at 27; Reply Memo-
randum at 18, 19. Defendant maintains that although plaintiffs
may have cited an adverse effect, they have not pointed to an
illegal effect recognized by law. He cites Senate Report No.
752, 79th Congress, 1st Session (1945) at 26, and Kansas City
Power & Light Co. v. McKay, 225 F.2d 924 (D.C. Cir.) cert, denied
350 U.S. 884 (1955). Brief in Opposition at 34.
17/ See Pan American World Airways, Inc. v. CAB, 392
F.2d 483, 494 (D.C. Cir. 1968); Kansas City Power & Light Co. v.
McKay, 225 F.2d 924, 932-933 (D.C. Cir.) cert, denied 350 U.S.
884 (1955); Almour v. Pace, 193 F.2d 699, 701 n. 5 (D.C. Cir. 1951),
Such is the rule in other circuits as- well. See, e.g. , Arizona
State Dept. of Public Welfare v. Dept. of Health, Education and
Welfare, 449 F.2d 456, 464 (9th Cir. 1971), cert, denied 405 U.S.
919 (1972); Zimmerman v. United States Government, 422 F.2d 326,
330-331 (3rd Cir.), cert, denied 399 U.S. 911 <1970) ; Twin Cities
Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529,
532 (8th Cir. 1967); Choumos ^. United States, 335 F.2d 918, 919
(10th Cir. 1964); Local 542, International Union of Operating
Engineers v. NLRB, 328 F.2d 850, 854 (3rd Cir.), cert, denied
379 U.S. 826 (1964); Ove Gustavsson Contracting Co. v. Floete,
278 F.2d 912, 914 (2d Cir.), cert, denied 364 U.S. 894 (1960).
12
992
Independent Broker-Dealere. Plaintiffs there enjoyed an inde-
pendent basis for jurisdiction in 28 U.S.C. § 1331, and the
ruling concerned not whether the APA itself affords jurisdiction
but whether the SEC's informal act was reviewable and whether
any such review might be had in the District Court. The Court
held that an SEC letter to the New York Stock Exchange request-
ing that the Exchange prohibit "customer-directed give-ups"
constituted judicially reviewable "agency action." The Court
agrees with defendant's counsel that it is hardly probable the
Court of Appeals would overrule its prior decisions without any
reference to them.
The Court concludes that the Administrative Procedure
Act cannot serve to grant jurisdiction here.
Plaintiffs have placed principal reliance for purposes
of jurisdiction on 28 U.S.C. § 1331. That statute, often termed
the "federal question" jurisdiction statute, provides in pertinent
part as follows:
§ 1331. Federal question; amount in
controversy; costs
(a) The district courts shall have original
jurisdiction of all civil actions wherein
the matter in controversy exceeds the sum
or value of $10,000 exclusive of interest
and costs, and arises under the Constitution,
laws or treaties of the United States.
Unlike the statutes heretofore discussed, this provision includes
a monetary sum or value as an incident of jurisdiction, the
$10,000 Jurisdictional amount. Although the amount has varied
over the years, defendant is correct in his assertion that whatever
- 13 -
993
18/
the sum, it ia a jurisdictional prerequisite. The satisfaction
of a miaimum amount-in-controversy is not a technicality; it is
a requirement imposed by Congress which the courts may not dispense
with at their pleasure.
While some decisions have held to the contrary, most
notably Spock v. David, 469 F.2d 1047 (3rd Cir. 1972), it is the
near-universal view that a right or matter in controversy must be
capable of valuation in dollars and cents to sustain jurisdiction
19/
under § 1331. To the Court, this constitutes not only the
majority but the more realistic analysis of the amount-in-controversy
requirement. Where it desires to award jurisdiction over cases
involving Important rights without regard to a monetary valuation,
the Congress is capable of excluding such restrictions; witness,
for example, the civil rights and elective franchise statute at
28 U.S.C. § 1343. Thus, where Congress has required a jurisdictional
sum, it would seem unwarranted for a court to presume that the
20/
limitation was unintentional.
The question therefore become whether a quantifiable
amount-in-controversy, of sufficient value to satisfy the statutory
18/ See, e.g.. Holt v. Indiana Mfg. Co., 176 U.S. 68
(1900) and U.S. v. Sayward, 160 U.S. 493 (1895).
1£/ See, e.g., Barry v. Mercein, 5 How. (46 U.S.) 103
(1847); McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973); Kheel v.
Port of New York Authority, 457 F.2d 46 (2nd Cir. 1972); Goldsmith
V. Sutherland, 426 F.2d 1395 (6th Cir.) cert, denied 400 U.S. 960
(1970); Rosado v. Wyman, 414 F.2d 170 (2nd Cir. 1969), reversed on
other grounds 397 U.S. 397 (1970); Rapoport v. Rapoport, 416 F.2d
41 (9th Cir. 1969) cert, denied 397 U.S. 915 (1970); Giancana v.
Johnson, 335 F.2d 366 (7th Cir. 1964) cert, denied 379 U.S. 1001
(1965).
20/ Defendeint states that Congress has had before it
several times legislation "rewriting the statute to remove the
amount in controversy requirement in cases in which constitutional
rights are asserted against federal officers," but has each time
failed to enact it. Brief in Opposition at 25.
14
34-966 O - 74 - pt. 1 - 64
994
minimum, exists here. The parties agree, and it is well settled
that in determining the amount-ln-controversy, reference to either
party's situation is appropriate. Where the case is worth at
least $10,000 to the defendant, the requirement Is satisfied
Just as fully as where a plaintiff can demonstrate the $10,000
value or sum.
Computations measure the "value of the object" of the '
suit, Mississippi & Missouri R.R. Co. v. Ward, 2 Black (67 U.S.)
485 (1862), that is the monetary value of objects at issue or
direct monetary impact of an adjudication. The object here could
be described as either the tapes and documents themselves or as
access to the Information contained therein. Since intrinsically,
the tape recordings and documents do not approach a $10,000 value,
we look instead to the value of a disposition either granting or
denying the declaratory judgment and other relief sought.
Plaintiffs suggest several possible analyses by which
existence of the required minimum value may be established. It
appears to the Court, however, that none of these proposals suffice.
First, in an affidavit of the Select Coimaittee Chairman appended
to their Supplemental Memorandum, plaintiffs calculate the expenses
they will incur if compelled to secure from other sources the infor-
mation contained In the subpoenaed materials. Though the Court does
not dispute this assessment, it nevertheless cannot accept such
indirect costs as the amount-ln-controversy. Alternative means of
achieving the object of a suit or collateral results of a judgment
are not properly considered in computing the jurisdictional minimum
21/
under § 1331. The cost of added Committee work to ferret out
21/ See, e.g.. Healy v. Ratta, 292 U.S. 263 (193A);
Lion Bonding 6. Surety Co. v. Karatz, 262 U.S. 77 (1923); Town of
Elgin V. Marshall, 106 U.S. 578 (1882); Quinalt Tribe of Indians v.
Gallagher, 368 F.2d 648 (9th Clr. 1966) cert, denied 387 U.S. 907
(1967) . (footnote continued to next page)
I
- 15 -
995
the desired Information Is quite clearly the cost of an alterna-
tive procedure. Nor Is the Select Committee's appropriation of
a valid nieasure. The decision in Williams v. Phillips, F.
Supp. (D.D.C. 1973, C.A. No. 490-73), the only authority
cited for this proposition, contains no such holding. Plaintiffs
have not attempted to quantify the direct impace of a judicial
decision, and Indeed, it appears to the Court that such an
appraisal is impossible from either party's viewpoint.
Second is a suggestion that the rights and responsibilities
of legislators exceed the $10,000 minimum. The restriction to a
dollars and cents evaluation of the matter in controversy, however,
logically precludes an assumption that the value of such a right
can satisfy § 1331. The value of the right or duty must be
22/
quantifiable. There must be some financial gain or loss
21/ (continued)
For the contrary proposition plaintiffs cite Petroleum
Exploration Co. v. Public Service Commission, 304 U.S. 209 (1938);
Bitterman v. Louisville & Nashville R.R., 207 U.S. 205, 224-25
(1907); and Federated Mutual Implement & Hardware Ins. Co. v.
Steinherder, 268 F.2d 734 (8th Cir. 1959). In each of these in-
stances, however, parties stood to suffer monetary losses in ex-
cess of the jurisdictional amount as the direct result of a judgment.
In Petroleum Exploration it was the expense a Maine corporation
would incur if forced to appear and give information pursuant to
an order of the Kentucky Public Service Conmlsslon. In Bitterman,
it was a railroad's financial loss if ticket sales by brokers were
not enjoined. The Federated Mutusl case concerned losses that would
befall an insurance company if a former sales agent were not re-
strained from competing in the insurance business for two years.
22/ Plaintiffs urge that Kennedy v. Sampson, (D.D.C,
C.A. 1583-72, August 16, 1973) and Holtzman v. Richardson (E.D.N.Y.,
73-C-537, July 25, 1973) reversed ^F.2d (2nd Cir. 1973)
found that the constitutional rights and duties of legislators
met the monetary requirement of § 1331. This conclusion, however,
seems inaccurate. Kennedy did not discuss jurisdiction but was
apparently a § 1361 case (performance of a ministerial duty) .
In Holtzman, the object of the controversy from defendants' view-
point (bombing in Cambodia) far exceeded the $10,000 jurisdictional
sxim. As plaintiffs note, a court in this district has apparently
ruled that the inherent value of a constitutional right to vote
"must be equal to any amount set for jurisdictional purposes."
(continued to next page)
- 16 -
996
associated directly with sustaining, rejecting or declaring the
right. The Supreme Court has only recently reminded us that in
suits against federal officials under S 1331, "it is necessary to
satisfy the amount-in-controversy requirement for federal juris-
diction." Lynch v. Houaehold Finance Corp., 405 U.S. 538, 5A7
(1972) . Any direct financial consequence to rights or duties is
not apparent in this case.
Finally, regarding value from defendant's viewpoint,
the Court cannot find any basis on which to assign a dollar value
to the matter in controversy. Just as the constitutional obliga-
tions of legislators, defendant's interest, whatever it may be
termed, is incapable of such an appraisal. Each of plaintiff's
assertions, then, regarding the amount-in-controversy are legally
inadequate, and finding no possible valuation of the matter which
satisfies the $10,000 minimum, the Court cannot assert jurisdic-
tion by virtue of § 1331.
No jurisdictional statute known to the Court, including
the four which plaintiffs name, warrants an assumption of juris-
diction, and the Court is therefore left with no alternative
here but to dismiss the action.
22/ (continued) West End Neighborhood Corporation v.
Stans, 312 F. Supp. 1066, 1068 (D.D.C. 1970). This Court, however,
cannot justify a conclusion that the Stans decision represents the
law in this or any Circuit with the possible exception of the Third,
and accordingly, with due respect, cannot regard that precedent.
To say that constitutional rights are Incapable of a
monetary assessment is not to say that they are petty or worthless.
All persons realize, or should realize, that their value is unsur-
passed. Such value, however, is simply not the type intended to
satisfy the monetary restrictions of S 1331. Other statutes may
grant jurisdiction in some of these cases, but § 1331 does not.
- 17 -
997
III.
Because o£ its conclusion and disposition, the Court
does not reach the problem of justiciability or the merits of
the case. Any comment on these matters therefore is inappropriate,
and the Court does not proffer its views.
The Court has here been requested to Invoke a jurisdic-
tion which only Congress can grant but which Congress has heretofore
withheld. Whether such Jurisdiction ought to be conferred is the
prerogative of the Congress. Plaintiffs, of course, are free to
pursue whatever remedy they now deem appropriate, but the Court
cannot, consistent with law and the constitutional principles that
reserve to Congress the conferral of jurisdiction, validate the
present course.
Chd/f Judge
October 17, 1973
998
IN THE UNITS) STATES Dx^TRICT 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
Defendant
FILED
OCT 1 9 1973
JAMES F. DATTW
CLERK
Civil Action
No. 1593-73
NOTICE OF APPEAL
Notice is hereby given that the above named plaintiffs
hereby appeal to the United States Court of Appeals for the
District of Columbia from this Court's Order of October 17,
1973, that denied plaintiffs' Motion for Summary Judgment
and dismissed this action v/ith prejudj
October 19. 1973
»amuel Dash
Chief Counsel
Senate Select Committee on
Presidential Campaign Activities
United States Senate
Washington, D.C. 20510
(202) 225-0531
999
e ^ RECEIVED
OCT 2 3 1973
PI FRK OF THE UNITED
THE UNITED STATES COURT OF APPEALS FOFl cjatF*; mill?r OF flPPFAl «!
THE DISTRICT OF COLUMBIA CIRCUIT ^ STATESCOyRT OF APPEALS.
SENATE SELECT COMICETTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
name and in the name of the UNITED
STATES,
and
SAM J. ERVTN, JR., HOWARD H. BAKER, JR.,
HERI-IAN E. TALMADGE, DA1«EL K. INOUYE,
JOSEPH M. MONTOYA, EDWARD J. GURNEY,
and LOWELL P. WEICKER, JR., as United
States Senators who are members of
the Senate Select Committee on ) No. 1003'7'5
Presidential Campaign Activities
^2-XoP6
Appellants
V.
RICHARD M. NIXON, individually and as
President of the United States
Appellee
MOTION FOR EXPEDITED BRIEFING AND ARGUlffiNT SCHEDULE AND
SUGGESTION FOR HEARING EN BANC
Appellants hereby move this Court to set an expedited
briefing and argument schedule as follows:
(1) The parties, on Monday, October 29, 1973, shall
file in this Court the briefs filed in this case in the
District Court plus any supplemental briefs they desire
1000
-2-
that take into account the ruling of the District Court
In this cause and this Court's opinion of October 12,
1973, in Nos. 73-1962, 73-1967. and 73-1989 (the Special.
Prosecutor cases).
(2) Argument shall be held on all issues in the
present litigation on Friday, November 2, 1973.
Appellants also respectfully suggest that the hearing in
this matter be en banc . Our position in these regards is
explained below.
The basic facts in this case (with an importajit
exception noted belovj) are well-known and thus need be
presented only in outline form. On July 16, 1973,
Alexander P. Butterfield, a former Deputy Assistant to
the President, testified before the Select Committee
that certain Presidential conversations had been recorded
by electronic means. On July 23, after its informal efforts
to secure the tape recordings of certain Presidential
conversations and other materials relevant to Its
Investigations had failed, the Select Committee served
subpenas upon appellee President that called for recordings
of five conversations between him and Jchn Wesley Dean III,
and that also sought certain other materials relating to
1001
■3-
alleged criminal activities connected with the 1972
presidential campaign and election. Upon the failure
of the President to honor these subpenas, the appellants,
on August 9, instituted this suit and, subsequently, on
August 29, filed a motion for summary judgment. This
motion was denied by the District Court on October 17
and the case dismissed for lack of jurisdiction. On
October 19, appellants filed their notice of appeal and
docketed the record below in this Court. j^
V While this is not the place to argue the jurisdictional
issues in depth, we do note that Judge Sirica's extraordinary
rilling that a Senate Committee and its members have no
right to come into the Courts of the United States on
these matters of great national importance simply will not
withstand analysis. For example, the District Court's
ruling fslip opinion pp. l6, 17) that constitutional
rights (here the rights of senators to investigate and
legislate) cannot be valued for jurisdictional amount
purposes is clearly contrary to prevailing law. E.g.,
Giles V. Harris, I89 U.S. 475, 435 (1902) (Holmes, J.);
Spock V. David, 469 F.2d 1047, IO52 (3rd Cir. 1972);
Williams v. Phillips, P. Supp. (D.D.C. 1973,
No. 490-73); Fifth Ave. Peace Parade Committee v. Hoover,
327 F. Supp. 238, 241-42 (S.D.N.Y. 1971); West End
Neighborhood Corp. v. Stans, 312 F. Supp. IO66, IO68
(D.D.C. 1971). To give another illustration, the
holding (slip opinion pp. 11-13) that the Administrative
Procedure Act, 5 U.S.C. §§ 7OI-706, does not provide
an independent jurisdictional basis is contrary to this
Court's opinion in Independent Broker-Dealers Trade
Association V. SEC. l42 U.S. App. D. C. 383, 442 F.2d
132, cert denied 4o4 U.S. 828 (L972); see also Rettinger v.
FTC, 392 F.2d 454 (2d Cir. I968); Citizens Committee for
Hudson Valley v. Volpe, 425 P. 2d 97 (2d Cir.) cert denied
400 U.S. 949 (1970); Abbot Laboratories v. Gardner, 3^7
U.S. 136 (1967); Rusk V. Cort, 369 U.S. 367 (1962).
1002
-4-
There has been some confusion in the press as to
the results of a meeting of October 19 among the President,
two of his counsel, and Senators Ervin and Baker of the
Select Committee. It has been suggested in the press
that a "compromise" of this lawsuit was reached whereby
appellants would forego this litigation in exchange for
"summaries" of certain tapes. This is not correct. While
the President has unilaterally offered the Committee
"summaries" of certain tape recordings, there was no ten-
tative commitment by Senators Ervin and Baker that, as a
quid pro quo, this lawsuit would be withdrawn. To the
contrary, it was understood that the Committee could pursue
its lawsuit. Senator Ervin, the Committee's Chairman,
has instructed counsel to file this motion for expedition
and otherwise to proceed with this appeal..
We need hardly stress that this case is of great moment
to the nation. The President is withholding materials that
appellants urgently and vitally need to fulfill their legi-
timate legislative functions. The public interest in production
of the subpenaed materials to the Committee is now signifi-
cantly escalated after the dramatic events of this past
weekend that saw the Special Prosecutor and the Deputy Attorney
General fired and the Attorney General
*/ There is, moreover, apparently a dispute as to the character
of the documentation offered by the President,
1003
-5-
resign.^
From the beginnings of this suit we have sought
prompt resolution of this controversy and urged expedition
in its handling — a request that has in part been
honored by appellee and the Court below.**/ The necessity
for expedition becomes more apparent as each day passes.
The Committee, pursuant to its establishing resolutionj ***/
must complete its task by February 28, 197^. Thus the
Committee must not only finish its hearings by February 28
but also, by that date, must submit its final report,
including its legislative recommendations for safeguarding
the processes by which this nation elects its President.
Because of these time pressures, we anticipate that the
Committee's hearings will be concluded in a few weeks.
If the materials subpenaed are to be fully considered by
the Committee, they must be promptly made available.
Moreover, the unfortunate firing of the Special Prosecutor
has served to deepen the crisis of confidence in this
"^ It remains to be seen whether these events have
"frustrated this Court's ruling in the Special Prosecutor's
cases, but no executive dismissals could rob a ruling
in favor of the Committee of its effectiveness for the
Congress is an equal branch of government not controlled
by executive fiat.
**/ For example, we moved the District Court to shorten the
"^Ime for answer from 60 to 20 days, a result the appellee
subsequently agreed to by stipulation.
***/ Senate Resolution 6o, 93rd Congress, 1st session (1973)
1004
-6-
country, thus making all the more urgent a ruling in this
case that v/ould assist in exposing all aspects of the
Watergate affair to public viev\r.
It is these considerations that have led us to
request the expedited schedule set forth above. Because
all issues in this case \-fere fully briefed in the District
Court, we suggest*in the interest of time, that the briefs
belov; be filed in this Court on next Monday together with
any supplemental briefs the parties may desire to submit
discussing Judge Sirica's ruling or this Court's decision
in the Special Prosecutor's cases. We also request that
the Court, at this juncture, hear and determine all issues,
jurisdictional and otherwise, in this case.;*/ If this
course is not followed, it may be impossible finally to
resolve this case before the Committee's mandate expires
in February.
We respectfully submit that the suggested course
imposes no undue hardship on the parties or the Court.
There are no factual isBues in this case, the appellee
having failed to dispute any of the assertions set forth
^ Our appeal from the District Court's dismissal of this
action with prejudice brings all issues in the litigation
before this Court. It is not unusual for an Appellate
Court, where considerations of judicial economy or other
public interest demand, to decide other issues than those
directly ruled on by a lower court. E.g. NRDC v. Morton
148 U.S. App.r.c. 5, 10-11, 458 F.2d 827, 832-33 (1972).
1005
-7-
In our Statement Of Material Pacts As To Which There Is
No Genuine Issue, The issues are thus ones of law that
have been extensively briefed in the Court below, many of
which were not reached by Judge Sirica and do not
need to be briefed again. Moreover, because of the
Special Prosecutor's cases, this Court is quite familiar
with certain of the important issues in our cause and,
in fact, has already resolved a number of them. We are
prepared to file a supplemental brief regarding Judge
Sirica's opinion and this Court's ruling in the Special
Prosecutor's cases on next Monday and are confident that
the President's counsel, who have shown capacity for
expedition in the past, can do likewise,;*/ We submit
that the public's need to get the Watergate matter behind
it once and for all — a need the President himself has
emphasized — fully Justifies whatever burden this
expedited briefing and argixment schedule may present.
"^ This Court required expedition in the Special
Prosecutor's cases and appellee's counsel were able
to meet the schedule established.
1006
-8-
Finally, we suggest that this matter, as were the
Special Prosecutor's cases, be heard en banc. It is only-
appropriate that a matter of such momentous import to
the executive, the Congress, and the nation be considered
by the entire bench,
Re^^Jectfylly submitted)
lesjJectfj^l
^^::^k?nuel Dash
^^=^^ CI-
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D. C.
Of Coiinsel
Arthur S, Miller
Chief Gonsioltant
to the Select Committee
Of Counsel
Chief Counsel
Fred D. Thompson
Minority Coiinsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
Donald S. Burris
Assistant Counsel
William T. May ton
Assistant Counsel
United States Senate
Washington, D. C. 20510
Telephone Number 225-0531
Attorneys for Appellants
1007
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
name and in the name of the UNITED STATES,
and
SAM J. ERVIN. JR. , HOWARD H. BAKER. JR. ,
HERMAN E. TALMADGE. DANIEL K. INOUYE,
JOSEPH M. MONTOYA. EDWARD J. GURNEY,
and LOWELL P. WEICKER, JR. , as United
States Senators who are nnembers of
the Senate Select Committee on
Presidential Campaign Activities.
Appellants,
V.
RICHARD M. NIXON, individually and as
President of the United States,
Appellee.
No, 1593-73
MEMORANDUM IN RESPONSE TO MOTION FOR
EXPEDITED BRIEFING AND ARGUMENT SCHEDULE
This mennorandum is submitted in behalf of Appellee, President
Richard M. Nixon, in response to Appellants' Motion for Expedited
Briefing and Argument Schedule and Suggestion for Hearing En Banc.
1008
Appellee concurs in the request by Appellants that the briefing
and argument schedule be expedited. It is, however, our view that the
schedule proposed by Appellants would, in requiring simultaneous briefs
on October 29, 1973, deprive this Court of the full exposition of the issues
that a case of this importance deserves. We believe that, as shown by
recent experience in the related case brought by the Special Prosecutor,
the filing of simultaneous briefs, on an overly accelerated schedule,
prevents the narrowing and definition of issues prior to oral argument
that is desirable in a case of this importance.
Accordingly, we would propose an expedited schediile as follows:
Appellants' brief to be filed on October 29, 1973;
Appellee's brief to be filed November 5, 1973;
Appellants' reply brief, if desired, on November 7, 1973;
Oral argument November 9, 1973.
It is our intention in this case, as in the case brought by the Special
Prosecutor, to file not merely a supplemental brief, but a self-contained
brief to relieve the Court of the burden of having to refer to the briefs
below.
We are mindful of the desire of the Senate Select Committee
for expedition and indeed have previously sought to accommodate its
2 -
1009
desire where, and to the extent, possible. Indeed it is equally the wish
of the President that the issues presented by this case be resolved as
quickly as possible. However, the desire by both parties for expedition
should not prevent the adoption of an orderly briefing schedule that will
enable counsel for both parties to be of the greatest possible assistance
to the Court.
In this connection, we would point out that while there is some
similarity in the material sought to be produced, the legal issues presented
by this case are, as reflected by the decision below, quite different from
those presented in the case brought by the Special Prosecutor. In addition
to the nnatter of jurisdiction on which the District Court reached its
decision, the present case raises issues of justiciability and the authority
of the Senate Select Committee and the propriety of its inquiry, as well
as distinct questions of separation of powers that would require the most
careful consideration by this Court if it should go beyond the grounds
relied upon by the District Court in dismissing the action.
For the foregoing reasons, we suggest a briefing and argument
schedule as outlined above, and also concur in the suggestion of the
Senate Select Committee that this case be heard en banc.
Respectfully submitted.
CHARLES ALAN WRIGHT
J. FRED BUZHARDT
LEONARD GARMENT
DOUGLAS M. PARKER
ROBERT T. ANDREWS
THOMAS P. MARINIS, JR.
The White House
Washington, D. C. 20500
Telephone Number: 4 56-1414
October 24, 1973
Attorneys for the President
3 -
34-966 O - 74 - pt. 1 - 65
1010
CERTIFICATE OF SERVICE
I, Douglas M. Parker certify that a copy of this memorandum
was served upon Chief Counsel for Appellants, Samuel Dash, Esq. ,
by delivery of a copy to the offices of the Senate Select Comn-iittee
on Presidential Campaign Activities, on October 24, 1973.
Douglas M. Parker
4 -
1011
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRi
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its
own name and in the name of the
UNITED STATES,
and
SAM J, ERVIN, JR., HCWARD H. BAKER, JR.,
HERMAN E. TALMADGE, DANIEL K. INOUYE,
JOSEPH M. MONTOYA, EDWARD J. GURNEY,
and LOWELL P. WEICKER, JR., as United
States Senators who are members of the
Senate Select Committee on Presidential
Campaign Activities
Appellants
V.
RICHARD M. NIXON, individually and as
President of the United States
Appellee
DECEIVED
OCT 26 ^973
IsTATES COURT Of APPEALS,
No. 73-2086
WITHDRAWAL OF MOTION TO EXPEDITE
Appellants hereby withdraw their previously filed motion
to expedite these proceedings and indicate their willingness^ to
be governed by the normal time schedules provided for by the
Federal Rules of Appellate Procedure and the General Rules of
this Court.
Since the motion to expedite was filed, several significant
events have occurred. Continued strong public concern over the
dismissal of the Special Prosecutor has been expressed and the
1012
-2-
President has now stated he will comply with Court orders
relating to the tapes and records subpenaed by the Special
Prosecutor. The President, however, still refuses to comply
with the Select Committee's subpenas and has withdrawn his
offer to make available to the Committee, through Senator
Stennis, certain information contained on the tapes the
Committee has subpenaed.
Legislative activity has also considerably increased. The
Senate Judiciary Committee will hold hearings next week to
examine the dismissal of the Special Prosecutor and consider
the need for legislation reestablishing that office. Numerous
Congressional leaders of varying political persuasions have
voiced support for a new Special Prosecutor and legislation
to that end will be introduced.
Because of the renewed public and legislative interest
in the Watergate affair and because there is now no
independent Special Prosecutor to conduct the extensive
investigations required, it is all the more important .
that appellants carry out the investigative mandate imposed on
them by a unanimous Senate and not be diverted by technical
or jurisdictional c±)jectiohs from securing the tapes and records
they seek. The appellants remain confident that the jurisdictional
bases they have asserted afford fully sufficient grounds
1013
-3-
to allow the Federal Courts to hear this suit. However, the
Select Committee's Chairman, in order to remove any doubt
on this issue and to resolve it as expeditously as possible,
has decided to introduce legislation in the Congress on
Monday, October 29, that will provide that a Federal District
Court has original jurisdiction to entertain suit by a duly
authorized Congressional Committee to achieve compliance with
subpenas issued in the furtherance of its legislative
functions. We anticipate, in view of the manifest public
concern over the Watergate affair, that Senator Ervin's
bill will quickly become law and thus the jurisdictional
issue resolved more promptly than if the matter were left
solely to litigation.
Because this legislative remedy will be sought, it seems
appropriate that no immediate action be taken on the present
appeal. The Court should not be required to spend time and
effort on jurisdictional issues when the jurisdictional contro-
versy! may be promptly resolved by legislation.
We expect that Senator Ervin's legislative effort will be
concluded by the end of the time period prescribed by the
applicable rules for filing the appellants' brief. When this
effort is concluded, we will submit to the Court our view as
to what action it should take. If the matter is not resolved
1014
-4-
within the time period referred to above, we will also make
an appropriate submission to the Court in accordance with
the Court's rules.
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D.C,
Of Counsel
Arthur S. Miller
Chief Consultant
to the Select
Committee
Of Counsel
Samuel Dash
Chief Counsel
Fred Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
Donald S- Burris
Assistant Counsel
William T. Mayton i
Assistant Counsel
United States Senate
Washington, D.C. 20510
Telephone Number 225-0531
Attorneys for Appellants
1015
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its
own name and in the name of the
UNITED STATES,
and
United States Court of Appeals
for the District of Columbia Circuit
fllED NOV 1^1973
)
HUGH E. KLINE
CLERK.
SAM J. ERVIN, JR., HOWARD H. BAKER, JR.,
HERMAN E. TALMADGE, DANIEL K. INOUYE,
JOSEPH M. MONTOYA, EDWARD J. GURNEY,
and LOWELL P. WEICKER, JR., as United
States Senators who are members of the
Senate Select Committee on Presidential
Campaign Activities
Appellants
RICHARD M. NIXON, individually and as
President of the United States
Appellee
No. 73-2086
MOTION FOR EXTENSION OF TIME TO FILE BRIEF OF APPELANTS
Appellants hereby move this Court to extend the time iri
which they may file their Brief o£-Appellants or other appropriate
pleading until and including January 4, 1974. The grounds for
this motion are set forth below.
Appellants' suit was dismissed by the District Court
lOlG
- 2 TT
(Sirica, J.) on October 17, 1973, for lack of jurisdiction.
On October 19, appellants noted their appeal and docketed
the record below in this Court. Appellants initially sought
to expedite briefing and argument on this matter. but, after
legislation giving the District Court jurisdiction to hear
the Select Committee's suit was introduced by Senator Ervin,
appellants, recognizing that the Court should not be required
to consider jurisdictional issues while legislation that would
remove the controversy was pending, withdrew their expedition
request. Moreover, it was appellants' view that legislation
would prove the most expeditious course for resolving the
jurisdictional issue.
The Senate, by voice vote, passed a jurisdictional bill
on November 9, 1973. The House, however, has not finally
^7 The, Senate also, on November 7, passed Resolution No. 194, which
establis)ies beyond doubt that the Committee was and is authorized
by the S'enate to subpena and sue the President to obtain information
needed for its investigation. The Resolution also recognizes that
appellants, in subpenaing and suing the President, were and are acting
with valid legislative purposes and seeking information vital to
the fulfillment of their legitimate legislative functions.
1017
- 3 -
acted on the bill. The proposed legislation is now before the
House Judiciary Committee and, by present estimates, will not
be reported out of that Committee until next week.
While we anticipate prompt House passage of this legislation,
it is now apparent that the bill will not become law before
November 28, the date the Brief of Appellants is due, and most
likely will not receive final approval until mid-December.
Consequently, appellants consider it appropriate to ask the Court
for an extension of time until January 4, 1974, to file their brief
or other appropriate pleading. Despite the fact that this extension
of time is necessitated, we still believe that the legislative
course we are pursuing will ultimately provide the most expeditious
means to resolve the jurisdictional issue.
As soon as this legislative effort is completed, we will so
advise the Court and submit our views as to what action the Court,
in accordance with its rules, should then.take.
-Respectfully submitted.
Samuel Dash
Chief Counsel
Fred Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
1018
THE UNITED STATES COURT OP APPEALS
THE DISTRICT OF COLUMBIA CIRCUI
FX)iRECEIVED
I
DEC 1 8 1973
SENATE SELECT COMMITTEE ON PRESIDENTIAL 1 CLERKA)F THE UNITED
CAMPAIGN ACTIVITIES, suing In its own \ cTATF«i onilPT Of cppfaI*?
name and in the name of the UNITED STATES, ' 5>'«'to<*uw rcnw
and
SAM J. ERVIN, JR., HOWARD H. BAKER, JR.,
HERMAN E. TALMADGE, DANIEL K. INOUYE, JOSEPH M.
MONTOYA, EDWARD J. GURNEY, and LOWELL P. WEICKER,
JR., &6 United States Senators who are members
of the Senate Select Committee on Presidential
Campaign Activities,
Appellants
V.
RICHARD M. NIXON, individually and as
President of the United States,
Appellee
No. 73-2086
MOTION FOR EXPEDITED BRIEFING AND ARGUMENT SCHEDULE
AND SUGGESTION FOR HEARING EN BANC
Appellants hereby move this Court to set an expedited
briefing and argument schedule for this case as follows:
(1) The appellants, by January 4, 197^, shall file
their Brief of Appellant on £ill issues in this case,
(2) The appellee President, by January, 11, 197^,
shall file his Brief of Appellee on all issues in this
case.
1019
-2-
(3) The appellants, if they so desire, shall file
their Reply Brief by January 15, 197^.
(4) Argument shall be held on all issues in the
present litigation on January l6, 1974.
Appellants also respectfully suggest that the
hearing in this matter be en banc. Our positions in these
regards are explained below.
1020
-3-
This case in presently on appeaJL from a ruling by
the United States District Court for the District of
Columbia (Sirica, J.) that, on October 17, dismissed
this action for lack of jurisdiction. The present motion
seeks establishment of an expedited briefing eund argument
schedule for all issues in this case.
The appellants previously asked this Court to hold
this case in abeyance while a bill to give the District
Court jurisdiction over the present suit was considered
by Congress, It was appellants? view that a legislative
solution would provide the most expeditious means for
resolution of the jurisdictional controversy even though
they remained convinced that the jurisdictional bases
they urged below were fully sufficient. Congress has
now passed a law giving the District Court jurisdiction
over this case that is codified as l8 U,S,C. SL364.*/
We are aware that one possible response to this
statute would be for the Coiirt to remand this case to
the District Court for consideration of its effect herein
57 This section became law after midnight, Tuesday
morning, December 18, upon the President's failure to
sign the bill within ten days after its transmittal to him.
A copy of this statute is attached to this memorandum.
1021
-4-
ajid determination of the other issues in this case. We
submit, however, that this is not the appropriate course
in the present situation. The Select Committee's mandate
expires on February 28, 1974* at which time it will cease
to exist. More immediately, the Committee will begin its
final set of hearings around January 21, The Committee,
therefore, has urgent need to have all the issues in this
lawsuit promptly resolved in order that it can obtain
the materiaJLs subpenaed for use in its hearings. There
is also the pressing necessity for public revelation of
all Watergate facts, a result the Special Prosecutor will
not immediately further because the materials he receives
will presently go only to the grand Jury, not to the
general public.*/
Our submission, therefore, is that the Court should
decline to remand this matter to the lower court where a
pro fonna amendment of the complaint would be all that is
"^ Relevant in this regard is the Supreme Covirt's observation
in Watkins v. United States, 35^ U.S. 178, 200 (1957):
"^"There is a_7 power of the Congress to inquire into
and publicize corruption, maladministration or inefficiency
in agencies of the Government. That is the only kind
of activity described by Woodrow Wilson in Congressional
Government when he wrote: 'The informing function of
Congress should be preferred even to its legislative
function.' Id., at 303. From the earliest times in
its history, the Congress has assisously performed
an 'informing function' of this nature.
1022
-5-
necessary to resolve the Jurisdictional issueJJ/ eind should
instead proceed to the resolution of all issues in this
case. To do so would be but an application of two well-
settled principles of appellant practice: First, that
an Appeals Court decides cases on the basis of the law as
it exists when the case reaches the appellate level. E.g.,
United States v. Alabama, 362 U.S. 602 (I96O), De Rodulfa v.
United States, 1^9 U.S. App. D.C. 15^, 164-65,
46l F.2d 1246, 1250-51 (I972K cert, denied 409 U.S.
949 (1972). Second, that an Appeals Court, where
considerations of judicial, economy or other public interest
demand, will decide other issues than those directly
ruled on by a lower court.**/ E.g., NRDC v. Morton,
148 U.S. App. D.C. 5, 10-11, 458 F.2d 827, 832-33 (1972).
5^ Riile 15, F.R.Civ.P.. provides that, even after a
complaint is answered, leave ^to eimend it_7 shall be
freely given when Justice so requires." The Courts have
demonstrated considerably liberality in allowing amendment
under this section and several decisions have allowed
amendment after dismissal for a Jurisdictional defect
to correct the Jurisdictional shortcoming. E.g., Christensson
V. Hogdal, 91 U.S. App. D.C. 251, 199 F.2d 402 (1952);
Eklund V. Mora, 4lO F.2d 731 (5th Cir. I969).
**/ The issues in this case are solely ones of law.
Appellee does not dispute any assertion set forth in
appellants' Statement of Material Facts As To Which
There Is No Genuine Issue.
1023
-6-
Recent events have also greatly simplified the
resolution of certain nonjurisdictional issues in this
case. The new statute, in addition to establishing
jurisdiction, also provides that the Conunittee has
standing to sue in its own name and in the name of the
United States to enforce its subpenas and may prosecute
its action by attorneys of its designation, thus vitiating
appellee's claims below that appellants lack standing to
bring this action and that suits brought in the name of
the United States must be prosecuted by the Attorney
General or his subordinates.
Moreover, on November 7, 1973> the Senate enacted
Senate Resolution 19^, 93d Cong,, 1st Sess. (Nov, 7, 1973)
(attached hereto), which effectively answers several other
contentions raised by appellee in the District Court.
S, Res, 194 establishes beyond doubt that the Committee
was and is authorized by the Senate to subpena and sue
the President to obtain information needed for its
investigation. The Resolution also affirms that the
Committee, in subpenaing and suing the President, was and
is acting with valid legislative purposes and seeking infor-
mation vital to the fulfillment of its legitimate legislative
functions. Appellee's claims that the Senate had not
empowered the Committee to subpena and sue the President
1024
-7-
and that the Committee's hearings constitute a criminal
trial that usurps the functions of the judiciary, while
always quite dubious,*/ are now stripped of ajiy semblance
of validity.
The remaining issues for decision are those going
to the merits of this litigation and to justiciability.
But these issues were in large part dealt with by this
Court in the Special Prosecutor's cases, Nos. 73-1962,
73-1967, and 73-1989. ^/ It will thus not be, we submit,
an undue hardship on this Court to resolve these issues
without benefit of further District Court exposition.
Before the decision to introduce a jiirisdictional
bill was reached, appellants asked this Court for an
expedited briefing and argument schedule for this appeal.
Appellee agreed at that time that an expedited schedule
was needed in order that this important case be promptly
J*/ It has long been established, for example, that it is
entirely proper for a Congressional committee to investigate
criminality in the executive branch. E.g., McGrain v.
Daugherty, 273 U.S. 135 (1927); Sinclair v. United States,
279 U.S. 263 (1929).
**/ Note further that I8 U.S.C. I 1364 provides that the
district Court shall have jurisdiction to enter any such
judgment or decree" in a civil action brought against the
President under this section "to enforce obedience to any
subpena or order" issued by the Senate Select Committee.
This provision in particular, and the statute generally,
constitute a determination by Congress, not vetoed by
the President, that this case is fully justiciable.
1025
-8-
resolved.*/ Also, appellee did not then contest our
request that all Issues in this case be considered on
the present appeal by this Court,
We are confident, in view of appellee's public state-
ments regarding his desire to disclose all relevant ,
Watergate facts, that appellee will still agree that
this matter be handled on an expedited basis and not
object to our suggestion that all issues be decided
at this time. Certainly, with the passage of l8 U.S.C,
S 1364 and S, Res, 19^, the issues in this case have
been greatly simplified, thus making fvll Judicial
disposition at this stage even more practical.
If, however, the Coxxrt does not a^ree with the
procedures we here \irge, we woiild request that it promptly
remand this case to the District Court so that Court may
quickly decide an issues in this case.
Appellee also previously agreed to our former
sviggestion that hearing on this matter be en banc. We
renew this suggestion, being of the continuing view that
^7 Appellants were also able to meet the expedited
briefing and argument schedule in the Special Prosecutor's
cases that this Court there deemed necessary. As noted,
si miliar considerations of urgency pervade the present
matter.
34-966 O - 74 - pi. 1 - 66
1026
-9-
a case of this importance to the Executive, the Congress,
and the Nation should be decided by' the Aill bench,
respectfully submittt
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D, C,
Of Counsel
Arthur S. Miller
Chief Consultant
to the Select
Committee
Of Counsel
luel Dash '
Chief Counsel
Fred Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Co\insel
Richard B. Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
Donald S. Burris
Assistant Counsel
William T. May ton
Assistant Counsel
United States Senate
Washington, D, C. 20510
Telephone Number 225-0531
Attorneys for Appellants
1027
1 uui_i;u LnW / J i 7 U
•»in<aii«Mrmir<nfv- t - li ^'Trta^iO-iim ra" rr iwann mmm^rin, ->rg.Tiiit M'lhKTw nwwinhWKii r-iijmnaft t hiit r
Vineta'thiril CongrcBs of the United States of america
AT THE FIRST SESSION
Begun and held at the City of Washington on Wednesday, the third day of January,
one thousand nine hundred and seventy-three
anglct
To confer jarisdiction npon the district court of the United States of certain
civil actions brought by the Senate Select Committee on Presidential Campaign
Activiaes, and for other purposes.
Be it enacted by the Senate and HoMse of Representatives of the
V a'lted States of America in Congress assembled, That ( a) the District
Court of the United States for the District of Columbia shall have
original jurisdiction, without regard to the sum or value of the matter
in controversy, of any civil action heretofore or hereafter brought by
the Senate Select Committee on Presidential Campaign Activities,
wliich was created on February 7, 1973, bj- Senate Resolution Num-
bered 60, to enforce or secure a declaration concerning the validity
of any subpoena or order heretofore or hereafter issued by said
Committee to the President or the Vice President or axiy other ofiScer
of the United States or any officer or employee of any department or
agency of the United States to procure the production before the said
Committee of any information, documents, taped recordings, or other
maierinls relevant to matters the said Committee is authorized to
investigate, and the said District Court shall have jurisdiction to enter
any such judgment or decree in any such civil action as may be neces-
sary or appropriate to enforce obedience to any such subpoena or
order.
(b) The Senate Select Committee on Presidential Campaign Activi-
ties shall have authority to prosecute in its own name or in the name
of the United States in the District Court of the United States for the
District of Columbia any civil action heretofore or hereafter brought
by said Committee to enforce or secure a declaration concerning the
validity of any subpoena or order heretofore or hereafter issued by
said Committee to the President or Vice President or any other officer
of the United States or any officer or employee of any department of
the United States to procure the production before the said Committee
of anj- information, documents, taped recordings, or other materials
relevant to the matters the Committee is authorized to investigate, and
pray the said District Coitrt to enter such judgment or decree in said
civil action as may be necessary or appropriate to enforce any such
subpoena or order.
(c) The Senate Select Committee on Presidential Campaign Activi-
ties may be represented by such attorneys as it may designate in any
action prosecuted by said Committee imder this Act.
Speaker of the House of Representatives.
Vica^Tresi<hjr^~^f-4h.»J?intethSUitrv,Ktk
M.te
i
President of the Senate.wL^ Ijly^^^n^^'^-^^^..^
1028
93d congress
IsT Sebsiok
S. RES, 194
IN THE SENATE OE THE IGNITED STATES
No\T,MBKn 2,1973
Mr. EnviN (for liimself. Mr. Bakku, Mr. Gurxey, Mr. Inouyk, Mr. Moxioya,
Mr. TAF.MADdE, and Mr. Wkickkr) siilmiittod the followinp: resoliirion;
which was ordered to l)e phiced on the ealeiidar
No\'EMBKR 7, 197;»
Considered and agreed to
RESOLUTION
Relating to S. Res. 60.
1 liesolved, 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
1029
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 meml)ers
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-
1030
3
1 tion to achieve compliance with those su])penas, were and
2 are acting to detemiine the extent of possible illegal, im-
3 proper, or unethical conduct in connection with the Pres-
4 idential campaign and election of 1972 bj^ 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 are of vital
18 importance in determining the extent of such involvement
19 and in determining the need for and scope of corrective
20 legislation.
1031
93d congress
IST Session
S.RES. 194
RESOLUTION
Relating to S. Res. 60.
By Mr. Ervin, Mr. Bakkr, Mr. Gurney, Mr.
Inouye, Mr. MoNTOYA, Mr. TAL]iL\DGE, and
Mr. Weicker
NOVEMBEK 2, 1973
Ordered to be placed on the calendar
NOVEMBEE 7, 1973
Considered aud agreed to
1032
THE UNITED STATES COURT OF APPEAL?; FOR
THE DISTRICT OF COLUMBIA CIRCUr.T
SENATE SELECT COKiMITTEE ON
PR?:SIDENTIAL CAMPAIGis' ACTIVITIES,
suing in its own name and in the narno of
the UNITED STATES,
and
S;v.M J. ERVIN, JR., HOWARD H. BAKER, JR.,
HER.M.AN E. TAL^'JADGE, DANIEL K. INOUYE,
JOSEPH M. MONTOYA, EDV.'ARD J. GURNEY,
and LOVJELL P. WEICKER, JR., as United States
Senators who are members of the Senate Select
Committee on Presidential Campaign Activities,
Appellants
V.
RICHARD M. NIXON, individually and as
President of the United States,
Appellee
RESPONSE OF APPELLEE TO MOTION FOR EXPEDITED
BRIEFING AND ARGUMENT SCHEDULE
No. 73-2086
On October 17, 1973, the District Court dismissed the
present action for want of jurisdiction. On Octobar 19th the
plaintiffs filed a notice of appeal.
The events that follov;ed this simple beginning are of im-
portance in assessing the present motion of appellants. On
»
October 23rd appellants moved for an expedited briefing and
argument schedule. On October 24th we filed our response, in
which we did not object to expedited treatment of tl\e case.
1033
but proposed a schedule we considered more satisfactory than
that suggested by appellants. On October 25th appellants
filed with this Court a document withdrawing their request
of two days before for an expedited appeal, and specifically
represented to this Court that Ijy that action they v/ishod
to "indicate th.eir willingness io be governed by the normal
time schedule provided for by the Federal Rules of Appellate
Procedure and the general rules of this Court."
But on December 19th, having taken advantage of the
normal time schedule for appeals so that they might accom-
plish legislative legerdemain that they hope will change the
rules of the game, they come once again to this Court with a
new motion for expedited briefing and argument schedule.
The appellants have taken full advantage of the normal
time schedule for appeals. Their appeal -^as docketed with
this Court on November 26th, two days before the latest day
permitted by FRAP 11 (a) . They propose that their brief be
filed by January 4th, the last business day before it would
be due in any event under FRAP 31 (a) .
1. Ordinarily the last day for filing of their brief would
be January 5th, but since that is a Saturday they would,
under FRAP 27(a), be permitted to file on Monday,
January 7th.
1034
Thus the situation is that the appellants have
in substance used for their own purposes all of the
time the rules make available to litigants on appeal,
but, despite their formal representation to this
Court of their "willingness to be governed by the
normal time schedule," they now propose that appellees
be allowed seven days, rather than the 30 days provided
by FRAP 31(a), for the preparation and filing of our
brief and they presume to tell this Court when it
should hear their appeal. This is a strange way for
a litigant to deal with a court.
In October, v;hen appellants considered this a
matter of great urgency, we indicated our willingness
to cooperate with them aijd to proceed under a schedule
that would have required us to prepare our brief in a
time frame that would have imposed great burdens upon
us. But the sense of urgency the appellants felt on
October 23rd had apparently vanished by October 25th.
They were perfectly prepared to tolerate two months of
delay to serve their own purposes. Now that they have
done this, they once again regard the case as urgent
and ask appellee and this Court to inconvenience
themselves to accommodate the appellants.
-3-
1033
For appellee it would be more than merely an incon-
venience. We anticipate that a Brief of 7\ppellee "on all
issues in this case," as called for by appellants* motion,
would be a very lengthy document. It would be difficult
under any circumstances to prepai"G such a brief in the seven
days that appellants propo.se we be allowed. Circumstances
have changed significantly since October, when we were
willing — though even then it would be difficult — to
prepare a major brief in a case of great importance in so
short a time. The principal responsibility for this brief,
as with all briefs filed on behalf of the President in this
case and the related case brought by the Special Prosecutor,
will be on Messrs. Wright and Marinis. In October Mr. Marinis
was working in Washington full time. He has since returned
to his law firm in Houston, and though he remains available
as a consultant to assist on the brief, it will require
more time to write the brief without his fulltime service.
In addition, Mr. Wright is committed to attending a meeting
of a subcomiaittee of the Committee on Court Administration
of the Judicial Conference of the United States on January
7th and 8th, and thus would not be able to work on the brief
on two of the seven days that appellants propose appellee be
allowed.
This chain of events and these circumstances should in
-4-
1036
themselves be enough to cause this Court to deny the
December 19th motion and to allow appellee "to be governed
by the normal time schedule," as appellants have been. But
there is more.
To hoar this appeal at all, much less on a time schedule
that allows the normal time to one party but less than one-
quarter the normal time to the other, would make a travesty
of efficient judicial administration. It would require the
parties to brief and argue all of the issues in the case,
and it would require this Court patiently to consider and
hear those arguments, when it is likely that many of those
issues need never be decided.
The present appeal would bring to this Court all of the
issues that were argued before Judge Sirica. These issues —
some going to jurisdiction and others to the merits — are
very numerous. But this appeal would also now include a
new and very difficult issue. At the outset both parties
and the Court would have to consider what effect, if any,
the Act of December 18th has on a case that was dismissed
for want of jurisdiction by the District Court long before
the statute was enacted. Can a Court of Appeals reverse a
District Court if the District Court correctly determined
that it lacked jurisdiction and subsequently, while the
case is in the Court of Appeals, a statute is enacted that
purports to grant to the District Court jurisdiction of such
-5-
1037
a case? That is in itself a very complex question, on which
the precedents are scanty. There is a body of law, dating
back to the case of United States v. Schooner Pe<3gx, 1 Cranch
(5 U.S.) 103 (1801), on the effect of a change in the sub-
stantive law v.hile a case is still pendente lite. There is
also a good deal of law, of which Ex Parte McCardle, 7 Wall.
(74 U.S.) 506 (1858), is the best known example, on the ef-
fect of a repeal of jurisdiction while a case is on appeal.
See de Rodulf a v. United States, 149 U.S. App. D.C. 154,
461 F. 2d 1240, 1251 n. 56 (D.C. Cir. 1972). But this Court
would have to write on an essentially clean slate in de-
ciding whether Congress can confer jurisdiction retroactively.
It would be an interesting issue to argue — but both
sides would also have to argue all of the other issues
without knowing how the Court would resolve this matter of
a retroactive grant of jurisdiction. If the Court should
decide that the Act of Decembn-r 18th is applicable to the
present suit, all of our argument on the jurisdictional is-
sues that were decisive in the District Court would be a
waste of breath. If the Court should rule that the new
statute is not applicable to the present case, and if it
should find that the District Court was right in holding
that on October 17th there was no jurisdiction of such a
case, any argument going to the merits would be superfluous.
In addition, this Court's consideration of those difficult
-6-
1038
jurisdictional questions would be good for this day and train
only, since inevitably the Senate committee would commence
a new action relying on the new statute.
Finally, if this Court should hold that there is juris-
diction of this case — either because it considers the Act
of December 18th to be applicable or because it finds that
the District Court erred in holding in October that it had
no jurisdiction of such a case — this Court would have to
sit as a court of first instance on the merits of the case.
Because Judge Sirica held that he had no jurisdiction, he
quite properly did not reach the merits of the case. Thus,
wholly aside from the obvious differences that may apply to
a demand on the President by a Senate committee and a demand
on the President by a grand jury, there has been no adjudica-
tion of whether "the uniquely powerful showing" of need that
influenced a majority of this Court in Nixon v. Sirica ,
No. 73-1962 (D.C. Cir., Oct. 12, 1973), has been made in the
present case. That is the kind of issue that should be de-
termined in the first instance by the District Court, subject
to review in this appellate tribunal, rather than having this
Court act as a court of original jurisdiction.
Appellants obviously have doubts — well-justified as
we have endeavored to show — whether this Court will wish
to act on the present case in the posture it has now assumed.
They propose as an alternative that this Court "promptly
-7-
1039
romand this case to the District Court so that Court may
quickly decide all issues in this case." Clearly such a
procedure would be joreferable to hearing the present appeal
on all issues, though appellants do not cite — and we are
not ourselves aware of — any .lUihority for a remand at the
instance of an appellant so that he can a^raend his complaint
and strengthen his case. The more orderly procedure, v/e
submit, would be for appellants to dismiss the present appeal
and to commence a new action in the District Court that
would be addressed to those issues, and only those issues,
that are presently relevant.
Respectfully submitted,
CHARLES ALAN V;RIGHT
2500 Red River St.
Austin, Texas 78705
LEONARD G?^RMENT
J. FRED BUZHARDT
ROBERT T. ANDREWS
The White House
Washington, D.C. 20500
THOMAS P. MARINIS, JR.
First City National Bank Bldg.
Houston, Texas 77002
Attorneys for the President
Of Counsel
RICHARD A. HAUSER
K. GREGORY HAYNES
GEORGE P. WILLIAJ-IS
1040
CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of December,
1973, a true copy of the foregoing Response of Appellee to
Motion for Expedited Briefing and Argument Schedule v;as
hand delivered to the offices of the Chief Counsel of the
Senate Select Committee on Presidential Campaign Activities
in the New Senate Office Building.
f
GEORGE P. WILLIAMS
The White House
Washington, D.C. 20500
Attorney for Appellee
1041
THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own name
and in the name of the UNITED STATES,
and
SAM J. ERVIN, JR., HOWARD H. BAKER, JR.,
HERMAN E. TALMADGE, DANIEL K. INOUYE,
JOSEPH M. MONTOYA, EDWARD J. GURNEY, and
LOWELL P. WEICKER, JR., as United States
Senators who are members of the Senate Select
Committee on Presidential Campaign Activities,
Appellants
V,
RICHARD M. NIXON, individually and as
President of the United States,
Appellee
No. 73-2086
REPLY MEMORANDUM IN
SUPPORT OF MOTION FOR
E XPE DITE D BRIEFING AND ARGUMENT SCHEDULE
AND SUGGESTION FOR HEARING P:N BANC
Appellants, from the beginning in boih the District Court and
this Couit, have sought to have this case resolved in the most expedi-
tious marjier. Our request to hold the present appeal in abcyaxice
pending passage of a jurisdictional statute was to further this end--it
was our belief that the legislative route would, in the long run.
34-966 O - 74 - pt. I - 67
1042
provide the quickest means for settlement of the jurisdictional issues
in this controversy,*/ The present request for expedition is thus
wholly consistent with our previous actions in this case.
Appellee's opposition to this request would have the evident
effect of delaying resolution of this case beyond February 28, 1974,
the date the Select Committee, under S. Res. 60, ceases to exist.
This fact is most apparent in appellee's suggestion that appellants
should dismiss the present appeal and commence a new action in the
District Court where appellee would have 60 days to answer a new
complaint and other opportuaiities to postpone final judgment until
the Coinmittee's life expires. And, of course, the inevitable appeal
that would follow a District Court decision would consume even more
time.
As previously submitted, we believe the schedule we have
urged would impose no undue hardship on the parties or the Court.
Surely appellee, vvdth the great resources at his cominand, can
arrange for expeditious preparation of a brief on issues which his
counsel are fully familiar with and have briefed several times.
And, we respectfully submit, this Court will be able to handle all
issues in this case on an expedited basis without uiidue difficulties.
*^/ It is exceedingly difficult for the President to disn^iss the
new jurisdictional statute as "legislative legerdermain" since he
failed to veto it and allowed it to become law.
1043
-3-
The jurisdiction of the Federal Courfs over this controversy-
has been established beyond any question through the enactment of
Public Law 93-190, which is now codified as 18 U.S.C. § 1364. That
statute, which applies to "cuny civil action heretofore , . . brought"
by the CoiTimittee, was clearly intended to confer jurisdiction over
this case. And there is no doubt as to Congress' constitutional
power to accomplish that result. Congress has wide discretion in
reg\ilating the jurisdiction of the Federal Courts. See C. Wright,
Law of Federal Courts § 10 (1970 ed. ). Specifically, Congress may-
take away the jurisdiction of Federal Courts over pending cases.
E. g. . Ex Parte McCardle, 7 Wall (74 U.S.) 506 (1858); De Rodulfa v.
United States. 149 U.S. App. D. C. 154, 461 F.2d 1246 (1972), and
cases there discussed. A fortiori. Congress may extend federal
jurisdiction to pending cases. The Supreme Court so held in United
States V. Alabama, 362 U.S. 602 (I960), cited at page 5 of our
Motion. There the Court ruled that the Civil Rights Act of I960
operated to confer federal jurisdiction over a suit that had been dis-
missed by the District Court prior to passage of the Act, stating
that "(u)nder fainiliar principles, the case must be decided on the
basis of law now controlling ..." 362 U.S. at 604. Appellee
cites no contrary authority*/ and we know of none. There is
*/ Indeed, all of the authorities cited by appellee (p. 6) sus-
tain the power of Congress to enact legislation applicable to pending
cases.
1044
-4-
accordingly no question as to the Federal Courts' jurisdiction over this
controversy.
Moreover, the remaining threshold issues in this case- -those
relating to standing and the Committee's right to subpena and sue
the President and to investigate wrongdoing in the executive branch--
have been greatly simplified by the passage of 18 U.S.C. I 1364 and
S. Res. 194,
In these circumstances, and given the urgent need for prompt
resolution of this controversy, this Court should now proceed to
decide the major issues of justiciability and the merits. By virtue
of its decision in Nixon v. Sirica, this court is already conversant
with these issues. We have no doubt that the Court, on the basis
of the undisputed facts in this case*/, can conclude that, as in the
Special Prosecutor's cases, there is a "uniquely powerful showing"
of need that demands adjudication in appellants' favor.
It is thus our conclusion that the appropriate course is for
the Court to deal with all issues in this case on an expedited basis.
Appellee suggests no good reason why the tiine -consuming process
of remand. District Court decision, and subsequent appeal should be
*/ There are no factual issues im this case, appellee having
failed to contest any of the assertions set forth in the District
Court in appellants' State of Material Facts As To Which There
Is No Genuine Issue.
1045
-5-
pursued, and there is none. Appellants' motion for an expedited
briefing and argunaent schedule should be granted. *^/
Respectfully subnriitted.
\K^i^r^t'rt^/^/'.
Sherman Cohn
Eugene Gressman
Jerome A. Barron
WasMngton, D, C.
Of Counsel
Arthur S. Miller
Chief Consultant to
the Select Committee
Of Counsel
Samuel Dash
Chief Counsel
Fred Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
Pionajd D, Rotunda
Assistant Counsel
Donald S, Burris
Assistant Counsel
William T. Mayton
Assistant Counsel —
United States Senate
"Washington, D. C. 20510
Telephone Number 225-0531
Attorneys for Appellants
*^/ Appellee has failed to deal with our request that this appeal
be heard en banc and we thus assume that he, as previously, has no
objection to this suggestion if the Court decides to retain and decide
this case.
1046
Mnxith ^iat^s (Unnti ni ^ppj^als
FOR THE DISTRICT OF COLUMBIA CIRCUJT
No. 73-2086 September Term. 1973
Civil Action 1593-73
Senate Select Committee on Presidential z'^
'Campaign Activities, suing in its own - « j. ' A-n-)'h
name I and in the name of the United States, United Stales CoUri OT a^jp-uli
et al . , for the Ois'-rid cf Colu-.b'- Circuu
! Appellants
V. ^
pi[£0 DEC 2 81973
Richard M. Nixon, Individually and as ^ clerk
President of the United States,
Before: Bazelon, Chief Judge; Wright, McGowan, Leventhal, Robinson,
MacKinnon and Wilkey, Circuit Judges
ORDER
On consideration of appellants' motion for expedited briefing
and argument schedule and suggestion for hearing ^n banc and of
the responsive pleadings filed with respect thereto, it is
ORDERED by the Court, en banc, that this case is remanded to the
United States District Court for the District of Columbia for further
proceedings in light of Pub. L. No. 93-190, to be codified as 18 U.S.C.
§ 1364.
The Clerk is directed to issue a certified copy of this order to
the District Court forthwith.
per Curiam
1047
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COhUnlTTEE ON
PRESIDENTIAL Ci'iMPAIGN
ACTIVITIES, SUING IN ITS OV/N.
NAME Ar© IN THE NA>iE OF THE
UNITED STATE., ET AL,
Plaintiffs,
vs
RICHARD M. NIXON, INDIVIDUALLY
AI© PRESIDENT OF THE UNITED
STATES ,
Defendant.
CIVIL ACTION NO. 1593-73
Fn
J A hi y
MMes F
ORDER
The above captioned case is reassigned from Chief Judge
John J. Sirica to Judge Gerhard A. Gesell for all purposes.
'rk
/t A
n
■# •. »
January 7, 197*+
'JOHN/ J. SIRICA
States District Judge
Chief Judge
A TKUE COPY
1048
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA-
FILED Jfl/^ ^ ^
JAMES F. DAVEYU
-A
Civil Action
No. 1593-73
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al..
Plaintiffs
V.
RICHARD M. NIXON, individually and as
President of the United States,
Defendant
PLAINTIFFS' MEMORANDUM ON REMAND
The Court of Appeals has now remajided this case to this
Court for consideration of the effect of Public Law 93-190
(to be codified as l8 U.S.C. § 1364), which gives this Court
jurisdiction over the present controversy and also establishes
plaintiffs' standing to sue in the Select Committee's own name
and in the name of the United States.*/
In addition to the enactment of this statute, which beceune
law on December 19, 1973* upon the President's failure to sign
it within ten days of transmittal to him, there are several other
significant events affecting this lawsuit that have occurred
since this matter was last briefed before this Court. The Senate,
on November 7» 1973* unanimously enacted Senate Resolution 19^*
93rd Cong., 1st Sess., which speaks to the Select Committee's
authority to subpena and sue the President and to investigate
wrongdoing in the executive branch. The Court of Appeals, on
y The Court of Appeals order states that "this case is
remanded to the United States District Court for further
proceedings in light of Pub.,L. No. 93-190, to be codified as
18 U.S.C. S 1364."
1049
-2-.
October 12, 1973, decided Nixon v. Sirica, Nos. 73-1962, 73-1967,
73-1989, a decision highly relevant to the questions of Justicia-
bility and the merits in this litigation. Also, the President,
In compliance with Court order and voluntarily, has turned over
to this Court and the Special Prosecutor certain of the tapes
and docvunents sought by this suit, an action which significantly
affects his claims of confidentiality regarding those materials.
The ramifications of these various events to the present
proceeding are the subject of this memorandum .J|/
I. All Threshold Questions Must Be Resolved in Plaintiffs' Favor
The President has raised certain technical and jurisdictional
objections to the maintenance of this suit. None of these
objections, particularly in view of the recent actions by the
full Congress and the Senate, will withstand analysis.
A. The District Court Has Jurisdiction Over This Lawsuit
Upon this Court's dismissal of this action for want of
Jurisdiction, Chairman Ervin introduced a bill in Congress to
provide jurisdiction over this litigation in the belief that the
legislative route would be the most expeditious course for
resolution of that particular controversy . **/ The Congress has
now enacted, and the President failed to veto, P.L. 93-190, which
provides unquestionable jurisdictional foundation for this actlcn.
jt/Thls memorandum supports our Motion for Summary Judgment filed
on August 29, 1973, which, after the Court of Appeals remand, is
still pending.
**/ Senator Ervin' s action in this regard was consistent with
this Court's observation in its October 17 opinion in this case
(File Opinion 5-6, 18) that Congressional action could provide
Jurisdiction in this case.
1050
-3-
Subsectlon (a) of this statute provides:
"The District Court of the United States for the
District of Columbia shall have original Jurisdiction,
without regard to the sum or value of the matter In
controversy, of any civil action heretofore or here-
after brought by the Senate Select Committee on
Presidential Campaign Activities, which was created on
February 7, 1973, by Senate Resolution Numbered 6o, to
enforce or secure a declaration concerning the
validity of any subpoena or order heretofore or
hereafter Issued by said Committee to the President
or the Vice President or any other officer of the
United States or any officer or employee of any
department or agency of the United States to procure
the production before the said Committee of any
information, docximents, taped recordings, or other
materials relevant to matters the said Committee is
authorized to investigate, and the said District Court
shall have Jurisdiction to enter any such Judgment or
decree in any such civil action as may be necessary or
appropriate to enforce obedlance to any such subpoena
or order."
This statute, which applies to "any civil action heretofore
. . . brought" by the Committee, was clearly intended to confer
Jurisdiction in this case. There is no doubt as to Congress'
constitutional power to accomplish that result for Congress has
wide discretion in regulating the Jurisdiction of the Federal
Courts. See C. Wright, Law of Federal Courts § 10 (1970 ed.).
Congress may take away the Jurisdiction of Federal Courts over
pending cases. E.g., Ex Parte McCardle, 7 Wall (7^ U.S.) 506
(1868) J de Rodulfa v. United States, l49 U.S. App. D.C. 15^1, 46l
P. 2d 1240 (1972), and cases there discussed; see also, Crozier v.
Krupp, 224 U.S. 290 (1912). And, a fortiori. Congress may extend
federal Jurisdiction to pending cases. The Supreme Court so held
In United States v. Alabama, 362 U.S. 602 (i960) (per curiam),
where it ruled that the Civil Rights Act of i960 operated to
confer federal Jurisdiction over a suit that had been dismissed by
the District Court prior to passage of the Act, stating that
"(u)nder familiar principles, the case must be decided on the
basis of law now controlling.. . ." 362 U.S. at 6o4. See also.
1051
-4-
In Re ron^en. 7^ P. 2d 4ll (7th Cir. I935) . The
basic doctrine that an appeal is governed by the law in existence
at the time of the appeal has been established at least since
the Supreme Court ',s_decislon in. United States,, v^ The, Schooner
Peggy, 1 Cranch (5 U.S.) 103 (I801) (Marshall, j.). See, e.g.,
Hamm v. Rockhin . 379 U.S. 306, 312-13 (1968); Carpenter v.
Wabash Ry. Co.^ 309 U.S. 23, 26-27 (19^0).
The original Complaint in this case has now been properly
amended by leave of Court and without objection of defendant to
include an allegation that Jurisdiction rests on the new
statute, and the Court has informed defendant that, pursuant to
P. R. Civ. P. 15, he must answer within ten days.*/ The Court
allowance of amendment is, of course, perfectly consistent with
the Court of Appeals' remand order that returned this case "for
further proceedings in light of Pub.L. No. 93-190." There is
thus no need for plaintiffs to file a new lawsuit where, we trust,
the issue of retroactivity would not even be raised by defendant
and this Court has both the power and responsibility, on the
basis of the new statute, the Court of Appeals 's remajid and the
amended Complaint, to rule that Jurisdictioneil requirements in
this case are fulfilled.
U These rulings were by Sirica, C. J.
1052
•5-
B. Plaintiffs Have Standing to Bring This Action
Subsection (b) of P.L. 93-190 declares that:
"The- SenatB- Select Committee on Presidential
Campaign Activities shall have authority to prosecute
in its own name or in the name of the United States in
the District Court of the United States for the Distric
of Colximbia any civil action heretofore or hereafter
brought by said Committee to enforce or secure a
declaration concerning the validity of any subpoena
or order heretofore or hereafter Issued by said
Committee to the President or Vice President or any
other officer of the United States or any officer or
employee of any department of the United States to procure
the production before the said Committee of any
information, documents, taped recordings, or other
materials relevant to the matters the Committee is
authorized to Investigate, and pray the said District
Court to enter such judgment or decree in said civil
action as may be necessary or appropriate to enforce
any such subpoena or order."
This provision also makes clear that it is to apply to actions
brought by the Committee prior to its enactment. Thus there is
no longer any question as to plaintiff^ staiidlng to bring this
action.*/
It is also now established by P.L. 93-190 that plaintiffs
may prosecute this action in the name of the United States by
the attorneys of their choice. Subsection (c) states:
"The Senate Select Committee on Presidential
Campaign Activities may be represented by such
attorneys as it may designate in any action prosecuted
by said Committee under this Act."
This provision eliminates defendant's claim, with which this
Court apparently agreed (File Opinion pp. 7-8), that suits
*/ It was always certain, however, as pointed out at p. 13 of our
Supplemental Memorandum In Support of Plaintiffs ' Motion for
Summary Judgment, that plaintiffs' stake in the discharge of
their official responsibilities invested them with standing to
bring this action under applicable legal principles as they existed
before the passage of this statute.
1053
-6-
brought In the name of the United States must, under 28 U.S.C.
i 516, be prosecuted by the Attorney GenersJ. or his subordi-
nates. *J
C. The Committee, Under S. Res. 6d and S. Res. 194, Has
and Had Full Authority to Subpena the President
The President has contended that the Committee, under
S. Res. 60, lacked authority to Issue subpenas to him.
Plaintiffs, on the other hand, have asserted that It is plain
from the language of S. Res. 60 and the context of its passage
that this Resolution authorizes subpenas to the President.
As previously observed, S. Res. 60 empowers the Committee
to Investigate the extent of the President's own possible
involvement in unethical, illegal, or improper conduct in the
presidential campaign and election of 1972 and was, in fact,
passed in an atmosphere of widespread public concern regarding
the possible participation of the President himself in certain
aspects of the Watergate affair. See S. Res. 60, Sec. 1 (a)
and 119 Cong. Rec. at S2233 (1973) (remarks of Senator Ervin) .
Moreover, Sec. 3 (a) (5) of S. Res. 60 authorizes the Committee
to issue subpenas duces teciun to "any . . . officer ... of
the executive branch of the United States Government," a term
which obviously Includes the President.**/ Thus it has always
been apparent to plaintiffs that subpenas to the President were
authorized.
^7 Section 51b provides for prosecution of suits brought in the
name of the United States by the Attorney General or his
subordinates "/~e_7xcept as otherwise authorized by law." The
prosecution of the present suit by attorneys of the Committee's
designation is now, under the terms of § 516, "authorized by law,'
i.e., the provisions of P.L. 93-190.
**/ Both S. Res. 60 and the United States Constitution refer to
the "office of the President." See S. Res. 60, Sees. 1 (a),
2 (7), 2 (9), 2 (11) and U. S. Const. Art. II, Sec. 1,
Clauses 1, 5, 7-
1054
-7-
The full Senate has now unanimously affirmed plaintiffs'
view. On November 7, 1973, it enacted S. Res. 194, which
provides in Section 1:
"By S. Res. 60, Ninety-third Congress, first
session ^19737, section 3 T^T (5), the Select Committee
on Presidential Campaign Activities was and is
empowered to issue subpenas for docviraents, tapes, and
other material to any officer of the executive branch
of the United States Government. In view of the fact
that the President of the United States is, as
recognized by S. Res. 6o, aji officer of the United
States, and was a candidate for the office of
President in 1972 and is therefore a person whose
activities the select oommittee is authorized by
S. Res. 6o to investigate, it is the sense of the
Senate that the select committee's issuance on
July 23, 1973, of two subpenas duces tecum to the
President for the production of tapes and other
materials was and is fi:illy authorized by S, Res. 60.
Moreover, the Senate hereby approves and ratifies the
committee's issuance of these subpenas."
This Resolution exposes defendant's statement that "it is
beyond belief that any member of the Senate" in enacting
S. Res. 6o "had any thought that he was voting to empower the
Committee to take the xinprecedented and unauthorized action that
has led to the present litigation"*/ as the hyperbole it
always was. The Senate has now put its imprimatur on plaintiffs'
reading of S. Res. 60 and fully ratified its action in subpenaing
the President**/
5^' Brief of Richard M. Nixon In Opposition to Plaintiffs' Motion
For Summary Judgement, p. 48 (hereinafter cited as "Br.")
**/ In Barenblatt v. United States, 36O U.S. 109, 118-20 (1959),
The Supreme Court found that a Resolution of the House of
Representatives raising the status of the House Un-American
Activities Committee to that of a standing Committee served,
along with other House resolutions and actions, to validate past
actions by the Committee and to define the scope of its
authority under its enabling resolution. The Court there said
(p. 119):
"Just as legislation is often given meaning by the
gloss of legislative reports, administrative interpreta
tion and long usage, so the proper meaning of an
authorization to a congressional committee is not to
be derived alone from its abstract terms unrelated to
the definite context furnished them by the course of
congressional actions."
In FHE Oil Co. v. Commissioner of Internal Revenue, I50 F.2d 857,
858 (5th Cir. 1945) (per curiam), the Court stated that a
legislative resolution "/a/s an expression of opinion on a point
of law . . . would of course be entitled to most respectful
consideration by the courts . . . ." See further, Shelton v.
United States, 131 U.S. App. D.C. 315, 320, 404 P. 2d 1292, I296
(1968) cert, denied. 393 U.S. 1024 (I969) . Cf. Red Lion
Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 38O-81 (1970) where
the Supreme Court said that "subsequent legislation declaring the
intent of an earlier statute is entitled to great weight in
statutory construction."
I
1055
D. Plaintiffs Were Authorized to Bring This Action Against
the President
S. Res. 19^ also provides a complete answer to defendant's
assertion that this suit was not authorized because plaintiffs
did not receive prior Senate approval for its instigation
pursuant to S. Res. 60, Sec. 3 (a) (6), which empowers the
Committee to "make to the Senate any recommendations it deems
appropriate" respecting noncompliance with its subpenas.
Section 2 of S. Res. 194 declares:
"On A\igust 9, 1973j the select committee and its
members instituted suit against the President of the
United States in the United States District Court for
the District of Columbia to achieve compliance with
the two subpenas referenced in section 1 above, and
since that time, in both the district court and the
United States Court of Appeals for the District of
Columbia Circuit, have actively pursued this litigation
It is the sense of the Senate that the initiation
and pursuit of this litigation by the select committee
and its members was and is fully authorized by
applicable custom and law, including the provisions
of S. Res. 262, Seventieth Congress, first session
(1928). In view of the entirely discretionary
provisions of section 3 (a) (6) of S. Res. 60, it is
further the sense of the Senate that the initiation of
this lawsuit did not require the prior approval of the
Senate. Moreover, the Senate hereby approves and
ratifies the actions of the select committee in
instituting and pursuing the aforesaid litigation."
In view of this approval and ratification by the Senate of
the Committee's action In suing the President, defendant's claim
of no authority, while always extremely dubious, is now totally
untenable.
E. The Coimnlttee, in Subpenalng and Suing the President.
Is Acting with Valid Legislative Purposes
The President has recognized that the "power of the Congress
to conduct investigations is Inherent in the legislative process
and is broad" (Br. 38) and that "the Senate is authorized to
investigate campaign practices to see if legislation is needed
in that area" (Br. 44). But he has contended that the
1056
Committee's investigation is unconstitutional because the
Committee is usurping Judicial power, conducting a criminal
trial and acting without valid legislative purpose.
We have previously demonstrated to the Court why these
assertions are unsuppor table. As already observed, it is well
settled that the Congress, as it has since the beginning of the
Nation, may investigate wrongdoing and maladministration by
executive officials pursuant to its cons ti tut ionsil responsibilities
to determine the need for legislation £uid inform the public of
executive misconduct. Perhaps the clearest expression of this
power is found in the Teapot Dome cases where the Supreme Court
sustained broad Senate inquiries into criminal conduct in the
executive branch. McGraln v. Daugherty, 273 U.S. 135 (1927) i
Sinclair v. United States, 279 U.S. 263 (1929).
We have already informed the Court of the relation of the
Committee's investigations to legislative recommendations now
under consideration. If, for example, it is concluded that
the President and his closest subordinates were Involved in
serious wrongdoing relating to the 1972 presidential campaign
and election, far-reaching legislative remedies may be necessary.
In such circumstance, the Committee might recommend that
presidential tenure be limited to one term and that the
participation of the president in the campaign to choose his
successor be drastically limited, or the Committee might
propose a radically new campaign financing system that would
severely curtail the amount of private monies that could be
contributed. It would be folly to proceed to the enactment of
such far-reaching legislation without knowing if the abuse has
been great enough to warrant It. But it would be equally
foolish to refrain from needed legislation if such serious abuse
of the election process did occur — what the Committee is
attempting to discover by this suit.
We have also pointed out that revelation of the extent of
10.57
-10-
executive wrongdoing to the public is necessary in order to gain
public support for any legislation the Committee may propose.
And we have noted that the Committee has a constitutional
responsibility to inform the public of the extent of the
corruption in the executive branch in connection with the most
recent presidential campaign and election. The Supreme Court,
in both Watkins v. United States, 35^ U.S. I78, 200, n.33 (1957)
and United States v. Rumely, 345 U.S. 4l, 43 (1953) has affirmed
the power and responsibility of Congress to inquire into and
publicize wrongdoing in the executive branch ajnd has, in fact,
proclaimed that the "informing function" of Congress "should be
preferred even to its legislative function." It is through the
"informing function" that public confidence inliie Integrity of
governmental processes can best be restored. The revelation of
governmental corruption also serves as a deterrent to future
malf easance ,_*/
^7 See also, Delaney v. United States, 199 F.2d 107, 114-15-
Tlst Cir. 1952) J Silverthorne v. United States, 400 F.2d 627,
633-34 (9th Cir. 1968); In Re: Application of United States
Senate Select Committee on Presidential Campaign Activities,
Misc. No. 70-73 (D.D.C. June 12, 1973), File Opin. at 17. See
further the discussion in section III, this memorandum.
The President has accused the Committee of attempting "to
expose for the sake of exposure," conduct he says is condemned
by Watkins . See 354 U.S. 178, 200. But that case indicates
that exposure for the sake of exposure is impermissible only
where private affairs are involved. As suggested by the
following passage from that opinion (at p. I87), it is perfectly
proper to expose corruption in the absence of immediate
legislative Intendment (which, of coxirse, the Committee has) when
the misconduct revealed is that of public officials in the
exeuctive branch:
". , . . The power of the Congress to conduct
investigations is inherent in the legislative process.
That power is broad. It encompasses inquiries ;'.•
concerning the administration of existing laws as
well as proposed or possibly needed statutes. TC
includes surveys of defects in our social, "economic
or political system for the purpose of enabling the
Congress to remedy them. It comprehends probes into
departments of the Federal Government to expose
corruption, inefficiency or waste. But, broad as is
this power of inquiry, it is not unlimited. There is
no general authority to expose the private affairs of
individuals without Justification in terms of the
functions of the Congress." (emphasis added)
34-966 O - 74 - pt. 1 - 68
1058
-u-
Were there any doubt that the Committee has been emd is
acting with valid legislative purpose in subpenaing and suing
the President, it has been removed by the Senate through
^. Res. 194. Sectioa 3-&f thi^-R«solAi4;ion^ states :
"The select committee and its members, by issuing
subpenas to the President and instituting and pursuing
litigation to achieve compliance with those subpenas,
were and are acting to determine the extent of possible
illegal. Improper, or unethical conduct in connection
with the Presidential campaign and election of 1972 by
officers or employees of the executive branch of the
United States Government or other persons. It is the
sense of the Senate that, in so doing, the select
committee and its members were and are engaged in the
furtherance of valid legislative purposes, to wit, a
determination of the need for and scope of corrective
legislation to safeguard the processes by which the
President of the United States is elected and, in that
connection, the informing of the public of the extent
of illegal, improper, or unethical activities that
occurred in connection with the Presidential campaign
and election of 1972 and the involvement of officers
or employees of the executive branch or others therein.
It is further the sense of the Senate that the
materials sovight by the committee's subpenas are of
vital importance in determining the extent of such
Involvement and in determining the need for and scope
of corrective legislation.
In view of this statement of approbation by the xinanimous
Senate, it is exceedingly difficult for defendant to continue
to assert that the Committee proceeds without valid legislative
purpose. It is even more diffic\ilt for him to overcome the
presumption that a legislative committee is acting with
legitimate legislative purpose. This presumption has been
repeatedly recognized by the Supreme Court (e.g., McGrain v.
Daugherty. supra, 273 U.S. at 178j Barenblatt v. United States.
supra, 360 U.S. at 133; Watkins v. United States, supra, 354 U.S.
at 200), and defendant has adduced no facts that would negate it.
1050
-12-
II. The Court Has the Power and Responsibility to Resolve
This Controversy
The Court of Appeals in Nixon v. Sirica ooncluded that the
"Federal Courts^have full power to decide^ the legal validity of
a presidential assertion of executive privilege in response to
evidentiary subpenas issued by a coordinate branch. The Court
held that the President is not, by virtue of his office, immune
from judicial process, for the "Constitution makes no mention
of special presidential immunities." (p. 17). The Court also
ruled that the President's mere assertion of privilege does
conclude the judiciary, for such privilege as he enjoys is
neither absolute nor unreviewable. The issue of executive
privilege is fully justiciable, for " A^Thenever a privilege is
asserted .... it is the courts that determine the validity
of the assertion and the scope of the privilege. " (p. 25).
These rulings, while made in the context of subpenas issued
by the grand jury, are fully applicable here. There is no
warrant in the Constitution for erecting a presidential immunity
from judicial process simply because the plaintiffs are a duly
authorized congressional committee and its members rather than
the Special Prosecutor representing the grand jury.^/ Nor is
there any basis for concluding that a presidential assertion
of privilege becomes unreviewable when made against the
legislature. The Supreme Court has stated that the principle
that "the public has a right to every man's evidence" is just
as applicable to legislative investigations as to judicial
V' As the Court stated in Nixon v. Sirica (p. 12), the fact
that the courts may not have physical power tt) enforce a
judgment against the President does not deprive them of
authority to pass upon the legal validity of a presidential
claim of privilege. Moreover, plaintiffs in this suit seek
only a declaratory judgment at this juncture so that the
question of judicial power to enforce a command against the
Chief Executive is not now before the Court.
1060
-13-
proceedings. United States v. Bryan, 339 U.S. 323, 331 (1950).
This right of the public would be wholly subverted if the
executive could, by its own say-so, disregard any and all
legislative inquiries^ Aa the Court of Appeals pointed out in
Nixon V. Sirica;
"If the claim of absolute privilege was
recognized, its mere invocation by the President
or his surrogates could deny access to all
documents in all the Executive departments to
all citizens and their representatives, including
Congress .... Support for this kind of mischief
simply cannot be spun from incantation of the
doctrine of separation of powers. "(p. 27).
(emphasis added)
As this quotation indicates, Nixon v. Sirica also makes
clear that the principle of separation of powers does not ■
preclude the courts from adjudicating a controversy between two
coordinate branches of government concerning an otherwise
justiciable issue of privilege. The coordinate branches
involved here are the executive and the legislative. Nixon v.
Sirica likewise involved a aantroversy between coordinate
branches — the President as a representative of the executive
branch and the Special Prosecutor as a representative of the
grand jury and hence the judicial branch. But, as there stated:
"/This circumstance/ does not make the task of
resolving the conflicting claims any less judicial
in nature. Throughout our history there have
frequently been conflicts between independent
organs of the federal government .... When such
conflicts arise in justiciable cases, our
constitutional system provides a means for
resolving them — one Supreme Court. "(p. 26). j^/
37 These statements are supported by the Supreme Court's analys
in Powell v. McCormick, 395 U.S. 486 (1969), which held that the
refusal of the House of Representatives to seat a member was
reviewable by the judiciary. Powe 1 1 states that, as a general
rule, the judiciary has the duty to decide otherwise justiciable
issues unless the Constitution contains a "textually demonstrable;
commitment" of that issue to a coordinate branch. 395 U.S. at 519
Since the Constitution contains no "textually demonstrable
commitment" to a coordinate branch of the issue of executive
privilege, the judiciary bears the responsibility for resolving
that issue.
1001
-14-
This ruling is equally applicable to the present dispute.
The teaching of Nixon v. Sirica — that the courts have
the responsibility to resolve otherwise justiciable controversies
between coordinate branches^ of- governrnerrt""-- is~"furty "confirmed
by precedents involving controversies between the executive
and the legislative. For example, in United States v. Lovett
328 U.S. 303 (1946), the Supreme Court decided that a congres-
sional effort to discharge designated individuals from govern-
ment employment by cutting off salary appropriations was a
constitutionally prohibited bill of attainder. In Myers v.
United States, 272 U.S. 52 (1926), the Court passed on the
President's constitutional power to remove a government employee
from office contrary to congressional statute. Congress'
constitutional authority to limit the President's removal power
was also at issue in Humphrey's Executor (Rathbun) v. United
States, 295 U.S. 602 (1935).*/
While these decisions fully confirm the Court's authority
and responsibility to resolve the legislative-executive
controversy involved here, the judiciary understandably might
*7 Other relevant Supreme Court cases in this vein include
the Pocket Veto Case, 279 U.S. 655 (1924), (validity of a
pocket veto by the President) ; United States v. Klein,
13 Wall. (80 U.S.) 128 (1871) (congressional effort to curtail
presidential pardon) ; Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) (presidential seizure of steel mills held
unconstitutional as invasion of Congress' legislative powers).
And recent decisions of this Court have reaffirmed that the
principle of separation of powers does not preclude the courts
from resolving conflicting claims of presidential and
congressional power. Kennedy v. Sampson, _F. Supp. (D.D.C., C.A.
No. 1583-72, August 15, 1973) (Senator's challenge to validity
of President's pocket veto); Williams v. Phillips. 360 F.Supp.
1363 (D.D.C., 1973) (Senatorial challenge to validity of
Presidential appointment of acting OEO director without Senate
confirmation) rLocal 2677, Government Employees v. Phillips,
358 F.Supp. 60 (D.D.C. 1973) (Presidential "phase-out" of OEO
not authorized by Congress) .
10(32
-15-
be reluctant to become continuously involved in legislative-
executive struggles over disclosure by the executive of
information to Congress. But decision of the present controversy
would not necessarily be a precedent for such continuing
involvement, for it is distinguished by several special features.
First, this controversy is fully ripened and the normal
processes of political accomodation between Congress and the
executive have been exhausted. The Committee's demand for the
materials it seeks has been approved by the entire Senate in
S.Res 194. Moreover, the public importance of the Committee's
efforts has also been acknowledged by the entire Congress
through the passage of Public Law 93-190. That statute not only
provides the Court with jurisdiction to hear the controversy
but empowers the Court to enter any "such judgement or decree...
as may be necessary or appropriate to enforce obedience" to the
subpenas involved here. Public Law 93-190 therefore represents
a determination by Congress, not vetoed by the President, that
the present controversy is fully justiciable and should be
resolved by the courts. It is thus plain that we
do not have here an ordinary controversy between the executive
and a congressional committee seeking information from it, but
one where the Senate through resolution and the full Congress
by statute have approved the maintenance of this suit. These
unique factors might work to diminish the precedential value of
a decision herein that this case is justiciable.
Another distinguishing factor of great significance is
that this case concerns a congressional investigation of allega-
tions of serious wrongdoing by high officials. As previously
1063
-16-
noted, such investigations are necessary not only to consider
the need for corrective legislation but also to inform the
public, provide a deterrent against future wrongdoing, and
-restor-e publi-e— eonfi-dence-in- the— ifl*eg*tty- -of -governmental
processes. These important functions would be subverted if
high executive officials could decline, on claim of privilege,
to produce needed information to Congress with the assurance
that the courts would refuse to resolve the controversy.
In normal cases, the Congress has means other than civil
litigation to vindicate its investigatory authority. The
Committee in an ordinary case could seek enforcement of its
subpena by the Senate Sergeant-at-Arms, or it could, pursuant
to 2 U.S.C.fl92, initiate contempt of Congress proceedings.
But where a high executive official is involved, particularly
the President, these usual methods of vindicating Congress'
authority are not appropriate. jV
Additional remedies are available to Congress where a
subordinate executive official resists investigation of a
program for which he is responsible. In such a case. Congress
might properly terminate authorization for the program or
reduce its funding on the premise that Congress should not
support programs if denied the information necessary to
"^ It wouid obviously be unseemly to send the Sergeant-at-Arms
to the White House to arrest the President and bring him before
the bar of the Senate or to initiate statutory contempt
procedures against him. We take it that the President would
agree with this assesanent for, in his Petition for Writ of
Mandamus (p. 5) in Nixon v. Sirica, he stated that "to refuse
to comply with /this Court's/ order of August 29, 1973, and
await further action /would be/ unnecessary and would only
delay resolution" of that case. Moreover, a criminal proceed-
ing against the President is a manifestly awkward vehicle for
determining the serious constitutional question here presented.
We note, although by no means accept, the assertion of defend-
ant President's counsel, that the President may not be crimi-
nally tried until he is impeached, a position that would, if
adopted , fareclose the criminal contempt procedures embodied in
2 U.S.C. i 192.
10G4
-17-
evaluate their content and implementation. But where, as here,
it is the President who resists disclosure and the investigation
does not relate to a particular governmental program, a feasible
remedy of this sort is not available.
Nor is impeachment an adequate remedy for the problem of
executive resistance to legislative investigations. Impeachment
is a lengthy, difficult process and is a drastic step posing
serious hazards to the well-being of the body politic. As this
Court stated in its decision in the Special Prosecutor's case,
impeachment "is not so designed that it can function as a
deterrent in any but the most excessive cases" and in
many situations "impeachment is not a reasonable solution."
(pp. 6,9) And, as the Court of Appeals ruled in Nixon v. Sirica,
"the Impeachment clause /does not/ imply immunity from routine
court processes." (p. 18) Obviously a court proceeding is a
far preferable means of resolving a dispute over the legal
validity of a claim of executive privilege.
Thus where legislative investigations of possible wrong-
doing by the President or high executive officials are involved,
other processes for vindicating congressional authority in the
face of executive recalcitrance are either not available or not
appropriate, and a judicial proceeding is the means best suited
for resolving the legal issue of executive privilege. Also,
as the Court of Appeals observed in Nixon v. Sirica (pp. 25-26,
n. 70) the judiciary passes on legislative assertions of
privilege in opposition to investigations or prosecutions
initiated by the executive. E.g. , Gravel v. United States,
408 U.S. 606 (1972); United States v. Brewster, 408 U.S. 501
(1972). It would thus be inequitable as well as unreasonable
to deny the legislative branch reciprocal access to the courts
lOl).")
-18-
to resolve the validity of asserted executive privileges. If
the courts were to refuse to decide such cases, the Congress
would be forced to choose between the emasculation of its power
to investigate executive wrorrgdoing or the use of provocative
sanctions against the President in a trial of strength that
would threaten near intolerable stress on the constitutional
fabric. But such dilemmas need not be faced under our system
of government where "it is the responsibility of /the
judiciary/ to act as the ultimate interpreter of the Constitu-
tion." Powell V. McCormack, 395 U.S. at 549.
The courts' responsibility in cases such as the present
also has a vital ameliorating function for, as the Supreme
Court has recently noted, the normal processes of political
accomodation between the executive and the legislative apparently
work only where the basic contours of their respective
constitutional powers are settled by the "neutral authority" of
the judiciary:
"The check-and-ba lance mechanism, buttressed by
unfettered debate in an open society with a free
press, has not encouraged abuses of power or
tolerated them long when they arose. This may
be explained in part because the third branch has
intervened with neutral authority. See, e.g. ,
United States v. Lovett, 328 U.S. 303 (1946)."
United States v. Brewster. 408 U.S. 501, 523.
(1972) (Berger, C. J.)V
The present controversy cries out for such intervention.
V Mr. Justice Jackson has written that " /s7ome arbiter is
almost indispensable when power .... is also balanced
between different branches, as the legislative and the
executive .... Each unit cannot be left to judge the
limits of its own power." Jackson, The Struggle For Judicial
Supremacy (1941) at p. 9, The wisdom of his observation
has a unique relevance to the present case.
106G
-19-
III. The President Is Not Privileged to Suppress the Evidence
Soueht ty the Committee
In Nixon v. Sirica, the Court of Aj peals held that
"application of Executive privilege depends on a weighing of
the public interest protected by the privilege against the
public Interests that would be served by disclosure In a
particular case." (p. 28) (footnote omitted) That test, of
course, was formulated in the context of a grand Jury subpena.
Where It is the Congress, the elected representatives of the
people, that seeks information, there are powerful arguments
against recognizing any constitutional privilege on the part
of the executive to suppress pertinent evidence. _' But
these arg\iments need not be addressed in this case for under
the balancing test articulated in Nixon v. Sirica the Committee
is entitled to the evidence sought by this litigation.
The public Interests in disclosure of the evidence sought
here are powerful and pervasive. Where wrongdoing in the
highest executive offices has possibly occurred, it is vital
that Congress be able to consider Intelligently the need for
corrective legislation to prevent its reoccurrence. As explainec
in McGrain v. Daugherty. 273 U.S. 135 (l927)--whlch sustained a
Senate investigation of the Justice Department's role in the
Teapot Dome scandal--the investigatory power is essential to the
law-making function, for without Information it Is impossible
to legislate wisely or effectively. 11/ And, as the Supreme
27 See Berger, Executive Privilege v. Congressional Inquiry,
12 U.C.L.A, L. Rev. 1044, 128« (1965). As pointed out in
Nixon V. Sirica, the failure of the Constitution to so much as
mention any executive privilege stands in stark contrast to the
specific, limited grant of privilege to the legislative. "This
silence cannot be ascribed to oversight." (p. 17)
^/ See also Sinclair v. United States, 279 U.S. 263 (1929),
1U(
)/
-20-
Court also pointed out In Watklns v. United States, 35^ U.S.
178 (1957), investigation of executive wrongdoing serves other
values as well:
"/There" xs—sj power of^the Congress- ta inquire
into and publicize corruption, maladministration
or inefficiency in agencies of the Government.
That was the only kind of activity described
by Woodrow Wilson in Congressional Government
where he wrote: 'The informing function of
Congress should be preferred even to its
legislative function.' Id., at 303. From
the earliest times in its history, the Congress
has assiduously performed an 'informing function'
of this nature." Y:,k U.S. at 200, n. 33. V
The above principles completely sustain the Committee's
efforts to obtain the information sought here. Created by
unanimous vote of the Senate, the Committee is charged with
investigating allegations of serious wrongdoing at the highest
executive levels in connection with the 1972 presidential
campaign and election and is instnacted to consider the need
for corrective legislation. The evidence which the Committee
seeks from defendant President is vital to the completion of
its work.
f7 These principles were recently reaffirmed by this Court
in In Re: Application of United States Senate Select Committee
on Presidential Campaign Activities, Misc. No. 70-73j June 12,
1973, File Opin. at 17. In Unit:-d States v. Rumely, 3^5 U.S.
hi (1953)5 the Supreme Court termed the congressional informing
function 'indispensable" and also quoted Woodrow Wilson with
approval:
"'It is the proper duty of a representative
body to look diligently into every affair
of government and to talk much about what
it sees. It is meant to be the eyes and
the voice, and to embody the wisdom and will
of its constituents. Unless Congress have
and use every means of acquainting itself
with the acts and the disposition of the
administrative agents of the government the
country must be helpless to learn how it
is being served; and unless Congress both
scrutinize these things and sift them by
every form of discussion, the country must
remain in embarassing, crippling ignorance
of the very affairs which it is most
important that it should understand and
direct. The informing function of Congress
should be preferred even to its legislative
function.' Wilson, Congressional Government,
303." Id. at 43.
1008
-21-
The Committee has received conflicting evidence as to the
extent of wrongdoing at the pinnacle of government, much of it
through testimony authorized by the President himself. As the
Statement of Material Facts As To Which There Is No Genuine
Issue demonstrates, there has been serious, potentially credible
evidence presented to the Committee tending to show that the
Chief Executive himself was engaged in wrongdoing. See paras.
9, 11-15. There has also been evidence tending to exonerate
him of such charges. And the extent of wrongdoing by other
officials is also the subject of sharply conflicting evidence
received by the Committee. The pertinent evidence already
obtained consists in considerable part of conflicting testimony
by witnesses regarding their conversations with the President.
The Committee would face difficult problems in resolving these
conflicts if its assessment of the credibility of the respective
witnesses were the sole basis of decision. But the Committee's
investigations have revealed the existence of documents and
tape recordings of Presidential conversations that it has now
subpenaed. This evidence, bearing directly on the matters in
dispute, would prove of Immense and perhaps decisive value in
determining the precise extent of malfeasance in the executive
branch.
An informed and accurate determination by the Committee of
the precise extent of executive wrongdoing would be of great
importance to Congress in deciding the need for and the form
of corrective legislation respecting the conduct of political
campaigns. Most particularly, it would aid in a determination
whether legislative regulation of presidential involvement in
political campaigns is necessary. Moreover, revelation of the
extent of the corruption in the executive branch would help
engender the public support needed for basic reforms in our
electoral system. If Presidential involvement were shown, there
might arise a strong public mandate for thoroughgoing reforms;
if no Presidential involvement were revealed, the public might
1069
-22-
be satisfied that lesser measures were adequate. The evidence
sought is also important in other ways to Congress' discharge
of its "informing function." So long as the executive is
allowed to resist Tull disclosure of evidence bearing on its
own wrongdoing, public confidence in the self-corrective
processes of government will remain at low ebb. Public
revelation of all Watergate facts is also needed to deter
repetition in the future of wrongdoing by governmental
officials. -/
It is not merely the plaintiff Committee which has
concluded that the evidence sought here is vital to Congress.
By the adoption of S. Res. 194, the entire Senate has unanimously
endorsed the Committee's efforts to obtain such evidence. The
Resolution states that the Senate "approves and ratifies the
committee's issuance" of the subpenas involved here, and also
"approves and ratifies" the Committee's institution of this
litigation to achieve compliance with these subpenas. The
Resolution further provides that:
"The select committee and its members, by
issuing subpenas to the President and
instituting and pursuing litigation to
achieve compliance with those subpenas,
were and are acting to determine the extent
of possible illegal, improper, or unethical
conduct in connection with the Presidential
campaign and election of 1972 by officers
or employees of the executive branch of the
United States Government or other persons.
It is the sense of the Senate that, in so
doing, the select committee and its members
were and are engaged in the furtherance of
valid legislative purposes, to wit, a
Y? Release of materials to the Special Prosecutor will not
necessarily fulfill an "informing fvinction" because there is
no assurance that such materials will be made available to
Congress or the public. Moreover, as noted by the Court of
Appeals in Nixon v. Sirica (p. 6), the integrity of Congress'
own processes is at stake here, for the conflicts in the
testimony of witnesses before the Committee raise a serious
question whether perjury has been committed. The evidence
sought by the Committee would be of vital importance in resolv-
ing that question.
1070
-23-
determlnation of the need for and scope of
corrective legislation to safeguard the
processes by which the President of the
United States is elected and, in that
connection, the informing of the public
of the extent of illegal, improper, or
MSoethTcal^actlvItres ^Ra'T'occurred in
connection with the Presidential campaign
and election of .1972 and the involvement
of officers or employees of the executive
branch or others therein. It is further
the sense of the Senate that the materials
sought by the committee's subpenas are
of vital importance in determining the
extent of such involvement and in deter-
mining the need for and scope of
corrective legislation." _^/
In addition, the entire Congress has enacted Public Law 93-190,
empowering the Committee to maintain and the Courts to entertain
litigation to enforce the subpenas previously Issued by "said
Committee to the President." Under the circumstances, the
statute represents a Congressional recognition of the public
importance of the materials sought; it is, moreover, certainly
arguable that a Congress that did not support the Committee's
efforts to achieve the materials subpenaed would not have
passed a statute that aids it in doing so. **/ In assessing the
public interests in disclosure, these actions by the elected
representatives of the people are, we submit, entitled to
great deference. Whatever legitimate Interest the executive
may have in withholding information must inevitably shrink in
the face of such action, for "where the President takes measures
incompatible with the expressed or Implied will of Congress, his
power is at its lowest ebb.. . ." Yoxingstown Sheet and Tube Co.
V. Sawyer, 3^3 U.S. 579, 637 (1952) (Jackson, J., concurring)
'T Senator Ervin, in his affidavit to this Court, (attached to
The Supplemental Memorandum In Support of Plaintiffs' Motion
For Summary Judgment) has also described the evidence sought
by the subpenas as "vital to the exercise of the Committee's
functions.' See para. (2).
Senate, of course, is supportive, as demonstrated by
**/ The Sena
FT Res. 194.
1071
-24-
( emphasis added). If, in the face of this Congressional action,
the courts were to hold that the executive may suppress evidence
relating to official wrongdoing, the power of the legislature
to- ijivesti-gate such wrongdoing would be. effectively- destroyed.
In these circumstances, we believe that the public interest
in disclosure to Congress is at least as great as the public
interest in disclosure to the Special Prosecutor. '^/
On the other hand, there is no public interest in permitting
the executive to suppress evidence that may relate to executive
wrongdoing. In normal circumstances, there is a legitimate
public interest in preserving the confidentiality of certain
executive deliberations in order to promote full amd frank
discussion. But where possible criminal conduct of the Presidait
or his close associates is involved, this interest in confiden-
tiality is overwhelmed by the public interest in preventing
the concealment of official wrongdoing.
As the Supreme Court observed in Gravel v. United States,
4o8 U.S. 606, 627 (1972), the "so-called executive privilege"
has never been applied to shield wrongdoing. It would be
plainly intolerable if a privilege to promote confidentiality
of executive communications were extended to the point of
permitting executive suppression of evidence bearing on criminal
wrongdoing by those in high public office. As pointed out by
the Court of Appeals in Nixon v. Sirica (p. 7)j quoting
Committee for Nuclear Responsibility, Inc. v. Seaborg, l49 U.S.
App. D.C. 385, 391, 463 F. 2d 788, 794 (1971), if such were the
law, an executive official "would have the power on his own
say so to cover up all evidence of fraud and corruption."
37 Indeed, we respectfully submit that the Interest of Congress
in obtaining evidence is weightier than that of the grand jury.
For however regrettable it might be if a few guilty individuals
were to go \inpunished for want of relevant evidence, there is
an even greater public interest in legislation, should it be
required, to prevent the subversion of high executive office in
the future. There is, moreover, a compelling public need for
total revelation of all the facts of the Watergate affair, a
need that, most probably, can only be met by Congress in the
exercise of its informing function."
1072
-25.
Coiinsel for the defendant President have already conceded
that he may not invoke executive privilege to cloaJc his own
possible wrongdoing. The Reply Brief filed on behalf of the
President in -thjra— Court in- the- Special Prosecutor's- case
asserts:
"It is, of course, true that to 'the extent
that the conversations /"between the President
ajid his aides_7 do not concern the legitimate
affairs of Government and the performance of
the official duties and responsibilities of
the President and his staff they are not
protected by executive privilege."
And other pleadings filed on behalf of the President in that
proceeding likewise appear to concede that executive privilege
may not be used to suppress evidence bearing on the President's
own wrongdoing. */ This concession is fully applicable here.
As noted, (p. 21 , infra) the Committee has already received
serious, potentially credible evidence which, if believed,
would tend to implicate the President In serious wrongdoing.
The President has in his possession additional evldence--tapes
and documents — that could be of crucial and perhaps decisive
value in resolving the conflicting evidence before the Committee
and developing the true facts. In these circxomstances, the
principle that an executive official may not Invoke privilege
to suppress evidence bearing on his own possible wrongdolng--
a principle already conceded by the President's co\msel--ls
directly applicable.
Nor do we perceive a public interest in permitting the
President to suppress evidence relating to possible wrongdoing
by his closest associates. On the one hand, the possibility
of inquiry into Illegal executive activity can have little, if
*/ See Misc. No. 47-73, Resp. Brief in 0pp. pp. 21-23. At the
oral arg\iment before this Court in the Special Prosecutor's case,
counsel for the President conceded that any executive privilege
which the President might enjoy would be limited to matters
relating to the performance of his official duties. Tr. p. l6.
Certainly, materials relating to criminal activities in con-
nection with the 1972 presidential campaign and election would
not concern "official duties."
1073
-26-
any, chilling effect on wholly lawful executive deliberations.
On the other hand, permitting executive officials to suppress
such evidence could invite abuses. A President is bound to his
dlose associates by strong ^les of' mutiial seif-interest as well
as friendship. Revelation of wrongdoing on their part would
almost certainly redound to the President's own political
disadvantage. In such a situation, a President with the best
of intentions may be all too prone to rationalize a claim of
privilege in terms of a supposed "public interest" In sup-
pression that is wholly Insubstantial. At worst, the executive
in such a situation could "on his own say so cover up all
evidence of fraud and corruption." Nixon v. Sirica, p. 30.
The courts have been fully aware of the potential hazards
in a privilege to suppress evidence relating to official mis-
conduct, and have accordingly refused to create such privileges.
As pointed out by Mr. Chief Justice Burger on behalf of the
Surpeme Court in United States v. Brewster, 4o8 U.S. 501, 521
(1972): "/T_7he laws of this country allow no place or employ-
ment as a sanctuary for crime... ." One of the earliest cases
involving a claim of executive privilege Ln the context of
charges of criminal wrongdoing by government officials was
United States v. Doheney and Fall (Sup. Ct. Dist. Col. I926),
a prosecution arising out of the Teapot Dome Scandal. The
Court there rejected a formal claim by the Secretary of the
Navy to suppress testimony concerning conversations between a
Navy captain and a defendant regarding defense installations.
The Court held that the testimony was relevant to the criminal
charges, and that the government's interests in confidentiality
could adequately be served by deleting the identity of a
foreign power referred to in the conversation. Stenographic
Record, 2-3, 2381-2384, 2392 et seq., reprinted in Morgan and
34-966 O- 74 - pt. 1 - 69
1074
-27-
Maguire, Cases and Materials on Evidence (3d ed. 1951) iiOS-^J-Og.
See also. Rosea v. ChlcaRO Board of Trade, 36 F.R.D. 684, 69O
(N.D. 111. 1965); Wood V. Breier. 54 F.R.D. 7, 12 (E.D, Wise.
1972). V
The absence of any public interest in permitting presi-
dential suppression of evidence relating to official misconduct
is reinforced in the present case by the President's refusal to
invoke executive privilege regarding testimony by executive
officials before the Committee and elsewhere "concerning
possible criminal conduct or discussions of possible criminal
conduct." **/ Our Statement of Material Pacts, paras. 20-24
^/ Cases arising under state law and considering analogous
executive privileges reach the same conclusion. Attorney General
V. Tufts, 239 Mass. 458, 49I-92, 132 N.E. 322, 326 (1921);
Metzler v. United States, 64 F. 2d 203 (9th Cir. 1933) (privilege
arising under state statute). The privilege enjoyed by the
judicial and legislative branches are likewise vulnerable when
criminality is involved. Thus the petit and grand jurors'
privilege — clearly the most significant in the workings of the
judicial process — must ylfeld in a case investigating criminal
wrongdoing by a juror. Clark v. United States, 289 U.S. 1
(1933); See also. United States v. Proctor & Gamble Co., 356
U.S. 667, bb4 (1958); United States v. Proctor & Gamble Co.,
25 F.R.D. 435 (D.N.J, i960). Even the legislator's privilege,
grounded constitutionally on the specific j.ajiguage of the
Speech and Debate Clause, does not offer a blanket shield to
charges of criminal misconduct. In Gravel v. United States, 4o8
U.S. 606 (1972), the Court held that Senator Gravel's assistant
could be compelled to testify about publication of the Pentagon
Papers, which the Senator himself had read on the Senate floor.
The Court went on to state that even the Senator could be
interrogated by a grand jury concerning the sources of infor-
mation he relied on in performing his legislative duties if
criminal conduct were indicated. 4o8 U.S. at 622 In United
States V. Brewster, 4o8 U.S. 50I (1972), a Senator's conviction
for making a floor speech in return for a bribe was upheld on
the ground that "/~t_7aking a bribe is, obviously, no part of
the legislative process or function." 4o8 U.S. at 526. In view
of these authorities, it is hardly tolerable for the executive,
who enjoys no constitutional grant of immunity, to assert a
privilege which is denied to legislators and the judicial
branch. Moreover, as remarked in our Memorandum Of Points And
Authorities In Support Of Motion For Summary Judgment (pp. 26-7)
comparable evidentiary privileges, such as the attorney-client
privilege, do not apply where there is evidence of criminal
conduct.
**/ The language is from the President's May 22, 1973^ state-
ment on Watergate. The President's action in this regard was
wholly consistent with historical practice. Whatever the record
may be in other areas, the executive apparently has not, prior
to this litigation, asserted any blanket privilege to thwart
congressional investigations into executive wrongdoing and, as
detailed in the Historical Appendix to our Memorajidum Of Points
And Authorities In Support Of Motion For Summary Judgment, has
frequently cooperated with legislative investigations into
executive malfeasance.
1075
-28-
details the President's statements regarding his disinclination
to invoke executive privilege and the extent of evidence
already given to the Committee and otherwise revealed regarding
the subject matters of the material under subpena at the time
the present motion for summary Judgment was filed. These
facts do not need repetition here, but we would point out that
since that date numerous tapes and documents covered by our
two subpenas have been turned over to the Court and the Special
Prosecutor, some in compliance with the grand Jury subpena,
some volvmtarily. For example, tapes of four conversations
subpenaed by the Committee have been released by the President
to the Court in compliance with the grand Jury subpena, along
with related documents, and certain White House files have now,
it appears, been opened to the Special Prosecutor, The Court has
listened to the four conversations Involved and ruled on whatever
"particularized claim: of privilege were asserted by the
President. See Order dated December 19, 1973. It is highly
significant that as to three conversations — those on March 13
and 21 — the President asserted no "particularized claim" of
executive privilege and raised no such claim as to the "Watergate"
portion of the September 15 tape. See the President's Analysis,
Index and Particularized Claims of Executive Privilege For
Subpoenaed Materials at pp. l4, 17, l8, 19 in Misc. No. 47-73.
As indicated by the Court of Appeals in Nixon v. Sirica,
these actions have great significajice for a Judicial assessment
of the public interest in disclosure of executive tapes and
documents relating to the same subject matter as the evidence
whose revelation has been permitted by the President:
1076
-29-
"Our conclusion that the general conf identi-'' .
ality privilege must recede before the grand
jury's showing of need, is established by the
unique circumstances that made this showing
possible. In his public statement of May 22,
1973, the President said: 'Executive privilege
will not be invoked as to any testimony con-
cerning possible criminal conduct or discussions
of possible criminal conduct, in the matters
presently under investigation, including the_
Watergate affair and the alleged cover-up.'- .
We think that this statement and its consequences
may properly be considered as at least one factor
in striking the balance in this case. Indeed,
it affects the weight we give to factors on
both sides of the scale. On the one hand, the
President's action presumably reflects a
judgment by him that the interest in the
confidentiality of White House discussions
in general is outweighed by such matters
as the public interest, stressed by the
Special Prosecutor, in the integrity of
the level of the Executive Branch closest
to the President, and the public interest
in the integrity of the electoral process —
an Interest stressed in such cases as Civil
Service Commission v. National Association
of Letter Carriers and United States v.
United Automobile Workers. . . .
"At the same time, the public testimony
given consequent to the President's decision
substantially diminishes the interest in
maintaining the confidentiality of conversations
pertinent to Watergate. The simple fact is
that the conversations are no longer confi-
dential. Where it is proper to testify about
oral conversations, taped recordings of those
conversations are admissible as probative axid
corroborative of the truth concerning the
testimony. There is no 'constitutional right
to rely on possible flaws in the /witness'^/
memory. * * * /^N_7o other argument can
justify exGludTng an accurate version of a
conversation that the /~witness_7 could
testify to from memory. ' In short, we see no
justification, on confidentiality grounds,
for depriving the grand jury of the best
evidence of the conversations available."
(p. 31-32) (footnotes omitted)
These considerations are directly controlling here, for the
President's May 22 statement related to testimony before the
plaintiff Committee just as much as to testimony before the
grand jury, cind, in fact, much of the testimony that resulted
from this statement was presented to the Committee, as the
1077
-30-
Court of Appeals noted in Nixon v. Sirica (p. 6). Hence tiie state-
ment represents a Presidential recognition of the public in tare A
in legislative access to evidence relating to official mis-
conduct. And J by the same token, the President's asserted
interests in confidentiality have been sharply eroded by the
disclosures that have already been made to the Committee and
elsewhere with his permission. As in Nixon v. Sirica, both of
these factors weigh strongly in favor of disclosures here.
Moreover, there are additional reasons in this case for
not allowing the President to pick and choose among the
evidence in this case to be disclosed. We Eubwlt that
it would be highly unfair to the Committee and the Congress,
as well as the public they represent, to permit the President to
toy with the investigatory process by withholding the best
evidence available on matters as to which he has already
permitted testimony. To paraphrase language from the decision
in Lopez v. United States, 373 U.S. 427, 439 (1963) relied upon
by the Court of Appeals in Nixon v. Sirica (p. 32):
"stripped to its essentials, /"the defendant
President ' s_7 argument amounts to saying
that he has a constitutional right to rely
on possible flaws in the agent's memory, or
to challenge the agent's credibility without
being beset by corroborating evidence that is
not susceptible of impeachment. For no
other argument can justify excluding an
accurate version of a conversation that
the agent could testify to from memory."
As Mr. Chief Justice Vinson stated, the basic principle
against permitting selective disclosure in the context of
testimony; "To uphold a claim of privilege in this case would
open the way to distortion of facts by permitting a witness to
select any stopping place in the testimony." Rogers v. United
States, 34o U.S. 367, 371 (1950). Accordingly, it has been the
settled policy of our law that one who, by selective disclosure,
breaches a confidence protected by a privilege is held to have
forfeited that privilege. */ This policy is fully applicable
here,
*/ See the discussion in our Memorandum Of Points And Authorltjes
In Support Of Motion For Summary Judgment at pp. 30-I.
1078
-31-
CONCLUSION
The foregoing discussion demonstrates that application to
this case of the balancing test enunciated in Nixon v. Sirica
fully vindicates Congress' right to the evidence sought by the
Committee. There is a strong public interest in effective
legislative investigation of executive wrongdoing. The
Committee has determined that the evidence it seeks here is
necessary for the effective discharge of its investigatory
and other legislative responsibilities, and that detenninatlon
has been specifically reaffirmed by a unanimous Senate. The
public importance of the controversy has been recognized by the
entire Congress through the enactment of P.L. 93-190, a law
that arguably would not have been passed had not the full
Congress been supportive of the Committee's efforts to obtain
the materials linder subpena. And the President has acknowledged
the public interest in disclosure to Congress by permitting
testimony and the revelation of evidence on the very matters
involved in the Committee's subpenas. These several consider-
ations combine to make for a "uniquely powerful showing" of
public Interest in disclosure. Nixon v. Sirica, p. 30
On the other hand, there is no public Interest in permitting
suppression of evidence relating to official misconduct. The
normal interest in confidentiality vanishes when it becomes a
cloak for possible wrongdoing, and it would be against the publk:
interest to recognize a privilege whereby executive officials
could suppress evidence relating to possible wrongdoing by
themselves or their closest associates. Moreover, by permitting
testimony and the disclosure of evidence relating to the very
matters on which the Committee now seeks tapes and documents,
the President has effectively dissipated whatever lingering
public interest in confidentiality there might otherwise be in
this case. To permit the President to pick and choose among the
evidence offered to the Committee, withholding the best, is not
1079
-32-
only wholly unjustified, but represents a serious disservice
to the legislature, the public, and to the integrity and
accuracy of the Investigatory process. The public interest
in this case calls overwhelmingly for disclosure.
Plaintiffs' motion for summary judgment should be granted.
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D.C.
of Counsel
Arthur S. Miller
Chief Consultant to
the Select Committee
of Counsel
nuel Dash
Chief Counsel
Fred D. Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Coxinsel
Ronald D. Rotxinda
Assistant Counsel
Donald S. Burris
Assistant Counsel
William T. Mayton
Assistant Counsel
United States Senate
Washington, D.C. 20510
Telephone Nijmber 225-0531
Attorneys for Plaintiffs
1080
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
Plaintiffs
CAMPAIGN ACTIVITIES, et al,^
FILED J*!/ <f ^974
JAMES r. DAVEY
CLERK
Civil Action
No. 1593-73
RICHARD M. NIXON,
individually and as President of the United
States
Defendant
AMENDMENT TO COMPLAINT
The Complaint herein, filed on August 9, 1973 , is hereby
amended, with leave of Courtj^Atd without objection of defendant,
as follows:
1. On page 4 of the Complaint, immediately preceding paragraph
10, the following paragraph is inserted:
"9a. The jurisdiction of this Court further rests
on Public Law 39-190, codified as 18 U.S.C.
s
1364, which became law on December 19, 1973,
and which grants this Court 'original
jurisdiction, without regard to the sum
or value of the matter in controversy, of
any civil action heretofore or hereafter
brought by the Senate Select Committee on
Presidential Campaign Activities ... to
enforce or secure a declaration concerning
the validity of any subpoena . . . heretofore
or hereafter issued by said Committee to the
President ... to procure the production
before the said Committee of any information,
documents, taped recordings, or other
materials relevant to matters the said
*/ Sirica, C. J.
1081
-2-
Committee is authorized to investigate, and
/this/ Committee shall have jurisdiction to
enter any such judgment or decree in any such
civil action as may be necessary or appropriate
to enforce obedience to any such subpoena or
order. ' This statute also establishes the
Select Committee's authority to sue in its
own name and in the name of the United States
and to prosecute this action by the
attorneys of its choice. A copy of P.L. 93-
190 is appended hereto and made a part of
this complaint by reference,
2. On page 7 of the Complaint, immediately preceding the
heading "Cause of Action," the following paragraph is inserted:
"18a. On November 7, 1973, the Senate passed Senate
Resolution 194, 93d Cong. 1st Sess., which
approved and ratified the Committee's actions
in subpenaing and suing the President and
stated that it is the sense of the Senate
that the Committee, in so doing, was and is
acting with valid legislative purposes and
seeking information vital to the fulfillment
of its legitimate legislative functions.
A copy of S.Res 194 is appended hereto and
made a part of this complaint by reference.'
Respectfully
complaint by refe:
tfully submitted,^
Fred D. Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
1082
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D. C.
Of Counsel
Arthur S. Miller
Chief Consultant to
the Select Committee
Of Counsel
Richard B. Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
Donald S. Burris
Assistant Counsel
William T. Mayton
Assistant Counsel
United States Senate
Washington, D. C. 20510
Telephone Number 225-0531
Attorneys for Plaintiffs
1083
PUCllCUW 93-190
^Jrictjj'thirfl (i:on5rcss of the Bnitcfl States of America
AT THE FISST SESSION .!
Beffin and held at the City of Washington on Wednesday, the third day of January,
one thousand nine hundred and seventy-three
an act
To confer jorlsdictlon'DpoD the district court of the United States of certain
dril Bctlom brought by the Senate Select Committee on Presidential Campaign
Actlvitiea, and for other purposea^
Be it enacted iy the Senate and Hcntte of Repregeniaiive* of th^
UiiHed Stai.es of America in Congr^n oitembled, That (a) the District
Court of the United States for the District of Columbia shall have
original jurisdiction, "without regard to the sum or value of the matter
in controversy, of any civil action heretofore or hereafter brought by
the Senate Select Committee on Presidential Campaign Activities,
which \ras created on February' 7, 1973, by Senate Resolution Num-
bered 60, to enforce or secure a declaration concerning the validity
of any subpoena or order heretofore or hereafter issued by said
Committee to the President or the Vice President or any other officer
of the United States or any officer or employee of any department or
agency of the United States to procure the production before the said
Committee of any information, documents, taped recording, or other
materials relevant to matters the said Committee is authorized to
investigate, and the said District Court shall have jurisdiction to enter
any such judgment or decree in any such civil action as may be neces-
sarv or appropriate to enforce obedience to aiiy sndi siibpoena or
order.
(b) The Senate Select Committee on Presidential Campaign Activi-
ties shall have authority to prosecute in its owii name or in the name
of the United States in the District Court of the United States for the
District of Columbia any civil action heretofore or hereafter brought
by s.aid Conmiitteo to enforce or secnre a declaration concerning the
validity of any subpoena or order heretofore or hereafter issued by
said Committee to the President or Vice President or any other officer
of the United States or any officer or employee of any department of
the United States to procure the production before the said Committee
of any information, documents, taped recordings, or other materials
relevant to the matters the Committee is authorized to investigate, and
pray the said District Court to enter such judgment or decree in said
civil action as may be necessary or appropriate to enforce any such
subpoena or order.
(c) The Senate Select Committee on Presidential Campaign Activi-
ties may be represented i)y such attorneys as it may designate in any
act ion prosecuted by said Committee under this Act.
Speaker of the House of Repreaentativee.
yico^resH^irt-of-Hu^J^intei^tJiHrait^ I
President of the Senate.\/l^
IjU^^i&y^X^
1084
93d congress
IST Session
S. RES, 194
m THE SENATE OF THE UNITED STATES "
November 2, 1973
Mr. Ervin (for hiniself, Mr. Baker, Mr. Gurnet, Mr. Tnouye, Mr. Montota,
Mr. Tai.waoce, and Mr. Weickkr) suhiuitfed the following resolution;
which was ordered to be placed on the calendar _
. ■ ;■ ■'::> !
NOVIMBER 7,1973
Considered and agreed fo
RESOLUTION
Relating to S. Res. 60.
' 1 Besolvcd, That—
2 Section 1. By S. Res. 60, Ninety-third Confess, first
3 session (1973), section 3 (a) (5), the Select Committee on
4 Presidential Campaign Activities was and is empowered to
5 Issue subpcnas 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 St^ites is, as recognized hy 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
1085
2
1 the sense of the Senate that the select committee's issuance
2 on July 23, 1973, of two siibpenas duces tecum to the Pres-
3 ident for the production of tapes and other materials was
4 andT^s fully authorized by S. Ees. 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 sinc« that time, in both the
12 district court and the United States Coiirt 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. Ees. 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 Htigation.
24 Sec. 3. The select committee and its members, by issuing
25 subpenas to the President and instituting and pursuing litiga-
1086
3
1 tion to achieve coinplinnce with those suhpenas, were and
2 are acting to determine the extent of possible illegal, im-
3 proper, or unethical conduct in connection with the Pres-
4 idcntial campaign and election of 1972 by ofhc^rs 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 nnd 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 unethicKil activities that occurred in connection with the
14 Presidential campaign and election of 1972 and the involve-
15 ment of ofTiccrs 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.
1087
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,
Defendant
Civil Action
No. 1593-73
CERTIFICATE OF SERVICE
I, James Hamilton, do hereby certify that on January 7>
IS'fi, I served copies of the attached Plaintiffs' Memorandum On
Remand and Amendment to Complaint upon defendant President by
having said copies hand-delivered to the offices of his counsel
in the Executive Office Building, Pennsylvania Avenue,
Washington, D, C. '
James Hamilton
Assistant Chief Counsel
United States Senate
Washington, D. C. 20510
Attorney for Plaintiffs
1088
THE UNITED STATES DISTRICT C6URT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al..
Plaintiffs
V.
UCHARD M. NIXON, individually and as
President of the United States, ) Civil Action
No. 1593-73
Defendant
ORDER
This matter having come before the Court on plaintiffs'
request for expedited handling of the issues herein, it is
hereby this day of January, 197^>
ORDERED that:
(1) Plaintiffs shall file their Amendment To Complaint and
Memorandum On Remand on or by Monday, January 7, 197^-
(2) Defendant shall file his Answer to the Amendment To
Complaint and his response to Plaintiffs' Memorandum On Remand
on or by Thursday, January 17, 197^.
John J. Sirica, Chief Judge
1089
FILED 1/10/74
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. 1593-73
ORDER
This matter having come before the Court on
plaintiffs' request for expedited handling of the issues
herein, it is hereby
ORDERED that plaintiffs shall file their
Amendment to the Complaint and Memorandum on Remand on
or by January 7, 1974; and it is further
ORDERED that defendant shall file his Answer
to the Amendment to the Complaint and his response to
plaintiffs' Memorandum on Remand on or by January 17, 1974,
said dates having been set by Chief Judge Sirica prior to
transfer of the file to the undersigned.
UNITED STATES DISTRICT JUDGE
January 9, 1974.
34-966 O - 74 - pt. 1 - 70
1090
January 9^ 197^
BY KMID
The Hcaorabla Gerhaxd A. Gesell
imited States District Judga
United States Court House
Constituticaa Avenue and
Jdim Marshall Place^ ^.W.
VaaMsgtOQy. I)»C«
Deaf Judge Gesell:
The Cotrrt has requested that we supply it with the relevant
legislative history of Puhlic Law 93-190. This history is attached
along with that of Senate Resoliitlon 19^, 93d Cong,, 1st Sess.,
(Zlovsaaber 7> 1973 )• In order to assist the Court in \inderstanding
the progreaaion of the biH and resolution throao^h Congress, we
present "below a brief guide to the legLslative history of both
provlsiona.
Both 3. Res. 19^ and the original version of P.L. 93-190 were
introduced in the Senate aa. noven^er 2, 1973 (see Tab A)^ The
initial jtrrisdictional bill, i/hich was desigaated S, 2&il and '.s
attached at Tab B, was far broader than the bill that eventtially
becaae law. The first bill trauld have provided Jurisdiction for
suits to enforce congressional subpenas issued to the President
or other offlcera and employees of the executive branch by either
House of Ccji^ess^ any caaanittee or subcccmittee of either House
or any Joint cccmittee of Confess. The bill also would have
provided staisilng for the appropriate plaintiffs and allowed then
to prosecute their actions by the attorneys of their choice (as
does the present statute respecting the Select Cocnittee).
The bill was accoapanied by oral and written statenents by
Senator Ervin (Tab A). Senator Ervin xnade clear that the statute,
despite its bread scope, was introduced in response to Judge
Sirica's ruling of October 17, 1973s "t^sat disnicsed this suit for
laclc of Jurisdiction. He enj^asized that a civil renedy to resolve
-1-
1091
Judge Gerhard A, Gesell -2- January 9, I97U
the contaforeray was needed becaxise it would not be appropriate to
initiate criainal contempt poroceedings or use the Senate's seLf-
help procedures against the President. At Senator Ervin's request,
the bill was placed on the calendar for consideration on Tuesday,
Hoveciber 6»
S, Res* I9U vas also accccapaoied by oral and -written statements
by Senator Ervin (Tab A), It is apparent fracx his stateosats-^as
froa the text aS the resolnticai— that its purpose was to aid in re»
solving certain issues raised in this law sxxit, i.e«, the scope or
the Casaitted'a authority to subpena and sua the President and ii>>
vestigata wrongdoing in the execotiTe branch* The resolution vas
also placed on the cAjenriar for considei^tion <m Tuesday, ITcrrsaber 6«
The r^soltctioa was sictually called ttp fear consideration on
Wednesday, Hoveaber 7 (see Tab C)» l^>on its reading, it was unaoi-
todusly passed by the Seiatte,
S, 26h2. was introduced ia the Hoose oo ltoreafi>er 8, 1973*. by
Congressjaaa Preyer and others* Kie bill was iiaaediately referred
to the House CcoKLttee on the Judiciary (Tab D),
On HoTOBber 9» a "substitute aaendafint" to S, 26^*1, which later
became P.L. 93-190» was introduced by Senator Ervln in the Senate
(see Tab E), T2ie substitute aaiendment, which, of course, was United
to sulta brought by the Select Cccaaittee, jassed the Senate that
saaie day, Ths new bill was su2>stituted by Senator Ervla on the sug-
gestion of Senator Hnislca,, :Ao viewed the initial bill as overbroad.
Eruska, however, opposed even the substitute amendneat, claiming
that it would cast the judicial branch "in the role of vaapire or
referee between CoBgress and the executive in disputes aver the pro-
doctioa of docunents and evidence **. S. 20131. Senator ErusJa, did
express hia view that narrowing the bill to deal with the unique .
controTsrsy presented by the Select Conaaittee's subpeneia was a
•*prudent stap", S. 20131.
In several respects, the bill as passed is broader than the
original bill . ^k)st iapcrtantly, it provides that the District-
Court "shall have jurisdictiaa to eater any such Judgaient or decree
in any such civil action as nay be necessary or appropriate to ei>-
force obedience to any . • . siibpogra" issuJed by the CocaEiittee,
The Senate substitute azjendaeat was considafed and passed by
the House on DeceESier 3 (Tab F), after having been presented by
Conors senaa Kaatexaaeier. The substitute eiaendment had previously
been reported out of the House Ccnmittee on the Judiciary without
dissent oa Bavendjer 26 (Tab g). Cn. the floor Congresrsman Rall^back
recognized that prcrrisicn for a civil reatedy was necessary because
other Eethods of enforcing a stibpena against the President would be
'HiaseeKly*'. H. 10^35, Jfr. Kastenoeier on the floor and the Judi-
ciary Caaaittee Report both stated that the bill 'Hd.ll leave unre-
solved any issue of justiciability". This la, of course, correct.
1092
Jud^e Gerhard A. Gesell -3- January 9, 197^
for only this Court can determine if thic controversy is justiciable.
Bxtt this statute, which provides that the Court has jurisdiction "to
enter any . . • jiidgment or decree . , . necessary or approptriate to
enforce obedience to any fCasmLtteeJ subpoena" does serve as a con-
gressional expression of opiiaion that this controversy is Judiciable,
especially when juxtaposed with the President's contention that the
case is not JxLsticiable because he is immune frcn Court process. It
is plain frad the statements of the bill's supporters — Ervin,
Kastenmeier, Eailsback, Rodino— and its opponeirfcs~Hrusl£a, McClory,
Brooks— that they all recogniz'^ that iiaplici.t in the bill's passage
was the view that this Court should decide the present controversy.
Also significant is the remark of Congressman Rodino who, in
suppctrt of the bill, observed that "conclusion of the Watergate
investigation is critical to the restoration of our people's confi-
dence in the Federal Government". H. 10U86. This statement is but
another affirmation of the impartanca of Congress' "informing
function", a subject dealt with in depth in our memoranduBU
Sincerely yours.
Senate Select Ccsmmittea on
Presidential Campaign Activities
Attorney for Plaintiffs
JH:slk
Enclosures
cc : J. Fred Buzhardt (w/enc . )
1093
November 2, 197S
CONGRESSIONAL RECORD — SENATE
S 19787
to me^at even tuose »ho al(J admit
begrucffehwly that/thls Is the kind of man
we oDgbt wj have, would say that we
should get orTKQh the Job.
Mr. l-ONO/i ^^euld hope so.
Ipgai. Improper or unethical actlvl. Uiftt
occurred In connection with the presidential
campaign and election oX 1972 and the In-
volvement of offlcers or employees of t^ ex-
ecutive branch or ot^e^8 therein. It Is fur-
ther the ficnse of the Senate that the mate-
rials sought by the Committee's subpenas are
I ask unanimous consent to have print-
ed In the Record a statement prepared
by me explaining the nature and purpose
of the resolution, for the Informatloo ol
the Senate.
The PRESIDING OFFICER. Without
<jirvTA-rTr r/r-^^irrr-T^vi 1 oj ci'irRMiq ' °' "'^' '™P"'^'»"« ^ determining the ei- obJccUon. It Is SO Ordered.
SENATE HE^jOI-UTION 194— SUBf.113- lent of such involvement and In determlnlne '' K„„„r«„ „. <:,„„
SION OP A RESOLUTION RELAT-
ING TO SENATE RESOLUTION 60
(Ordered to be placed on tlie calen-
dar.)
Mr. EKVIN. Mr. President, I send to
the desk a resolution and ask for Ita
Immediate coniiderallon. I do tills In be-
half o{ all the members of the Senate
Select Cominlttce on Presidential Cam-
pjlgn Acthitles.
The assistant legislative clerk read the
resolution by lltle.
The resoUUlon (S. Res. 194) Is as
follows:
Resolved That,
Sectiok I. By S. Res. 60, 93d Cong, 1st
Sess. (1973), Sec. 3(a) (5), the Select Com-
mittee on Presidential Campaign Activities
was and Is empowered Xo Issue subpenas for
documents, tapes and other matcrl.ils to any
ofncer of the oyecutlve branch of the United
States Government. In view of the fact that
the President of the United States Is, a^
recognized by S- Res. 60. an omcer of the
United States, and was a candidate for the
offlce of President tn 1972 and Is there-
_ fore a person whose acllvUle« the Select
Committee Is authorized by S. Res. 60 to In-
vestigate, It la the sense of the Senate that
the Select Committee's Issuance on July 23,
1973, of two subpenas duces tecum to the
President for the production of tapes and
other materials was and is fully authort-'ed
by S. Res.- 60. Moreover, the Senate hereby
approves and ratifies the Committee's Issu- '
ance of there subpenas.
Sec. 2. On August fl, 1973. the Select
Committee and Its members Instituted suit
against the President of the United States
In the United States District Court for the
Dlsrlct of Colunilala to achieve cornpll.mce
with the two subucnris referenced In St-c-
t'.->n 1 .-ibove. and since that time, in both
the District Court and the Unllcrt S'.atcs
C<.urt uf -Appeals for the District of Columbia
Cir.-ult, hi\e actively pursued this litiga-
tion. It Is the sense of the Senate that the
inltutlon and pursuit cf this litigation by
the Select Committee and Its members was
r..id Is fully authorized by appll-able custom
a-id I.IA-, InrUiding Ihe provisions of S. Res.
262. 701h Cong. 1st Sess. (19281. In view of
the entirely discretionary provisions of Sec-
tion 3 (al (6) of S Res CO. It is further Ihe
sense of the Senate that the Initiation of
this lawsuit did not require the prior ap-
proval of the Senate. Moreover, the Senate
hereby a_->->rovcs and ratifies the actions of
tl.e r, ■ t CTn.mll Ice In In: tlluttng and pur-
suing the a'ore-.id litigation.
Sec. 3. The Select Committee and Its
members, by Issuing subpcnas to the Presi-
dent and 'InstltuthDg and pursuing litiga-
tion to achieve compliance with those sub-
pcnas, were and are acting to determine the
extent of possible Illegal. Improper or un-
ethical conduct In connection with the pres-
I'tefitlal campaign and election of 1872 by
o^cors or employees of the eitecutlve brancli
of the United States Goremraent or otheE-
ptr=r,ns. It is the sense of the Senate that. In
so doing, the Selt^t Committee and Its mem-
bers were and are engaged In the further-
ance of valid legislation purposes, to writ, a
determln.^tlon of the need for and scope of
corrertlve legislation to safcguarxl the proc-
esses by -j.hlr-h the President of the United
States is elocu-d and. In that connection the
Informing of the public of the extent of U-
determlnlng
the need for and scope of eorrectlve legisla-
tion.
The PHESnJING OFFICER. Is there
objection to the tinanlmous-conscnt re-
quest? . *
Mr. GRIFFIN. I would have to reserve
the right to object because I do not know
what the resolution Is or Its fundamental
purpose, -
Mr. ERVIN. Mr. President, the resolu-
tion Is to make It plain that the Senate
Select Committee In bringing a stiit In
the District Court of the United States
to require access to certain specified tapes
Is acting in behalf of the Senate.
Mr. GRIFFIN. May I Inquire of the
distingTilshed Senator from North Caro-
lina, does he really expect the matter to
be considered and voted on this morn-
ing, or Is it acceptable to the Senator
Mr. • ERVIN. I would ask unanimous
consent that the resolution be placed
upon the calendar, and" that it be called
up Tuesday morning, if that does not
interfere with the program.
Mr. GRIFFIN. I suppose It would be
called up In the normal course at that
time, would It not, it we could have lt_
calljd up under the same circumstances.
The Senate Is not coming in on Tuesday,
necessarily. - ■ -
Mr. ROBERT C. BYRD. Mr. President.
I was going to reserve the right to object
simply to state that It Is not certain that
the Senate will be In on Tuesday. The
Senate ttill come in on Monday.
Mr. ERVIN. 'n-iere may be some ob-
jection to considering it Monday. I ask
unanimous consent
Mr. GRIFFIN. But to have it go on the
calendar
Mr. ERVIN. I ask unanimous consent
that the resolution be placed upon the
c.ilendar. r<nd that it not be called up be-
fore Tuesday morning.
The PRESlDtNG OFFICER. Is there
objection?
Mr. GRIFPIN.' Mr. President, I shall
not object to that. I realize that many
of my colleagues, perhaps, will think that
this matter should go to a committtee.
and we should have some hearings on It,
and that would be a preferable way to
legislate. But. on the other hand, the
Senator from North Carolina, under the
parliamentary situation. Is clearly able,
through this procedure, to ask unani-
mous consent for Immediate considera-
tion to get it to the calendar without It
going to a committee, and If he wants to
take that route he Is certainly within his
rights, and the only thing we are doing
here by imanlmous consent Is to avoid
the parliamentary steps that would be
necessary. - •
' The PRESIDING OFFICER. Without
objection, it Is so ordered.
Mr. ERVIN. I make this request be-
SrATEMEWT or Senatok Eavuf
The Resolution before the Senate Is In-
t#nded to aid In resolving certain questions
*hat have been raised concerning the Select
Committee's actions.
It states that It Is the sense of the Senate
that the Committee, under 3. Res. 60. had
and has authority to subpena the President,
who Is an "offlcar" of the United States amen-
able to subpena under Sec. 3(a)(5) of 3.
R^s. 60. to obtain certain Information relat-
ing to poGslble Ifnproper. Illegal, or unethical
conduct In connection with his candidacy for
the Presidency In 1972. It further states that
the Senate approves and ratifies the Com-
mittee's action In regard to Its subpenas.
It states It Is the sense of the Senate that
the Committee and Its members were and are
fully empowered by applicable custom and
law. Including 3. Res. 262, 70th Cong., let
Sess. (1923), to sue to enforce the Commit-
tee's subpenas and that the Senate approve
and ratifies the Initiation and prosecution
of this litigation. ' -
Finally, It states that It Is the sense of the
Senate that the Committee and its mem-
bers. In subpenalng and bringing a civil ac-
tion to enforce Its subpenas, were and are
acting In furtherance of valid legislative pur-
poses— a determination of the need for and ■
scope of corrective legislation relating to
presidential campaigns and. tn that regard,
the revelation to the public of the extent of
corruption In the 1972 presidential campaign
and election. It also states that It Is the sense
of the Senate that the Infcrmatlon sought !s
vital to the performance of the Committee's
functlolis.- '-.-..'...
1'hp memlsers of the Committee are fully
confident that they have complete authority
to pursue the activities referred to In this
Resolution, and are acting In this request
with valid legislative purocses. The Resolu-
tion, however, removes all doubtSL
INPRODUCTION OP S. 2641 A
BUX. TO CONFER JURISDICTION
UPON THE DISTRICT COURTS
OVER CERTAIN CIVIL ACTIONS
BROUGHT BY CONGRESS
Mr, ERVIN. I send forward a bill and
ask for Its immediate consideration. I
might state that this bill Is Introduced
In behalf of every member of the Senate
Select Committee on Presidential Cam-
paign Activities.
The PRESIDING OFFICER. The btU
will be stated by title.
The assistant legislative clerk read as
follows: . - '
A bin (S. 2641) to confer Jurisdiction upon
the District Courts of the United States. over
certain civil actions brought by the Congress,
and for other purposes.
Mr. ERVXN. The purpose of the bill Is
to make clear that the US. District Court
for the District of Columbia will have
Jurisdiction of suits brought by author-
ized congressional committees to enforce
subpenas. The necessity tor It Is oc-
casioned by the fact that Judge Sirica,
. - ^_ under his ruling on the 17th of this
cause time Is of the essence. A suit that, month In a suit brought by the select
this resolution might possibly affect Is committee at the Instance of all the
now pending, and may come up any day members of the select committee to en-
m the circuit court. . force subpenas which we had Issued to
1094
S 19788
JONGRESSIONAL RECORD — SEI FE
November g, 1973
the President callinK for the production
of Upes for Septciiibrr 15. 1972; Febru-
ary 2», 1973: March 13. 1973: and
March 21. 1973. held that the- District
(•o\irt of the District of Columbia had no -
iurifdlctlon to pass upon the merits or
"(Umerits of the subrcna. and he pointed
(Ut the foci that the committee had not
I jrsued either of the two remedies that
vould ordlnarUy have been available In
this connection. One of these remedies la
to seek to prosecute In the criminaj
rtiurts of the district for contempt of
the Senate the person who refused to
cbej- the subpena. - '
Manifestly, the committee did not
think It would be ajjproprlate to try to
prosecute the President of the United
rotates in the courts for contempt of the
::^iiate, and therefore did not make a
r(>commendatlon to that effect. The other
available remedy Is to seek to bring be-
f vire the Senate Itself for punishment the
o.Tcndlng party.
We did not think that this would be
an appropriate remedy.
Tlie purpose of this bill Is to make
cl?ar that the District Court of the Dis-
trict of Columbia shall have jurisdiction
of a civil action to enforce a subpena di-
rected to the Preiident, the "Vice Presi-
dent, or any other ofBcer of the Federal
Gdvemmcnt, by a congressional com-
mit tee where the committee Is seeking
to obtain Information which Is relevant
to an Investigation the committee Is au-
thorized to make.
I sincerely hope that when this mat-
: r Is considered on its merits, every
:.!ember of the Senate and every Mem-
ber of the Congress who thinks it Is time
for the Congress of the United .Slates
to quit playing second fiddle to the White
House will support this bill.
I ask unanimous consent that the bill
he placed upon the calendar, and that it
not be called up for confidcralion prior
to Tuesday of next week.
The PRESIDING OFUCER (Mr. Kkn-
MDY). Is tliere objection to the bill bc-
ntf, placed on the calendar, and not con-
.-iilered ln'fore Tuesday? The Chair hears
none, and It Is so ordered.
Mr. EHVIN. Mr. President. I also ask
unanimous consent to have printed In
the Record a statement prepared by me
e.vplaininu the nature and purpose of the
bill, for the information of Senators.
The PRESIDING OhTICER. Without
objection. It Is so ordered.
SrAfEMFNT Bt Si.NAToa Euvuf
Th« bill before the Senate responds to
Juilge Sirica's ruling on October 17 thRt the
District Court has no Jurisdiction to hcAP
the Select Committee's suit seeking enforce-
ment of Its two siibpenas. The Committee
believes that the Court has Jurisdiction In
Its ca-ie and that the Committee would even-
'.ii.iUy prcvull on itppcat. but this bill re-
moves .-»ny doubt that Its suit is properly
hcfore the Court. I'hls bill will also permit
the C'. r.mlttee to resolve the Jurisdictional
1- sue m .-e promptly thaa It tbe matter wer«
left soIe;> lolltlEotlon.
nut the '>U1 has a broader usefulness t>e-
cau^e It will allow suit against any odlcer or
employee of the executive branch to ter.t the
validity of ^ ConKres; Icmul subpena. The bill
[•ruvldes a nonexclusive remedy. Other reme-
dies available to the Con^ei.3 to enforce Its
suhpena-s are Its Implied self-help procedures
and the fit.atutory contempt power, but tii»
use of these processes may be Inappropriate,
unseemly, or nonclTlcacIoua where executive
ofll'ers are Involved. Moreover, a civil suit
niny l>e a qul;Vcr way of enforcing subpen-M
than either of these other two process**. t7s«
of s-lf-help procedures and the statutory
contempt power can result Id ft court deter-
mln-itloD of the validity of ft Con^resslonftl
subpcnft. so there Is nothing novel In turn-
ing over the question of validity to the
courts.
The but applies to suits seeking to enforcv
subpenas for "Information, documents and
other materials." The tapes and document*
the Committee scelca wuvild be Co-, ered. Tbt
use of the phrase "Information, dorumenls
sod othrr materials" indicates that It Is not
necessary that the subpenas seeK evidence
that would be ad'.lssable In ft Judlcl&l pro-
ceeding. The bill Is tlrr^ited to subpenas to'
officers and employee* of the executive branch
and docs not apply to subpenas to privat*
Individuals. . . '■ ' •-
The bill Is Jurisdictional; It deals wlth'the
right or the District Court for tbe District of
Columbia to hear suits to enforce subpenas
ftgalnst executive omclals and In no way
touches on the merits of these suits.
"The term "any committee* Is u.sed In the
bill to deinoustrate that It applies to select -
and special committees, as well as standing
committees. - .
The bill also provides that the Houses and
their Comrr.ltTees have atindtng to prosecute
a suit of this type.
And tbe bill provides that tbe Houses and
their commltt«2S may employ attorneys of
their choice to prosecute tbelr litigations,
thus making plain that the provisions of 28
U.SC. it6ie-SlS. which provide that suits
on behalf of tlie United States shall be
brought and prcsecuted by the Attorney Gen-
eral and his subordinates, are Inapplicable
to lltltjatlon Initiated under this bllL
It Is anticipated that this section will be
seldom us^. In most cases where the Con-
gress seeks Information from the executive
branch, any dispute can be rcsoI\(-d by the
normal proce .s:s of polltlc.il accommodation.
Mr. GHIFITN, Mr. Picldcnt. I merely
want to add. following that last unani-
mous-consent ncrccinent. th:it the s.ime
exrl-ination In terms of the rcspoasibiU-
ty of tl^e ]e;idi-r.^lilps on tills ^ide t\oiild
.'ip.-ily to the bill as to the resolution
wlikh the Senator from North Carolina
olTc red earlier.
I .vce no paiticular reason for having
liim present It and ha've It objected to
today, and then come back In on Mon-
day, which he could do, have It offered,
and then have It objected to again. In
which case it would go on the calendar
automatically under our rules.
He has asked unanimous consent to
bypass those procedural steps and have It
go right to the calendar rather than to
cornmitteee, and it seems to me that
the rights of Senators are protected to
the same degree as they would be other-
wise.
Mr. KRVIN. I thank the Senator from
Michigan,
I would point out that he has reserved,
on behalf of any Member of the Senate,
the right to make a motion; to refer the
resolution or the bill when a motion to
call up either of them Is made.
Mr. GRIFFIN. I thank the Senator.
there will now be a period for the
transaction of routine morning business
of not to exceed 30 minutes, with state-
ments therein Iimlt<^d to 3 minutes.
QUORUM CALL
Mr. ROBERT C. B'VTID. Mr. President,
T suggest the absence of a quorum.
The PRESIDING OtTICER (Mr. Kca-
NEDY) . The clerk wUl c?ll the roll. ■
, The legislative clerk proceded to csU
the rolL -
Mr, ERVIN. Mr. President, I ask unan--
Imous consent that the order for the
quorum call be rescinded*
The PRESIDING OI-TICER (Mr.
NuNN). Without objection. It Is so
ordered.
IRANSAenON OP ROUriNB
MORNING BUSINESS
The PRESIDING OFFICER <Mr.
KiKfreav). Under the previous order.
APPOINTMENT OP A SPECIAI.
PROSECUTOR
Mr. ERVIN. Mr. President, when" the
nomination of Elliot Richardson to be
Attorney General of the United States
came up before the Committee on the .
Judiciary, Mr. Richardson made a spe-
cific agreement with the Senate Judiciary
Committee. As I understand it, Mr. Rich-
ardson assured the Judiciary Com.-nittee
that he had been authorized by the Presi-
dent to appoint a special prosecutor to
have charge of the prosecution of crim-
inal actions arising out of that unhappy
series of events known collectively as the
Watergate affair. As I understand it, Mr.
Richardson's agreement with the com-
mittee pledged that the special prosecu-
tor would not be discharged except for
gross improprieties.
Pursuant to that agreement, Mr. Rich-
ardson was confirmed as Attorney Gen-
eral of the United Stales. He appointed
Archih:\ld Cox, an outstanding teacher
of law, who had served with rare dis-
tinction as Solicitor General of the
United States, to act as special prose-
cutor.
From such Information as I have on
the subject. Mr. Cox was summarily dis-
charsed. not for gross improprieties, but
simply because he miderlook to perform
his duty as special prosecutor in a cou-
rageous and Intelligent manner.
I have grave misgivings about taking
any power out of the hands of the execu-
tive department of Government, but
there Is an old proverb which says, "If
you fool me one time. It Is your fault, but
if you fOol me Uie second time, it Is
mine." ', '
Now, we are assured that Mr. JaworskI,
who Is a most eminent lawyer and a fine
gentleman, will have independence. We
were given the same assurance In respect
to Mr. Cox. No speflal prosecutor can
truly enjoy Indcpend-nce In the dis-
charge of his duties if he is subject to
removal by either the. Department " of
Justice or the White House.
I am not concerned by the argument
that an effort to obtain congressional
action to Insure the Independence of a
special prosecutor will delay matters.
Tlie Department of Justice has had
Jurisdiction of the Watergate affair since
the morning of the 17th of June 1973.
During that time, justice has been travel-
ing on leaden feet.
1095
931 . CONGRESS
A£L_ Session
^«
(NaTV.--FnriB «U hlMn\ lines ei<!rpt
those pnrvldftj fo>r the Jatc. nam*
ber. &nd rrfcrvne* of bUt)
IN THE SENATE OF THE UNITED STATES
B
Mr.
KKVIH of North Carolina
introduced the following bill ; which was read twice and referred to the Committee on
A BILL
To confer jurisiiction upon the DlstJ'ict Courts of the United
States over certain civil actions brouj^ht by the Congress, and
for other purposes,
^ ^ (In*<rt tiUe of bill here)
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, that (a) Chapter 85 of Title 23, United
States Code, is amenied by adding at the end thereof the following
new section:
"§ 1364. Congressional actions.
"(a) The District Court for the District of Columbia
shall have original jurisdiction, without regard to the sum of
value of the matter in controversy, over any civil action brought
by either House of Conj^ress, any Committee of such House, or any "
Joint Committee of Congress, to enforce or secure a declaration
concerning the validity of any subpena or order issued by such
House or Committee, or by any Subcomiriittee of such Comrii t:,ee, to
any officer, including the Probident and '/ir --Fr'^sident, or any
employee of the executive branch of the Uniiei States Government
to secure the production of Information, •■■.■■ -'^r.'rs, or other
materials.
1096
-2-
"(b) Either House of Cornjress, any CoiiKj.lttee of such
House authorized by svich House to brint; suit, or any Joint
Committee of Con,^i"ess authorize'l by Congress to bring suit, in
addii-ion to any cfnri- available reme'lies, may corornence and
prosecute a civil action imder svibsection (a) in its own name or
in '.he name of the United States in the District Court for the
District of ColuiiDia to enforce or secure a declaration concerning
the validity of any aubpena or order issued by such House or
Convnittee, or by any 3ubconunittee of such Committee, against
any f;fficer, including the President and Vice-President, or any
employee of the executive branch of the United States Government
to secure the production of information, documents, or other
materials ,
"(c) Any Hous'^ or Committee coTunencing or prosecuting
an action pursuant to this section nay be represented in such
action by such attorneys as it may designate."
(b) Tlie analysis of such chapter 85 is amended by adding at the
end thereof the following new term:
"136^. Congressional actions."
1007
^2^°' 2 -ONGRESSIONAt RKCORD^SENA
now Uiey™ c«.lln« m Shortage - B » w •!- exam„1. .rfV~.' ' i *- f •*?'S^.'' ""= '
rcwiy hu sold out mort or tn. i.ooo Kirt. of rfr^ ,. .1 "<"«"> <iff^»n Amtrtea. TB-
s^^nsonfd llnvocd It had set ulde tor thl» *'*'"^ " " "^"^ PtiniH ''^ to <JtUrlor»tA,
•'nter. -.'■ ■ , , .- . "■■•^''^^"Ifnt.Iajii iotngtotctpUtt.
Some Brewood dealers already are sold out, *"« about this 5vbJ<xt tmtll Somfon* »rt«'
such aa the F. I^ Watkina Co. of Seal Pleas- oa the bafl. There U r.o msoa *h»lMi-
ant. M4 . which has been handling flrevrood ever to have the 6liww of thl5 dtT fcok '
here for almoet GO jeai.. "We were sold out Uke K garbage dump for UirSS^M^
»rcki ago and no» I cant get anj- said -m coLuin* ' • • - - . -fs^,*^";
o«ne.- Fred Watklns. - .^-. ■-> t.. «^^ . J -^ ' -i?'3,5•^• - ' ,
■There's no real ahortag* . . . but e»erT- f .1? T^* 7° *" °'^'^' "<* lo Voik." Uxl '
body-s been scared to death by stories about 8" 'he J(* done. :_ ^ .-'^.'-l.-Tv' .'. ; '' .'
a fuel shortag* ... In fact they're not onlj' " "'e District ot Columbia does not
bought up an iny wood but bought everj have the funds to do II, Ihen they should
''^'i*. '.'i.}^.'f'"™ ^^ almost all the bags ot come up her« lo US mid ask for It and
i-B^
November 7, 197 S
coal," Walklns said.
One of the area's largest store dealen.
Acme Stove Co., said yesterday It has sold
virtually erery wood store It has "Franklin
stoves, pot-bellied stoves, wood stoves, wtx^ /
heaters, you name If and that the foundries
that mAke them ai* now three months to
more Ih^n year oversold.
Many of the stove sales came before threats
of a fuel ci<tss. Acme says, and are doe largely
to the Increase In rural second homes vhers
primitive cast Iron fireplaces and stoves ars
In demand. • ^ " t ' ■ ""
The Impact here of a winter shortage of
home heating oU and gas expected nation- ,
wide Is \iuclear and will depend largely upon
the weather, according to oU companies and
the Washington Gm Light Qo.' •" ..\' • .
Most Washington-area ho.mes are heated by
gas, the rest by oil and electricity. Local a]>-'.
pllance stores and department stores such as
Hecht's s&ld yesterday there has been a no-
ticeable Increase In sales of' sroall electrlo
spac^ and baseboard beaters In the past^
month, but no stores reported shortages. ^ -■ ..■
Most of the two dozen firewood companies
listed In the yellow pages of the telephqne
tx>ok said they ais turning down orders for
wood, are simply out of It, or have wood but.
predict delays of several weeks In deliveries.^
White Oak Tree Service of Silver Spring tells
callers It cannot make deliveries Januarj.
Most wood dealers say the problem Is that
It takes several months to a yeAr to season —
dry out — wood so that It will hum well, and
dealer? did not antlclpa'te a run on firewood
this falL
While there Is an apparent shortage of sea-
soned, firewood, there Is still green wood
available at many wood dealers.
Many firms are now recommending mixing
green and seasoned wood, partly perhaps be-
catise stocks of seasoned ^wood ere running
low. ^ ^ .
Under both' Virginia and Maryland law
(but not In the District), firewood must be
sold by the oord or an exact portion of a
cord, and uss oT woods llks "fac* cord" la
Illegal. A cord Is a stack of two-foot logs
four feet high and 16 feet long, totaling 138
cubic feet of wood.
'n K>cne help.
When I go do»Q .M Street, or South
Capitol or North Capl'ol Streets and see
the Uttered sireeta. It i. lis me thai some-
one Is not doing his Jv^tx
I hope that somccn.' in the District of
Columbia wia read what I have said to-
d£vy. I am sending the-n a letter, aro-way.
As a matter of fact. I write to them qulU;
often but I am not s'lr^ tiiey get the malU
But I sh&n continue lo *rile and I shall
continue lo speak out, because when peo-
ple come to this great jlty they. should
se« something else . t>cside8 exi>enslve
Government bulldliiga. They should be
looking at a commtinlty which Is proud
of ltse«.^ ':, . . ,. ., r.-:--^'.;^--., ^
I slmll ask the, press to do whatthey
do^elsewhere, to get tlie people of a com-
ratlnlty to do something to make their
city the beautiful city It should "be-' ".-." '
I.tT US CLEAN UP THE STREETS OP
THE DISTRICT OP COLUMBIA
Mr. HUMPHREY. Mr. President, may
I suggest that the District of Columbia
tet busy and clean up its streets around
lure. The Nation's Capital looks like a
garbage heap. It is time someone did
■-oiiicthlng about it. This Is a great Na-
tion's Capital, As a former mayor of a
great city I know that the streets can be
kept clean and th»t we do not have to
leave trash piled up In the streets.
It is about time that someone spoke
up in the Senate about this matter. We
appropriate the money for the District
of Columbia here In Congress. I am »
taxpayer. All the people of .America are
taxpayers for the District of Columbia.
It is about time that this city was made
to look like It should; namely, a shining
SENATE RESOLUTION 194, RELATTNO
TO SENATE RESOl/ulTON 60 — CER-
TAIN surra iNsrtiTjTED by tub
SELECT COMMIl IKE ON PRFSI-
I DENTIAL CAMPAIGN ACTIVrnES
Mr. ERVIN. Mr. Pi,-sldent. with the
consent of the majority leadership, and
without objection ou the part of the
minority leadership I ask unanimous
consent that the Senate proceed to the
consideration of Calendar No. 454,
Senate Resolution 194, and that It be
called up for immediate consideration.
Tlie PRESIDING OP i'lCER (Mr. Mc-
GovERN). The resolution will be stated
by title. ■ -
The legislative clerk read as follows:^
S. Re«. 1B4. relating to 3, Res. eo.y" ,
The PREStDINQ OFPIcint, Is there
objection to the present consideration of
the resolution- . - ; ^ "^v ,•
There being no objection, the Senate
proceeded to consider the resolution.
Mr. ERVIN. Ut. President, this Is a
simple Senate resolution which. In ef-
fect, states that the Senate Select Com-
mittee on Presidential Campaign Activi-
ties In the Issuance of subpenas for cer-
tain documents was acting within the
scope of the provisions as authorized by
Senate Resolution 00 and ratified the
action given in Issuing the subpenas and
also In bringing suit in district court for
the enforcement of subpenas.
Mr. President, the resolution before the
Senate Is Intended to aid in resolving
certain questions that have been ra^ed
concerning the select commllee's ac-
tions. "-^ . " ■ ..-r-
It states that It is the sense of the Sen-
ate that the comnaittee, tmder Senate
Resolution 60, had and has authority to
subpena the President, who 5s an "offl-
cer" of the United Stales amenable to
, -bPf na under section 3 (a) (5* of Senate -
Pr^uUon 00, to obtain certain Infor- ;.
r;„Uon reUtIng to possible Improper D--
, aL or unethical conduct In connectidn
v'm his candldaby for the Prestdencj_ >
In ISTT It further it^tes that the Sen^^.f..
■", lli^riva and ratifies the comAlt:.-.-:,:
Ice-t action In regar4 to Its subpenas. , .-,, .„
It stiles It Is the sense of.the Senate. - ,
thai' the committee and Its membera-..-,
were'and are -.fully empowered by ap-...„.
.UcaW* cnston, and law, Includtog Sejo-. ,-
-•©•ResoluUon 26». 70th Congrws, first .-^r
■<:.v,i'a (1928), to'sue to enforce the com- ..- .,
.dtlee's subpenas and that the Senater <...-
.pproves and ratifies the Initiation and ..-.,
proiocullon of this lltlgaUon.
Finally, it states that It Is the sense
>f the Senate that the committee and
!■■< memlRjrs. In subpenalng and bring - -
ft tlvll action to enforce Its subjjenas,
-vere and are acting in furtherance, of '.
valid legislative purposes — a determlna- •
lion of the need for and scope of cor-
'c live legislation relating lo Presiden-
tial campaigns and, in that regartl. the
• cvelaHon to the public of the extent of ■
corruption In the 1972 Presidential cam-
paign and election- It also stales that It .i , -
Ls the sense of the Senate that the U)-'^ ;.\5
'ormatlon sought Is vital to the perform •^.■' ■
•lUce of the committee's functions.' t ■
The members at the committee are •
fully confident that they have ccanplete
authority to pursue the activities re-
ferred to in this resolution, and are act- -
lag In this request with valid legislative -
; tirposes. ITie re-wlution, however, re-
T'.ioves an doubts. : ■ ; -^ j-,' .-<- ' . --.. '
The resolution was" agreed to, as fol- *■ .
lows:.Lr„ i^i";-?- -\ J' r. '- ." '>f.-.
-. " a. R»- 19* r ; -■ - .
Resolution relating to S. Res. 60^ '• . . '• '.,
Jteaolved, ThaJt — ' * " ' _
SrcTioK 1. By 3. Res, 60, Ninety-third
^-'.ngress, flTOt session (1973). section 3(a)
■, f»), the Select CSomnilttee on Presidential '
CAmpalgn Activities w-as and Is empowered »
to Issue subpenas for documents, tapes and
^^ther materials to any officer of the execu-
tive branch of the United States Govern-
ment. In view of the fact that the President
of the United States Is, as recognized by S.
Res. 60, an officer of the United States, and
was a candidate for the office of President In :
1973 and la therefore a person whoee aotlvl-
tlea the select comnillTce^ is authorized by
6. ReA. 60 to Investlgats. It Is the senss of . '
tho Senate tliat the select committee^ Issu-
ance on July 23. 1973. of two subpenas duces
tecum to the President for the production ot
tapes and other materials was and Is fiUly
authorized by S. Res. 60. Moreover, the Sen-
ate hereby approves and ratifies the com-,
mittee's Issuance of these subpenas.
Skc a. On August U, 1973, the select com-
ralttee and Its members Instituted suit
against the President of the United States ^
In the United States District Cotrrt for ths "
District of Columbia to achieve compliance"
with the two subpenas referenced In section i
above, and since that time. In both the dis-
trict court and the United States Court, of ^
Appeals for the District of Columbia Circuit,'*'
have actively pursued this litigation. It Is th^
sense of the Senate that the Initiation and
pursuit of this litigation by tho select com-
mlttes and Its members was and la fully ,
authorized by applicable custom and law.
Including the provisions of S. Res. 262, Sev-
entieth Congress, first session (1928). In
view of tho entirely discretionary provisions
of section 3(a) (6) of 8. Res. 60, It Is further
the sense of the Senate that the Initiation
of this lawsuit did not require the prior ap-
c
1098
November' 7, 1973-
DNGRESSIOtJAL RECORD — SE> "B
S 20013
1 ♦ •V- ^«nftC«. Moreover, the Senate •
r**'^r «D^ovc?.nd raime. the action- of
fhT«lecf cXnltUe In instUutIng and pur-
lufr^ JSe arorc«.ld litigation. -
Rtt S me Mflett commltUe and lU mem-
. !«^b« Issuing BubpeniU to the President
and InJtUullng and pursuing lltlgfttlon to
Irhleve cornpll'^** wltii those etibpcna*.
«re and are acting to determine the ext*nt
of Dosslble IUe£»l, Improper, or unethical
cooduct In connection with the Presidential
cnmpalgn and election of IB72 by officers or
employees of the executive branch of tha
Unll*<l States Government or other persona.
It Is the eeiifio of the Senate that. In so doing,
the select committee and Its members were
and ar« engaged In the furtherance of Tslld
leclslotlve purposes, to wit. a determination
of the need for and scope of corrective legU-
latlon to eflfcguard the processes by which
the President of the OnlUd States U elected
and. In that connection, the Informing of the
public of the extent of Illegal. Improper, or
unethical activities that occurred In connec-
tion with the Presidential campaign and elcc- -
tlon of lfi72 and the Involvement of officers or
employees of the executive branch or others
therein. It la further the sense of the Senat*
that the materials sought by the committee's
subpen&s are of vital Importance In deter-
mining the extent of such Involvement and
In determining the need for and scope of cor-
rectlveleglslatlon. ■*_ ' ,'_ ; ' ^
Mr. ERVIN. Mr. President, I move. that
the vote by which the resolution wai
aEi*eed to be reconsidered •. ; -. *■ . •
Mr. ROBERT C. BYRD. Mr. Presi-
dent. I move to lay that motion on the
table. .."-u :v ;.->' '^
The motion to lay on tKe table was
agreed to. . '
Mr. ERVIN. Mr. President. I want' to
thank the majority and minority leader-
ships for permitting me to bring up this
resolution at this time.
The PRESIDING OFFICER (Mr.
McGovEHN). What Is the pleasure ot the
Senate?
Mr. MANSFIELD. Mr. President. I
suggest the absence of a quorum.
The PRESIDING OFFICER. Tlie clerk
will caU the roll.
The legislative clerk proceeded to call
the roll.
Mr. HARRY P. BYRD. JR. Mr. Presi-
dent, I a.<;k unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without
objection. It Is so ordered. ' -
ONE HUNDRED AND FIFTIETH AN--
NIVERSARY OP THE VIRGINIA
THEOLOGICAL SEMINARY l-J-...^
Mr. HARltY P. BYRD. JR.' Mr. Pres-
ident, today I Invite the attention of the
Semite of the Unlt^ States to an Im-
portant event which took place in Alex-
andria, Va., the evening of Thursday,
November 1. 1973. ' .
The occa,sion was the 150th anniver-
sary of the Virginia Theological Semi-
nary. Legally known as the Protestant
Episcopal Theological Seminary In Vir-
ginla« the seminary was founded and
opened Its doors In Alexandria In Oc-
tober of 1823.
But at that time it was not Alexandria.
Va.; It was Alexandria, District of
Columbia. ^ ,
Alexandria lay wilhln a portion of the
State of Virginia, which from 1796 to
1846, was allocated to the Federal Gcv-
emment for the Capital of the Nation.
The first claw at the Virginia Seminary
consisted of one student. George A.
Smith, but by 1826 the student hpdy had
Increased twentyfold. " -."•
, Today the Virginia Seminary !b the
largest of the EpLscopal seminaries. -
Indeed. It Is now educating 20 percent
of all the young people studying for the
Episcopal ministry throughout the coun-
try. It has a studerit body of approxi-
mately 200 persons, from 50 dloceseA.
More than two-thirds are married; more
than half have seen military service. Ten
percent are women. -. - *•■■' •'' -'
I met and talked with many of thena-
They Impressed me welL ". ■."'-''
On the evening of November 1,^1973,
All Saints Day. a commemorative cere-
mony was held at the Virginia Semi-
nary— a service and communion and
then a dinner. '?" ,. "- '
Present were many Members of Ih^
Congress. ^ -•'.■- .'
Presiding at the dinner was the Hon-
orable Armlstead Boothe, of Alexandria.
Mr. Boothe has had a distinguished ca-
reer as a lawyer and as a member of the
Vh-ginla Legislature. He is now devoting
his time and tiilcnts to the development
of the Virginia Seminary.
The sermon at the Congress night
service, held in the Virginia Seminary
chapel was delivered by the Right Rev-
erend Robert F. Gibson, Jr.. of Virginia.
Bishop Gibson pointed out that Semi-
nary Hill and the Capitol of the United
States across the river, long have lived
In each other's shadow. He mentioned,
too. that the part-ih had as Itslnembers
both George Washington and Robert E.
Lee. ,- . ^
The senior Senator from Virginia had'
the privilege of being present last week
at the commemorative service and the
dinner which followed. '
I was much ijnpressed with Bishop
Gibson's sennon. I feel It should be
shared with my colleagues in the Con-
giess.
I ask unanimous consent that this ser-
mon by Bishop Gibson, delivered on the
historic occasion of the 150th anniver-
sary of the Virginia Seminary, be printed
at this point In the Record. _ .
There being no objection, the sejmon
was ordered to be printed In the Record,
as follows:' ' .- ' , "* - •
Aix Saints Daj — Seminast ^esquj-
_, . Cenixnniai. J- - •■_
It Is my prlVriege to welcome and recog-
nize, with respect and gladness, our distin-
guished guests from tho Congrcsa present
for this special occasion. ■ ' - ■ • "
And I cannot refrain from mentioning one
In particular, the Vie© President -designate,
Gerald Ford. For this place of worship Is also
the parish church to which he belongs. So
oxir tle« are close. .-
I might also add that this geographical
' parish had aa Ita members both George
Washington and Robert B. t/ce. Indeed, In
the communion of the ealnts. we might say
still has them as members, which Is an In-
teresting JuxUposltlon of past, present and
future.
This Holy HiU, fl3 we call It. and the Capi-
tol across the river, have long lived In each
other's shadow, and the relations of^nUnary
and Congress have often heen close. With
fuH reject for the proper separation of
Church and Stato, I would pray that our
goals be mutual 'and that our ties ha
strengthened In common purpoae In the days *
ftheuL ■ - _
Ix>ng ag^' Vben tho Virginia Seminary^
opened tta^oors of learning In 1823. J&mea * ^
Monroe i was President. John Adanu az>d. ^
Thofn&s Jefferson' were stUl alive, and, tt
Ecems worth noting, had reached peace and-! -
friendship after years of philosophical differ-:,**
ences and political enmity. ■ ^ - '„;''.■*' ^'T-
'tho Seminary from Its founding had '•'.■',
vision and purpo» ot mission. Its graduated
went out to all parts of this country, and - .
also to the uttermost parts of the world.. -
Since long before Congress had the dreadful %*
responsibility of governing a world power^rf ■
has heen true that the sun has never set OH"'
the work , of the Virginia Semlnaiy. .^ ; " *.jl
AH this seems worth recalling when w* ''
are gathered together on AU Saints Day as a >
fitting pari of the Seu^ul-Ccntennlal of th« ..
Seminary. We celebrate 160 years of servlosj ^
to our Church end country and worUL -.-■' ;^-
All Saints Day, I think, la especlallj appro- 7.^
prlate', not because of Its date, but because ^'
of Its message, a double-edged word of sig-
nificance In these days of crisis at home and
abroad. All Saints Day always bids us to look^
backward into history la grateful remein- ',
brance so that we may he strengthened tv^ ,
look forward to our purpose and goal u
Christians— and. Indeed, as Americans, If w« ~
are faithful to 6\iT heritage. ' . _J - ^ _ r
Llsten'to the Church's message (Proper
Preface) : "We give thanks to thee, <^
txird . .' . who. In the multitude of they*".
Saints, has compassed us about wlth'co greai"
a cloud of nitnesses that we. rejoicing la*^.
their fellowship, may run'wlth patience th*'*;';
race that Is set before ua."-V t-»-' -, ■-■,••"
This Is to say, remember your f oref athcfs— '■'.
certainly Including the faithful, the E&lnta^-.,-'
of this Seminary and of the United States
Congress — ^remember them, thai In their",
fellowship, ' their witness, we may b* -:
strengthened and guided to go forward to-*
day. - .-^■■- - , • ^ -^" ~ ;■ ■ "^ ^' '■■■"-
Or, again. In that apocalyptic vlsfon Just'
read to us as the Epistle: "After thte I be-'
held . . . a great multitude, which no man"^
could numl>er, of all nations, and kindreds,
and people, and tongues. . . . What are
these . . . and whence came they? . . . These
are they which came out of great tribula-
tion, and have washed their robes and made
thera white In the blood of the Lamb. . . .
They shall hunger no more, neither thirst
any more. . . . For the Lamb which Is In the
midst ot the throne shall Iced them, and
shall lead them to living fountains of waters:
and God shall wipe away all tears from their
eyes."
Remember and hfjpe and, by the grace of
the Lord, serve your day. Th&t Is the AU ■
Saints Day messagei. .- . -
We need It. We need^lt precisely becauee*
nelther^latory nor apocalyptic are popular
among us today. And without them service
can be, and often la. misguided, empty and
unfulfilled. Kcmember and hope In order ta.
eerve. . ■- -^ ",,■■*- .>jV -•*:,.■
we need It because the lack ot observance. .
of such a day as this Is Itself a commentary'
o'q our Inadequate use of history and scrip-
ture as faithful Christiana. T^ls country
knew that yesterday was Halloween, a day
which somewhat symbolizes our confusion
and the presence of wild spLrlta aoiong ua.
~ But how many of us gave a second thought
to All Saints Day and Its symbol? I doubt
thpkt many of us, laity or clergy, would be '
attending church servlcec tonight except for
this special occasion and Invitation. Some-'
how In our supposedly "rclevanl" llvu our
"holidays" are no longer "holy days" of faith-
ful remembrance and hope. -' - -
Perhaps we cannot, or even should DOt»
restore the "holy days" which developed
In a more consciously ChrLstlan culture, and
In a time less pressed by the perplexities and
daoeers of our life. But all days are holjr
days to those who know and wonld eerr*
1099
e
jjovemhet 7, 1979-^--
CONGRESSIONAL \i CCORD — HOTiSB" -
H97i3..
?v-..
*J- v.- ^ B7*tr. nSHi. V-t'-
TT' * H-R- 11^0. A bn) to estabtl&n ui Indrpend-
(•U .pt Special Prosecution OfBc*. lu ftn ln*le-
"t* ptn^cnt »£cnc'y of the United Stit^tT »n4
^^ oi^cr purposes; to tlic Ctommlttce od th«
r judici^T. ..- .''^ f-":- 1* :/ :.
Ot^ :- B)( Mr. FRASKB^ -. ■ * . /
T' H-GL 119^1. A bin to tennlnaM the Airlines
\^' jjulual Aid Agreement; to the yCcmmltiee oo
" iDteretftlo kn4 Foreign Comnjtrce. *" * ^_.
By MV. UASTIN08:
'HJL in33\A bUl to rcpes/ tlic act of Jaa-
'" " uft^ 5. iS^.Velfttlng to JiiHsdlction over t2i».
~ t*^l^£ ^' '^'A ''^'^ game liithln certain Jo-_
*' dlAA rescrvaMong; to tAe Committee on
*" Interior and Insular Affal
>' By Mr. ihXMANr/ - .f • •
,'T HR. 113.13. A, bill to'proTlde a 7-percent
Increase in social security Ijcneflts bcElnnln^'
wltb March 1974 »nd tin addttlonal 4 -percent
increase beginning *ith June 1074; to pro-
liplcmentAl recurlty In-,
other purpo&es; to the
and Meana.
^provide Icr the eslaV
(ican Folk Life Center
Oongr^sa; and for other,
qnunlttee on^ Boose
ride Incre.ises
come benrflts, and
Conomlttee oa Wa;
' By Xtr. LUX
HR I1S341 A
llshmenC of an
la Cie Ubrary
purprx-es; Xo
Adinlnlitxatloi
HJl. 11.335. A bin to ^end'the Securltlei^
Excbange Acy of 1934 to testr^ct persons who'
are not .cUl^ena of the wnlted States from
acqu!r1rg more than SsVercentnm of the.
nonvoting pccurltles or more llisn 6 percen- .
turn of the voting securities of any Issuef .
whoee ETCuiittee are registered under surA
act, &n<S for other purposes; to the Com-
mltte^e p'n Interstate and Fo/jelgii Commerce. ,
HR. 11336. A bill to prohibit witliout con-
giesslcnal approval expcndltiJ^e of approprl-''
atccrtunda with respect Xt> pAyate property
use4 as rpsldpncee by IndlyldtiaJt* whom the
Secret Service la authorized to\protect; to
«^ CommlUce on Public Work*.
; By ISx. PREY131 (for himself, Ms. As-
Kua, Mr. Alexakde*. Xtr. Esown of
CaJIfcrnla. Mrs. Cot.T.n-rs of minolfl,
Mr. Pasceix, Mr. Forsyuie, Mr.
FouNTAH/, Mr Hajifx-jcton. Mr Kt-
Hcs, Mr. McCoRMAcK, Mr Mann. Mr,
Mcakixt, Mr. Mollohan, T,lr. Afoss,
lAr Mu>j>iit of New York. Mr.
O'HAa*. Mr. PEPPI3, Mr. Rles, Mr.
RoTf, Mrs. SCHHOEDEB, Mr. Tatlos of
North Carolina,' Mr. TtraNAN, and
\'.T. Waldw) :
H R. 11337. A bill to confer Jurisdiction
upon the district courts of the United Statei
over certaiji diiX ai:U.iri^s brought by tlie
Congrcta. and for otiirr purpose*; to the
Committee on the JuJU'a^f. •'-'..- ^
By Mr. SMTTH o( ( j va (for himself.
Mr. Amiar-wa of »' irth Carolina, Mr.
CxjuroL, Mr. D^Nl^•JOM, Mr. Nrt. Mr.
PcppEa, Mr, Picnr.*, Mr. RoBTWEon"
/ of Virginia^ \\r. Poomo, Mr. Rot.
. ^•;-. Mr. BoszwTTijn,. ?.{r. Rot, Mr. EEtEEa-
-• ' . ■ LDfo. Mi-. Bn-.;n. i.fr. Slack, Mre
■■^}' SoixtvaM, Mr. T.iosn-sow of New
. \.V '' Jersey, Mr. Tiirjii.:-*, Mr. Ud4U^ Mr
7 tTixMAjT, a-i^i ^.^ , ,f ki.dx*^i^' ■. '■rs'-'"
HR. 11338. A bill *'. . J the Oo'mmod-
Ity Exchange Act to ■ ^eo the regula-
tion of futures tradWi.^ • i'llre public dl«-
cloGure of certain tn"o -n I'.lon relating t->
eales of commodities, to bring all agrtcul
tural and other comnj vii tii.'s traded on ei
changes under regulall'>a, Ant\ for other pur
potcs; to the Committer <i A^culture,
By Mr. SVMlNnr- I, .-\r >,
HR. 11339. A bin • , nd "o-,e"Pederr.i
PN3od, Drug, and Co- i ' . to require that
patients may not be . i *iLh Investlga
tlona] new drugs wit' . -ir consent, ar -f
for other purposes. '• Committee on
Interstate and Fore!.' -rce. " .. '
^i. By Mr. ARCH.'- ■■ . ' • i5elf, Mr; A«>.f
^ ' ■-' eraoNC, Mr ■•■A Florida, J^.-
"."*'• "V EdWajids of 1 ■ \ \, Mr. PBrr, Mr
' '■■ , , Hastings, Mr. ■ ' ■ .m^ , Mr. , Hddkvtt ,
■- - '. ~ Mr. Kttchuw,' V/. Ijorr, Mr. Loit,
■_', Mr. liCjAW, Mr. McCooosttjC *'*■
^''\ ' McDadk, Mr. McPTi.-iNXT, Mr ^tAan.N
•i' * of North Carolina, Wr. MmsHAU-'ot
- :.' .. Ohio, Mr. ^f<-i^0 1«M, Mr. Peteeb.
:^ Mr. Recui.\, ^ff. n.iBiK60K of Vlr
glnla, Mr. Rooimo, Mr. Sbouf, NJr,
Tatkow, and \ir. Toxtno of South
Carolina) r. - - , ' ', ' '-t'--^ .\,- .* "■
HJ. R«a. 818. Joinf r- -^'-jtion to'exprcrv?
tfte Bense of Congre-Ji; tn=-t a White Hour^
Conference on the' 'Tw' -toped be calleJ
by the President o.' h "ited Slates; to
the Committee on '' ! ^nd Labor,
By Mr. Ci - himself, Mr
White. Mi J Mr. Hanka) :
HJ. Res, 814. J on to provide
for the appolntmc: laj prosecutor.
and for other pii , he ComnUtt**
on tlic Judiciary.
By Mr. Gil T.r \-
H J. Res. 816. Joint ft i..iimon to provld.:
for the appointment o( a Special Prosccut-.f
to Investltjate and proS':jcute uny ollense arl;^-
Ing out of campaign .^ctlvitUs with rcspcv-.
to the election In 13,'a ttr foe Office of the
President; to the Co'D-.niiL^.^'e on the Judi-
ciary, - ■ - __
By Mr. KzMf; ■-/:•-■ ."v" • — r/*.
nj. Rea. 816. Joint refoTutioa propoclof -* --.
ir- amendment Iq the ConBtltntlon of th« '•, .;.
' "ited State* to provide a Itmlt. establish e<f-_>-
\n relation to national Income, on Federal V '-
re\onue and expenditures, and for other p\a--*^S -
X-^'Jix^ to the Committee on the JudlclaryT--'" * -
By Mr. IX)NG of .Maryland: -.V-*.^-aj-'V^' '
HJ. Rea. 817. Joint resolatlod to provide It"^'"
If the appointment of a Special Prosecxrtoj, ' - ' *"
i^r.s for other pxirposes; to the Committee •::,'.\;,
•-•r the Jiidldary, ,. >^p ^. • -.-^ *'.<'■. .»^. ., >j^ -^^ ' *v
By Mr. LONO'of'MRrylanrf (for him-: J* * -
self, Mr. IlAHaiNCTOK^ Mr. Rees,' Mr. ^ - .-
Prasex, Mr. UoAix», Mr. Baowir of ./"-
> California, and Mr. Hkij^toski) : j^': ^ '^ -
I' Con. Ffea. 376. Concurrent resolution ei- !!(*.: •^.^'^
r ^. log the sense Of Congress that Richard '•v'-.'s J
i< Mxon should rciJgn from the Office oX V iS-" .'
v wi-lent of the United States; to the Co^-^Jz4b. :"
' i>?e on the Judiciary,' J-^^^ -rr-.:.;!* 'J'-TT *
By Mr. BTRON:^ ■ : : " ,-V -. ^ .,-,.* .'
L Res. .689. Resolution to seek peace In""'j^'*
* Middle Eaet and to continue to support^ "t*'
!■ ;i'b deterrent fftfength t^jough transfer V->^ -'
■! iniantom aircraft and other military sup- ■'' ■ J
f d; to the Committee on Foreign Affalra. oirl- '
. t y ate'biLlsIand' RE^
f'ndcr clause 1 of nJc XXII, privWle'--''
'■'Is and resoluHona were Introduced and. i
crapy referred as follows: -; V.-'.-,^ !j
" By Mr. BJtOYHn.L of Virginia* -^*-.^2'
MR. 11340. A blU for the relief of Mr*.,*-"--
.* ' -Tltsa Busch; to the Committee on the -
rttdiclary. ^-,^r~"" - •; '^ ;^ -_-" -.-■.--':... . -
By Mr. BTOTQW — . ' '-" •' - '^ -', '.' -. V 1
fa. 11341. A bin for the' relief of Jamee RJ ' ''
(^ - <a. Jr.; to the Committee on the Judiciary.'
' ByMr. DRINAN: ' ^- V. , - ,'^ •
JT.R. 13342. A bUl for the relief of Benjamin -
H Z^ucardle; to the Committee on the Judl-~ ■
PETTnONS, ETC.
Under clause 1 of rule XJCri, petitions
.-' r.-j papers were laid on the Clerk's desk
^iii referred as follows:
ro By the SPEAKER: Petition of TlsraeJ
V' .Mi»yahu, Speaker of the Kcei^et. Tel Aviv,
( .'^el, relative to treatment of prisoneTs of
.. by Egypt and Sjrla; to the Committee on
iignAffalra.'
^'^l. Also, petition of James L. DlUard, St.
' ■ ana. N.T.; relative to recess of grievances; .
'.- *hc Committee on the Judiciary,/ - -V''
1100
S 20130
CONGRESSIONAL RECORD —SENATE
I feel It 1« Important to show that
whether we are regarded as liberals or
conservative*, or whatever we are. we
stUl back up our country, and others
should not make the mistake of assum-
ing that dlsllkejor the President on the
part of some woUW Influence us to let any
foreign element colne In here and under-
take to Influence oiVpeople to the extent
which apparently some are trying to do.
Mr. HUMPHREY. \Mr. President, I
thank the Senator fr\m Vermont, the
The resilience and resolve of the Amer-
ican people Is second to none. In my
Judgment, and the proposed resolution
offered In the .s.-iinc spirit of bipartisan-
ship evident during the near confronta-
tion with the Soviet/ Onion, Is proof of
that unique determmatton.
It should also be/made clear tliat the
United Stales will not shrink from Ita
obligations to ourAllles nor abandon our
efl'orts to bring 9 Just and lasting peace
to the Middle Efisl, no matter what the
fjovatnber 9, 197S
ORDER o/bUSINESS
ACTINQ PRESIDENT pro tem-
pore, t^^a^ from Wyoming 1. rec-
"^•n^f^tt^ senator McGee made
«i A!lf ^3^Z, Se introduction of 8.
^KiV^^'^^^uh the nomination of
l^^^^o^^xf/^ Attorney G«.er^
and the/nsulng^SSMW •""e Prt"_K=d In
the RrroRO under St«
duccd BUb and Joint 1
cnients on Intro-
vsolutlon.)
Senator from MIchlBanVand the Senator cost
from Georgia for their ^niinenU. I am
confident, that what thIsVesolutlon will
do will be of substantial hWp In obtain-
ing peace in a very troubleapart of the
world, at a time, may I say. i«!ben the en-
tire world Is deeply concerneX over the
constant threats. confllcU, andtcnsion.
Mr President, tills resolution temercly
an effort to state once again thiit when
the vital Interests of our country »re at
stake and when a determined effort Is
being made to obtain a peaceful sohltlon tlon was/consldcred and agreed to,
to giave International disputes, we In ^lU The ij^eamble was agreed to.
Tliere can ht no more significant goal
than protecting our national security In-
terests whetWer at home or abroad, and
I am pleased/today to lend mj' enthiftlas-
tic support »> a resolution which empha-
sizes the primacy of security over any
and all dorup.tlc problems.
CONFERPINO JURISDICTION UPON
DISTRICT COURTO OP TTffi
UNITED STATES Ol^„£^™^*i?
Civn, ACTIONS BROUGHT BY
CONGRESS
Mr. ERVIN. Mr. President. I ask uiian-
The_ACflNG.PHEsmENT pro Um- 'Z'^^.^r^A^nTiSl^'^o^^^l
B. 2641. wWch was placed on the calen-
pore. Is
consider;
■ There
J iKtoLutM 1- pro lem- "■■>"^ .r m _\rf rilendar No.
.ere objection to the present ">e coi^slderallon »' <;"L^oru,e "
ion of the resolution? 8. 2641. wWch was placed on uie c
dar on November 2.19"
being no objection, the resolu-
body and elsewhere, without trying
rubber stamp anything, will put ask
whatever partisanship we may have, anc
win even put aside our feelings on domes-
tic concerns, and try to unite In common
cause and common purpose.
Mr. President. I would hope that we
might now move tc favorable considera-
tion.
Mr. GRIFFIN. Mr. President, vriU tV.e
Senator j-leld for the observation that
this resolution helps to establish the
spirit of Arthur Vandcnberi. which has^
not been reiiealed. -
Mr. HUMPHREY. Yes. I thank th/
Senator.
Mr. HUGH SCOTT. Mr. President/ I
am pleased to Join two of my dist
guished colleagues (Mr. HuMPHREY/ind
Mr. AmEN) on Friday In sponsoring tills
resolution relating to the nationj
curlty of the United States. What /t says
to other nations Is this: do not canstrue
domestic events as adversely anectlng
our resolve to uphold the vital mtercsts
of the United States, especial* In the
Middle East. In that most troiJbled part
of the world, the President of pe United
.States, with the support of/ the Con-
gress, has not only brought about a cease-
fire, but has been able to bi/lld founda-
tions for a lasting peace.
The Humphrey resoliAloa should
stand as a red light to tlftose who feel
that domestic unrest caiy be converted
to~a foreign policy defeat. I commend
the Senator for his In/tlatlve In this
regard.
Mr. BAKER. Mr. Prejfldent, 1 wish to
commend the distinguished senior Sen-
ator from Vermont and the dlstlngukhcd
junior Senator from Minnesota for of-
fering one of the most timely sense of
the Senate resolution^ I have seen In
recent years.
That resolution serVes notice to any
and all potential adversaries of the
United States that it would be the
gravest sort of error to misinterpret the
effect of our present domestic trouble:
on our ability to protect our vital na-
tional Interests both at home and abroad.
with Its preamble.
The . frcsolutlon,
reads bA follows :
RESOL^IOH RtLATlNa Tt> TH« KaTIONU.
ECuiiiTT or THE UroTEO States
Whjfreas tbe law of our nation requires
>ncurTe:ice of the Congref^a In all decl-
relattng to the nation's vital nattonal
'rtty Interesis; and
" lOreaa the recent uncertainties and dlvl-
sl^ni, la the nation may cause adversvlea
d fHends to doubt the blpnrtUan unity
lehlnaithe pvirsull of our national security
bJectlAs. and
Wherel^ the ability of the U.3 govcrnnietit
to effectively pursue Its International objec-
tives mus^not be Impaired, particularly la
lime of crl^; and
Whereas rVcnt International events have
posed a gravAthreat to peace and stability;
and
Whereas the\ U 3. la currently Involved
In serious negr<tl\tlons affecting oiu vital na-
tional lntere.-,ts aVd the peace of the world:
Now, therefnre. be
Resolved, that It k the scn.se of the Senats
that other nations should not construe do-
mestlc events as adversely afTectlng our re-
solve to uphold these Wtal Uitcrests, nor bo
tempted to sel?* uponVhem as an oppor-
tunity to ui>dcrmlne t^ security of the
United States;
Be It further resolved tnWt It Is the sense
of the Seriate that other nitons should not
construe dL>mestlc events a.s\linpnlrlng the
full commitment of our gVcrninont to
achieve a Just and durable Pface In the
Middle East:
Be It further resolved that the ^late calls
upon all friendly nations to JolnVlth the
United States In pursuance of thete vital
common objectives, which have as their goal
respect for la* and a stable and t-ecure peace
throughout the world.
IMr. HUMPHREY. Mr. President, I
move that the vote by which the re.olu-
tlon was agreed to be reconsidered.
Mr. NUNN. Mr. President, I move th-it
the motion to reconsider be laid on the
table.
The motion to lay on the tabic was
agreed to. r
Mr. HUMPHREY. Mr. President. I am
very pleased and I want to thank the
leadership for its cooperation as well as
my colleagues.
This resolution will be oihii f.ir f'lr-
thcr co.siwnsor.stilp.
The ACTING PRESIDENT pro tern- .
pore. The bin wUl be stated by tlUe.
The as.slsUtnt legislative clerk read as
follows: ...
S. 2«<1. to confer Jurisdiction upon the
dutrict courts or»l.. 'ai^'^Sl^}^smtTjeT.
Uln cuni action. b,x>usl>t by the Congress,
and for other purposes. , - ■ . ^- ■ ' .
The ACTING PRESIDENT pro tem-
pore. Is there objection to the present
consideration of the biU? .^- ■ '• ' ,
There being no objection, th^ Senate
proceeded to consider the blU.
Mr. ERVIN. Mr. President, I send for-
ward a substitute amendment for the biU
and ask that It be stated.
Tlie ACTING PRESIDENT pro tem-r
pore. Tlie substitute amendment wUl be
stated.
The assistant legislative clerk pro-
ceeded to tend the substitute amend-
ment
Mr. ERVIN. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
Tlie PRESIDING OFFICER (Mr.
NuNN). Without objection. It Is so or-
dered, and the substitute amentUnent
wiU be printed In the Record at this
point.
Tlie text of the substitute amendment
Is as follows:
"(a) The Dbtrlct Court of the United
states for the District of CoUiinbla shall
have original Jurisdiction, without regard to
tbe aum or value of the matter In cpa-
troversy, of any clvU action iieretofore" or
hereafter brought by the Senate Select Com-
mittee on Presidential Campaign Activities,
which was created on February 7. 1973, by
Semite Resolution No. 60. to enforce or se-
cure a ■Ic.-Iaratlon concerning the validity of
any s-i^poena or order heretofore or hereafter
li.uK.l by p lid Committee to the President or
the VIre President or any other officer of the
UnUcd Slates or any onlcer or employee of
any department or agency of the United
StAtes to procure the pro<luctlon before the
aald Commute* of any Information, docu-
nients. taped recordings, or other materials
rcle r.nt to nvvllirs the s-ild Committee U
Mi'-h .rlved to ln\cstlgate. and the said DIs-
tilct C'-urt shall have Jurisdiction to enter
.V- y --Kh J'jdgrnent or decree In any such
cU:I A'-'.I-'n a.H may be necessary or appro-
l-;! I'u to e-if r »> obedience to any such sub-
p ■«■! I or t-r I- r.
IIUI
November 9, 197S
JNGRESSIONAL Kl CORD— SEN/
"(b) The Senate Select Committee on
Presldenltftl Campaign Activities shall bave
autl.orUy to prosecute In Its own name or
In the name of the United States In the
District Court of the United States for th»
District of Columbia any civil action hereto-
fore or hereafter brought by said Committee
to enforce or secure a declaration concerning
the validity of any subpoena or order here-
tofore or hereafter Issued by said Committee
or Vl-'e. Prtildent or any other olIlctT of the
Unit«d States or any officer or employee of
any dcparrtnient of the United states to prfl#
cure the production before the aald Com-
mittee of any Information documents, taped
laiiOrdlngs. or other niaterlalB relevant lo
the matters the Committee Is authorized to
Inve-tl^ate. and pray the ssld District Court
to enter such Judgment or decree In said
civil action as may l)e necessary or appro-
priate lo enforce any such subpoena or order.
"(c) The Senate Select Committee on
PreJldentL-U Campaign Activities may be rep-
resented by such attorneys as it nay desig-
nate In any action prosecuted by said Com-
mittee under this Act."
Mr. ERVIN. Mr. President, I should
like to state that I am introducing this
substitute amendment with the approval
of all members of the Senate Select Com-
mittee on Presidential Campaign Activi-
ties.
Tlie original bill was rather broad, in
that it attempted to give every congres-
sionn! coininlttee the power to bring suits.
At the suggestion of the distinguished
Senrttor from Nebraska (Mr. Hhuska) , I
decided that the original bill was too
broad and I drew up this substitute
amendment to confoiTn to his sugges-
tion: thit is, that the bill be restricted
to the S'Miate Select Committee on Presi-
dential Campaign Activities. That is the
purpose of the substitute amendment.
The amendment Is necessary because
Judge Sirica held tliat the District Court
of the Di-stiict of Columbia had no juris-
diclion to cnteitain the original suit of
the sul-.-ct committee. The sulssl-itute
amendment is to cure this defect In
jurisdiction.
Mr. HRUSKA. Mr. President, the bill in
Its original form was very broad and
i-uught to establish a vast area of new
Fideial jurisdiction, the bill as amended
would icslrict its scope to the Senate
SeltcL Coinniittce on Presidential cam-
palmi activities. I believe this to be a
wise step.
Even as to the modified proposal, how-
ever. I ."^uegest, Mr. President, that this
kind of step flies In the face of the
role of the courts In otir constitutional
s>::tri,i of Government, therefore, I would
like to lake this opportunity to offer
Seine «oids of caution with respect to
this bill which was introduced by my
distinguished colleague from North Car-
olina t?.fr.ERViM) .
On October 17, 1973. Chief Judge John
J. Silica of the U.S. District Court for
the Di^tlict of Columbia ordered tliat the
acti't;! tciiinienced by the Select Com-
mittee on Presidential Campaign Activi-
ties to enforce its subpenas directed to
the Pir.\ldent of the United States and
requ-^M;ng a turnover of certain tape
recotx'.ii.gs be dismi.ssed with prejudice.
TIjc bnsis of the court's dismissal of
th's actif n wtis a finding by the court
that there was no juilsdictional statute
upon v.hich the action could be gioundid.
Bociiuse of its conclusions and disposi-
tion, the court did n.ii reach the prob-
lem of Justiciability or H.e merits of the
case.
I have been advL:.' i that the Intent
of the sponsors of th . .■.•.hicct bill as orig-
inally Introduced Is t.i >jrant only such
Jurl.<.dictlon as is n.uJoJ to require a
production of the t i!>c3 requested. It
would seem, howt-vor th:tt the .sponsor)?
have gone far beyool tiieir stated pur-
pcse and suggest i 'irv id grant of Ju-
risdiction to the U..S Di<;trlct Court for
the DL-itrict of roMwIiia which could
.serve as a foundat''^r-, fr.'- substantial lit-
igation In this and '• oircumstances.
The proposed !, i :.. isn as originally
Introduced would -j. , - :-r Congress or
congressional coinni , to petition the
District Court for t'l" : irict at Colimi-
bia forenforcemoril .»' congressional sub-
penas or orders rein;: In? production of
Information, doctiip'' it j or other mate-
rials which are In th 'utody of any of-
ficer or employee nl i> ■ ;■ eculive branch.
Including the PresliLiV,. or Vice President.
As I Indicated enrlii r I believe the
amendment to conrSni^ >..ie scope of this
bill to the select con nillee was a pru-
dent step. However, ?\ i.a as amended, I
am concerned that I!.!? lilll would con-
fer original jm^i-sdi^i; n over such sull.s
to the District Cou. i io; the laistrict ot
Coltmibia and thii .'Ijy eliminate the
longstandine jurisdictional amoimt re-
quirement of 28 U.S O 1331.
In addition to au^v^rizing suit* for
enforcement of such .subpenas and .or-
ders, the bill also i "Miorts to author-
ize suits "to secure i'. ^Ipclaration con-
cerning the validity' :f such subpenas
and orders.. Tliis hrttor authorization,
although nebulous, iii'peurs lo contem-
plate suits for dciiiatory judgment
similar to the recent AcLion filed by the
Senate Select Committee on Campaign
Practices.
Tills proposal. K'.-ii-. '(•;d by the com-
mittee's unsucce.s.sfiil .at for produc-
tion of President!:',! iwpes and docu-
ments, does. In its pi> snnt form, present
serious problems ot .1 '.';Bal. and prac-
tical nature.
In its suit for dccl.nnory judgment,
the select commiM^- oor:cincally dis-
avowed any Intent or ij^ire to seek a
"wholesale Invasion >l the President's
flies." Furthermore;, Mi;^ .Select Commit-
tee cautioned thu* 'i ; particular case
"must be placed ir. ; r perspcctlva "
Such a cautious :.t^>-'i . ch Is even more
appropriate in an.ay/.ii'.i l!ie Instant leg-
islative proposal.
Congress has !i' r ■ i -d the power to
enforce its own :: . : Such enforce-
ment may be com. i ; j;- tlic Sergeant
of Arms for tlie .Sii lie or the House.
There Is. additlottally. ,.:.\.utory enforce-
ment power under i 'J.iC. 192, which
makes contempt of t''-n.;ress "a misde-
meanor.
For the first time in Mitory, however.
Congress is beins s.k.l to detcnniiic
tliat Uiese enforcement powers are in-
adequate. This dissat;if«tion has re-
sulted from an unprccM' nlcd clash be-
tween Congress and n ■■ Cliief Executive
In the context of ,t > -inc case — the
"Watergate case." Th;, 'j.ise" undoubt-
edly '.vill generate a vuii'ity of legi.sl.dive
refoi ins. This proposiil is ..-.erely the first.
S 20131
Instead of solving the signal jurisdic-
tional problem faced by the Select Com-
iiiltee. this proposal would cost Judicial
I: ranch in the role of timplre or referee
uiLween Congress and the executive In
'lUsjuites over Uie production of docu-
ments and information. In so doing, it *
Hies In the face of the role of the cotirts
In our constitutional system of govem-
/iient
Such a significant incursion Into tra-
litlonal Jurisdictional boundaries may
inly empha.'Ize the ultimate constitu-
ilonal obstacle blocking the success of
nixy congressional suit against the Pres-
ident. That obstacle Is the article m,
section 2 requirement that the Federal
courts entertain only Justiciable cases
and controversies. This constitutional
harrier prevents the courts from refer-
ring disputes between the other two
t-ranches. It cannot be avoided or erased
hy congressional action. Congress can-
i.ot legislatively compel the courts to de-
'iie a basically nonjusticiable Issue.
With this ultimate constitutional bar-
rier in mind, any leglslatloit. generated
by the select committee's jurisdictional
Jil-'mma. might best he limited to re-
volving that specific problem. The
vr.endment offered by the disjtingiiished
"enator from North Carolina (Mr. Ee-
vm) Is a step In that direction the bill as
c;iginally introduced would go far be-
yond such a modest approach by open-
ing a whole new field of Federal juris-
diction. It Is not difficult to envision a
virtual flood of congressional suits
t "linst myriad executive officials and
^^ployecs over the pi^duction of infor-
.n;ttion and doctmientation in the cus-
ifxty of the executive branch.
Tliere are other matters on wliich I
vioh to comment. Specific phrases and
terms cry out for clarification. Foremost
among these is the proposal's use of tlie
''■:m "order." In authorizing Congress
».r.d its committees to petition tlie courts
for enforcement of "orders." in iiddltion
to subpenas. the proposal becomes daii-
:;eiously ambiguous. Nowhere is "order"
defined. If the term Is to be used, it
should be defined and confined to spe-
oinc areas of congres.sional power.
The language authorizing suits "to se-
Miie a declaration concerning the valid-
ity of any subpena or order" is also ob-
scure. It appears to authorize the Con-
»?re3S to seek an "advisory opinion" from
'lie coiuts. an exercise in which coiu'ts
ivive never indulged.
.Before taking action of such a fundo.-
ri.'ntal ijature. I would caution my col-
ij;ij:ues to consider the advisiibility of
'.'•(X'^eding In a more deliberate manner,
J illiing the traditional committee pro-
•'sses of the Congi^ess.
niven the temper of the times, how-
•;or, the greater likelihood Is that some
'. :::-sion of the bill will be congif.s.sionally
approved. The suggested approach which
.^.1rrows the scope of tliis bill should sat-
isfy or gratify the demands of the times.
.\ny general statute of broad application
-should be preserved for future complete
!c;.;is!atlve processing.
In such processing, the precednits In
^use law, and In congressional proce-
dures, as well as the more profound and
/ iiidamental constitutional convideia-
1102
S 20132
CONGRESSIONAL RECORD — SENA * £
November 9, 197 S
ttons and requirements can be fully
presented and studied Indications of the
reaches and the gravity tJtpreof can read-
ily be perceived by a reading of Judge
Sirica's Order and Opinion filed October
17, 1973. In Civil Action No. 1593-73. the
suit brought by the Senate Select Com-
mittee on Presidential Campaign Activi-
ties; and also by a reading of a staff
legal memorandum which I now submit
Mr. President. I ask unanimous con-
sent that these documents be printed in
the Record at this point.
Tlierc being no objection, the docu-
ments were ordered to be printed In the
f^pcoRD, as follows: - <
A McMOKAKDUM Re A Bnt To ConrEa Jimis-
DicTioN Upon the District Coitbts or Tne
United States Over Certain Civil Actions
Brought ot the Congress, and for Other
Purposes
Thft proposed leK'-^latlon wonld empower
Congresa or Congressional Committees to
petition the District Court for the Dtetrlct
of Columbia for enforcement of Congresslon-
f 1 subpoenas or "orders'" requiring, produc-
tion of "Information, documents, or other
matf^rtals" whIcH are In the ciistody of any
ofTicer or employee of the ExectUlv© branch.
lucludtiig the President or Vice President. In
so providing, the draft bill confers original
Jurisdiction over such suits on the District
Court for the District of Columbia and elimi-
nates th» long-slandlng Jurisdictional
amount requirement of 28 USC 1331.
In ndditton to authorly.lng suits for en-
forcement of such subpoenas and "orders/*
the Bill also purports to authorize suits "to
secure a declaration concerning the validity"
of such subpoenas and "orders." Tills latter
authorization, although nebulous, appears
to contemplate sulU for declaratory Judg-
ment (28 USC 2201 et. seq.) similar to the
recent action filed by the Senate Select Com-
mittee on Campaign Practices.
This proposal, generated by the Ervln Com-
mittee's unsuccessful suit for production of
Presidential tapes and documents, does. In
its present form, present serious problems of
a legal and practical nature.
In Us suit for deckiratory Judcment. the
Ervin Committee Epeclflcally disavowed any
Intent or desire to seek a "wholesale Inva-
sion of the President's flies" and cautioned
that U£ case "must be placed In proper per-
spective." • Such a cautious approach Is even
iiiore lipproprlate in analyzing the Instant
lei;i I:»live proposal.
Congic;,3 has ulvvays had the power to en-
force Its own subpoenas. Such enforcement
may be compelled by the Sergeant of Arms
for the Senate or the House A-nderson v.
Dunn. 6 Wheat 204 (1821). Tliere Is, addl-
tlnnallf, statutory enforcement power under
2 USC 192. which makes contempt of Con-
i^rf'ss a misdemeanor. For the first time in
hiiJoiy, however. Congress is being asked to
determine that these enforcement powers ore
m.idcquat*. This dl^.'->atlsfactIon has resulted
from an unprecedented clash between Con-
gress and tlie Chief Executive In the context
of a specific case — the "Watergate case."
The Watergate "case" undoubtedly will
gciu-rate a variety of legislative reforms. This
!■ .iiosnl Is merely the first. It Is ImporUnt
tl 'lefoie to recall the admonition by Jvistlcft
Holmes:
Great cases, like hard cases, make bod
liiw. For greet cases are called great, not
by reason of their real Importance In shap-
ing the law of th.e future, but because of
fome accident of Immediate overwhelming
interest which appeals to tlie feelings and
distorts the Judgment. These Immediate in-
leresls exercise a Und of hydraulic pressure
• "RT' mor.'\ndum in Support of Motion for
Summary Judgment," at page 1.
which makes what previously was clear seem
doubtful, and before which even well set-
tled principles of law will bend."
Holmes, J.. dls.';enting in Northern Securi-
ties Co. T. United States. 193 US. 197, 400-
401 <10O4).
Given the extraordinary climate which has
generated, this lcgi':lftilon. every effort should
be made "to restrict the proposal's applica-
bility to the unique circumstances surround-
ing the quest for Presidential documents by
the Senate Select Committee on Campaign
Practices. Unfortunately, the propo.sed bill
Is not so prudently drafted.
Instead of stJlvlng the «lgnal Jurisdictional
problem faced by the Ervln Committee, the
proposal casts the Judicial branch In the
role of umpire or referee between Congress
and the Executive In every dispute over pro-
duction of document and Information by the
executive branch In so doing. It flies In the
face of the role of the courts In our constitu-
tional system of government. To use the
words of Justice Douglas, "federal courts,
do not sit as an ombudsman refercelng dis-
putes between the other two branches."
GrdPel ». United States, 408 US. 60«. 640
(1972) (Douglas. J. dissenting). Such a sig-
nificant expansion of traditional Jurisdic-
tional boundaries may only emphasize the
ultimate Constitutional obstacle blocking
the success of any conjiresslonal suit against
the President. Tliat obstacle Is the Article
in, ( 2 requirement that the federal courts
entertain only Justiciable cases and con-
troversies. This Constitutional barrier pre-
vents the courtt from "refereelng disputes
between the oiher two branches;" It cannot
be avoided or cra.'-cd by congressional ac-
tion, See MissUi.jppl V. Johnson, 4 Wall. (71
U.S.) 475. 500 &01 (1866). Congress cannot
legislatively ci'mpel the courts to decide a
basically non-Jusilciable Issue. Thus the In-
stant propf^ al cannot and docs not solve
the major * me Jurisdiction, Justtcla-
blUly dlle '.tclng the Ervln Committee.
Moreover, by cxpundlng Jvirlsdlctlon so radi-
cally, the Juiitlclablllty problems aunltlng
future congressional suits of this nature may
be compoimded.
With this ultimate Constitutional barrier
in mind, any Uj^islntlon, generated by the
Ervln Committee's Jurl-dlctlonal dilemma,
should be limited to resolving that specific
problem. Tlila propo -at, however, goes far
beyond such a riitlonal approach by opening
a whole new flcUl of federal Jurisdiction. It
Is not dlfUcuU to envision a virtual flood
of cont;resslonal suits against myriad execu-
tive officials and employees over the produc-
tion of Inforn^uMon and documentation In
the custody of the executive branch.
Such suits have been unnecessary In the
past, despite a long tradition of claims of
privilege by the executive branch. Why
should a unlq'.:c situation faced by a single
Senate commliiee signal the need for such
unprecedented a proposal? In apparent
chagrin over Ju«lt,e Sirica's ruling that the
federal courts lack Jurisdiction to entertain
their suit fi<;aln»t the President, the Bill's
sponsors have proposed sweeping legislative
revision of long-standing Jurisdictional
boundaries. Such hasty action is both unwise
and unnecessary. Tlie proposal should be
redrafted to limit Its applicability to the re-
quirements of the Ervln Committee.
A-'.lde from the proposal's Imprudent and
imnecesftsry brtittlth, there are specific
phrases and terms which cry out for clari-
fication. Foremost among* these Is the pro-
posal's use of the term "order." In author-
izing Congress and Its committees to petition
the courts for enforcement of "orders." In
addition to subpoenas, the proposal bi-comcs
dangerously ambiguous. Nowhere Is "order"
defined. If the term Is to be used— and Us
necessity Is doubtful— It should be dcilned
and. Lf necessary, couflixd to specific areas of
traditional conrt;c^;.lonaI power.
The language avithorlzing suit "to recure
a declaration concerning the Talldtty of any
subpoena or order" Is also obscure. It appeara
to authorize the Congress to »e*k an "ad-
visory opinion" from the courts, an exercise
In which courts have never Indulged, ritist
V. Cohen. 393 US 83. Ofi (1968). "To avoid the '
pos-slblllty of such an unfortunat* Interpre-
tation, the obvious Intent of Its drafters to
authorize suit for decliiratory Judgment un-
der 28 USC 2201 and 2202 should be clearly
and definitely stat*d.
CONCLUSlOir
{\>r 184 yeare It baa been unnecessary for
any congressional committee to file suit
against the President In an attempt to ob-
tain Presidential documents. We do not ad-
mit the necessity for such action now. That
such a suit at least has been filed, and dis-
missed by a federal court for lack of Jurisdic-
tion, Li a forceful reminder of the unprece-
dented nature of such a legal action and
the political climate which generates! it. If
legislative reform Is necessary to allow such
a suit, it should therefore be a reform which
Is tailored to the need and not a sweeping
expar\slon or revision of the Judicial role In
our tripartite system.
Thus the proposal should be limited to the
specific needs of the Ervln Committee and
should be defined and articulated In a man-
ner which avoids unfortunate end Inaccu-
rate Interpretations. To do otherwise would
be a dlsservlc* to Congress, the Presidency
and the Constitution.
[In the V3. District Court for the District
of Columbia, CIvU Action No. 1693-78]
Ordes
Senate Select Committee on Presidential
Campaign Activities, leulng in Its own name
and In the name of the United States, and
Sam J Ervln. Jr.; Howard H. Baker. Jr.;
Herman E. Talniadge; Daniel K. Inouye; Jo-
seph M. Montoya; Edward J. Ourney; and
Lowell P. Welcker. Jr.. as United States Sen-
ators who are members of the Senate Select
Committee on Presidential Campaign Activi-
ties. Plaintiffs versus Richard M. Nixon. Indi-
vidually and as President of the United
States. Defendant.
This matter having come before the Court
on plaintiffs' Motion for Summary Judgment.
and the Court having considered the memo-
randa and arguments of counsel, and the
Court having concluded for the reasons stat-
ed In the attjurhed opinion that It lacks Juris-
diction over thLs matter. It la by the Court
this 17th day of October, 1973, Ordered that
this action be. and the same hereby Is, dis-
missed with prejudice.
John J. Sirica, Chief Judge.
|Ia the US. District Court for the District^
of Columbia, CIvU Action No. 1593-73|
OPir«oM
Senate Select Committee on Presidential
Campaign Activities, suing In Its own name
and In the name of the United States, and
Sam J. Ervln, Jr.; Howard H. Baker, Jr.;
Herman E. Talmadge; Daniel K, Inouye; Jo-
seph M. Montoya; Edward J. Gurney; and
Lowell P. Welcker. Jr., as UiUted States Sen-
ators who are members of the Senate Sele^
Committee on Presidential Campaign Activi-
ties. Plaintiffs, versus Richard H. NUon, Indi-
vidually and as I»rc3ldent of the United
States. Defendant.
The Court presently has before It a motion
for summary Judgment filed i by ptalntlffa.
Plaintiffs are the Senate Select Commltteo
on Presidential Campaign Activities. esUb-
lUhed by Senate Resolution 60. 93rd Con-
gress. 1st Session (1973), and the seven
United States Senators who compose the Se-
lect Committee. Richard M. Nbion. President
of the United Stales. Is defendant. The action
Is styled "Complaint for declaratory Judg-
ment, mandatory Injunction and manda-
mus."
1103
November 9, 1973
CONGRESSIONAL RECORD — S*. .ATE
S 20133
Pacts eoncerrUng the origin of this action
are not conlrovert^d. The Senate Select Com-
mittee on Presidential Campaign Activities
(Select Committee) became a duly author-
ized and constituted committee of the United
States Senate on February 7. 1973. "empow*
ered to Investigate and study 'Illegal. Im-
proper or unethical activities' In connection
with the Presidential campaign and election
of 1972 and to determine the necessity of
new legislation 'to safeguard the electoral
process by which the President of the United
States Is chosen.' " > In the-course of Its In-
vestigatory procedures, the Select Commttte©
heard one Alexandei^. Butterfleld. formerly
a Di'puty -Assistant to the defendant. Mr.
Butterfield testified that the President had
electronically recorded conversations occxir-
rlng In various of his offices during a period
of time that Included the campaign and
election of 1972. This testimony was later
conftrmed by Presidential counsel. J. Fred
Buzhardt.*
Upon learning that among these recorded
conferences were a series which they regarded
as highly relevant to their Investigation,
plaintiffs commenced Informal efforts to se-
cure the pertinent tape recordings as well as
various written documents. Plaintiffs were
and remain convinced that the recorded ac-
count of these presidential conversations,
together ftUh written White House docu-
ments alluded to by witnesses at their hear-
ings, would undoubtedly contain informa-
tion having an Important bearing on their
Investigation and would probably resolve
critical couflJcts In the testimony of several
key witnesses.
When Informal attempts proved unsuccess-
ful, the Select Committee directed two sub-
poenas duces tecum to the defendant Presi-
dent. Both were served on July 23. 1973. and
togetlier with proof of service, are attached
as exhibits to the complaint herein.
The first required prodution of Che tape
recordings of Ave meetings which were in
each Instance attended by the defendant
President and then White House counsel.
John W. Dean. III. Other persons had also
been present during some of these confer-
ences. As noted in the subpoena, the meet-
ings occvirred on September 15, 1972. Feb-
ruary 'ia. 1973. March 13. 1973. and March
21, 1973. with two meetings on the last men-
tioned date. The second subpoena .sought doc-
uments and other materials "relating di-
rectly or Indirectly to [an] attached list of
125) individuals and to their activities, par-
ticipation, responsibilities or Involvement !n
any ftllc^-ed criminal acts related to the
Presidential election of 1972." Defendant
filed no objection to either subpoena or to
f^ervice thereof, although iti a subsequent
filing counsel have characterized the second
subpoena as oppressive. Defendant's sole re-
sponse consisted of a letter to Select Com-
mittee Chairman Senator Sam J. En-ln, Jr.,
fxpres^lng the President's Intention not to
comply with the subpoenas and the reasons
for his decision. The President's letter Is also
appended to the complaint herein as an ex-
hibit. It is understood that although the
subpoenaed tape recordings had previously
been In the custody of others, at the time
the subpoenas were Issued, and at present.
*hey are wKhln the sole possession, custody
and control of the defendant President."
Plaintiffs next proceeded to file wtlh the
Court the present civil action. They dellb-
trately chose not to attempt an adjudication
of the matter by resort to a contempt pro-
ceeding under Title 2. U.S.C. S 192, or via
Congressional common-law powers which
permit the Sergeant at Arms to forcibly
-ecure, attendance of the offending party.
Plther method, plaintiffs state, would here
be Inappropriate and unseemly. On the day
defendant filed his answer to the complaint,
plaintiffs submitted s motion for summary
judgment. A response to the motion and
other memoranda were subsequently filed,
and the matter came on for oral argument
on October 4. 1973. In their subsequent
pleadings and at oral argument, plalntlffa
have emphasized that poriion of the com-
plaint which seeks a declaratory Judgment.
It Is aj^gued that such Judgment Include the
following statements:
(1) I'bat the two subp.ienas were lawfully
Ijisued and served by plaintiffs and must be
complied with by defendant President;
(2) That defendant President may not
refuse compliance on t)ie basis of separation
of powers, executive privilege. Presidential
prerogative or otherwise;
(3) That defendant President by his ac-
tion Co d.-ite has breached the confidentiality
of the materials subpoeriaed and waived ^ny
privilege that might have applied to them.
The prayer for a mandatory Injunction
and/or relief by way of n-andamus has. been
referred to the Court's discretion and other-
wise Ignored by plaintiffs.
> The case presents a battery of Issues In-
cluding Jurisdiction, Justiciability. Invoca-
tion of the declftriit»_r7 Judgment statute,
executive privilege, waiver of privilege, valid-
ity of the Select C-jnun! tiee's Investigation,
and avithorlty of the Select Committee to
subpoena and bring suit against the Presi-
dent. Because of Its ruling, the Court has
found It necessary to coiiilder only one ques-
tion, that being whether the Court has Juris-
diction to decide LUe cii^e. The Court has
concluded, for the reasons outlined below,
that It lacks such Jurisdiction, and the ac-
tion Is therefore dkrals.sed with prejudice.
I
The Court has recently decided another
case involving some of tlic same tape record-
ings that are here at t "te.* As lt« caption
indicates, that matter cinrerned a subpoena
duces tecum Isued to the President by a
grand Jury. It was thi re ruled that com-
pliance with the suhp.cnn could be Judi-
cially required as to uuprivUeged matter and
that the Court was empowered to determine
the applicability of any privilege. Tlic case Is
presently the subject of Appellate review.
This present ca.-*, by ,'>iitest. is a civil
complaint, and in such iiL-tions particularly,
jurisdiction Is a thicit-.tu issue. Some ele-
mentary principles perhaps need restating
here. For the federal covu-ts. Jurisdiction is
not automatic and camiot be presumed. Thus,
the presumption lu each I'lstance Is that a
federal court lacks JurL^dl-.tlon until It can
be shown that a spcciru: £;rar'.t of Jurisdiction
iipplles. Federal court.g ir.Ay exercise only
that Judicial power prc/vlried by the Consti-
tution in Article IT and conferred by Con-
gress. All other Judicial [.•■ Acrs or JurL^^lctlon
Is reserved to the states ..nd although plain-
tiffs may urge otherv. i.-e. It seems settled
that federal courts ma/ .-u^sume only that
portion of the Article III Judicial power
which Congress, by jl.if.-.ic. entrusl6 l'> them.'
Simply stated. Concrc"-^ tiiay impart as much
or 3^ little of the JMcHcJal power as it deems
appropriate and the Judi:;!^!^ may not there-
after on Its own motion recur to the Article
III storehouse for additional JurisdJctdon.
When It comes to Jurisdiction of the federsd
courts, truly, to paraphrase the scripture.
the Congrc.^.s giveth, sp'! i^.e Congress taketh
away.« Finally, the pr1n.''p^e Ij firmly estab-
lished that Jvu'tsdl-t !'■■< tj rxjulrements can-
not be waived.
Footnotes at end of article.
Plaintiffs have titcd i
any and all of which, a-.c
mission, grant Jurlodictt;
ceeding to analyze these
It should be noted ti.
Judgment Act, 28 U 'i <'
and Rule 67 of the Vj
Procedure do not thc.i
diction. These statulo
if -statutory bases
rflliig to their sub-
j here. Before pro-
p.-ovl^ons, however,
. kt i^ho Declaratory
' 5§ 2201 and 2202.
: ..U RuJea of CIvU
1-.-^ confer Jurls-
ni defendant points
out, are procedural only and do not consti-
tute the Jurtsdlctional statute necessary to
consideration of a speclflc declaratory Judg-
ment action.*
One of the four statutory bases of Jurlsdlc-
tton cited by plaintiffs is 28 U-S.C. (1346
which reads:
S 1345. United States as plaintiff
Except as otherwise provided by Act of Con-
g9ff^ the district courts shall have original
Jurisdiction t^t all civil actions, suits or pro-
ceedings commenced by the United States, or
by any agency or officer thereof expressly
authorized to sue by Act of Congress. »"*
Plaintiffs have disclaimed any attempt to
cla-ssify themselves as an "agency or officer"
within the meaning of this section. Rather
they purport to bring suit In the name of the
United States. Reference, however, to com-
mon practice and related statutory provisions
belles the so'undncss of such a claim. Title
-^3 U.S.C. S 516, in language similar to that
• ■f f 1346. reserves to the Attorney General
and Department of Justice authority to litl-
';;vte as United States.
5 516. Conduct of Litigation reserved to De- .
partment of Justice
Except as otherwise authorized by law. the
conduct of litigation In which the United
?>tates. an agency, or officer thereof is a party.
nr Is Interested, and securing evidence there-
'or. is reserved to officers of the Department
">f Justice, under the direction of the At-
f.orney General.
While this section does not require a con-
i;rissIonal litigant to be represented by the
Justice Department, It does deny such a liti-
gant the right to sue as the United States
when Jurisdiction derives from S 1345.» The
practice has been otherwise and the two cases
cited by plaintiffs do not so bold.* Section
1345 is simply imappltcable here.
a
A second statute called to the Court's at-
tent'on Is 28 D.S.C. G 1361. That statute pro-
vides:
i 1361. Action to compel an officer of the
United States to perform his duty.
The district courts shall have original Jurls-
ifctlon of any action In the nature of a man-
damus to compel an officer or employee of
the Unlt<-d States or any agency thereof to
perform a duty owed to the plaintiff.
In atLcuiptlng to meet the terms of § 1361, '
plaintiffs Impute to the defendant President
■1 "legal duty to respond to and to comply
vvlth . . . ISelect CominltteeJ subpoenas."
As defendant indicates, however, the tradi-
tional criteria for mandamus proce.*dings ap-
py here " and only a "ministerial, plainly de-
fined and peremptory" duty may properly
be the subject of such proceedings.
Before such a writ may Issue, it must ap-
ptfTtr that the claim is clear and certain and
Che duty of the officer involved mut=t be min-
uter lal, plainly defined, and peremptory. -
Huddleston v. Dwyer, 10 Clr. 145 P.2d 311.
rhe duty sought to be exercised must be a
positive command and so plainly prescribed
as to he free from doubt. Wilbur v. United
States ex rel. Kadrie, 281 U.S. 206, 50 S. Ct.
320. 74L.Ed. 809."
These criteria have not been satisfied.
After reading cases that have considered
:>_ plications for mandamus, the Court can-
not In good conscience hold that any duty
i-.'endant may have as President Is "plainly
J'jflned and peremptory" as that phrase has
been Interpreted."^ Mandamus properly is-
sues to enforce such duties as that of a gov-
ernment officer to Issue a driver's or manlage
license when all liceuslng reqiilrements are
met or that of a military official to confer
■*n honorable discharge where the law so pro-
vides. In every case, official duties are In-
vi>lved. No analogous obligation appears here. ^
I'.e^ardless of whatever duty the President
ni.^y owe the Select Committee as a citizen
u I'.h evidence In his possession. It Is not
free from doubt" that his official responsibll-
1104
S 20134
CONGRESSIONAL RECORD— Sk-^ ATE
November 9, 1973
nics rfquire compliance There la nothing la
the Constitution, for example, thBt mftkcs It
an offlctAl duty of Presldcnta to comply with
Coiif^ressloiuil subpo<!na«.'*
A fair reading of S 1361 cannot suctHla
Jurisdiction here.
c
As a tfidrd stirtutory b&sts of Jurisdiction.
platr'ifl^ cite the Administrative Proccduj*
Act. 5 D-SC. tl 701-706. There U some ques-
tion whetlier the Prcstdent Is wn "agency"
for purposes of the Act." whether "agency
action" Is Involved here,** and whether
pIilMtlfTs have ^utTered a "legal wrong" with-
in the meaning of these provisions.'" A final
resolution nf these problems, however. Is un-
necessary here since the rule In this Clrcvtlt
precludes use of this Act altogt-ther as an
liKlependent basis of Jurl'KiU-tlon.'^ The Ad-
ministrative Procedure Act does not couf»^r
Jurlsilctlon where an action Is nut otherwise
cojnl^able by the federal courts. Plalntills
have uri;cd that although this was once the
rule In the Diotrlct of Columbia, the Inde-
pendent Broker 'Dealers' Trade Association v.
SEC case at 442 P. 2d 132 (DC. Clr. 1971),
cert. denu;d 404 U.S. 828 (lft72) has effec-
tively overruled the earlier p-jsltlon. The
Cotirt does not so read Indepertdcnt Broker-
Dealers. Plfilntilfs there enjoyed an Inde-
pendent b.i-sls for Jurisdiction In 28 U S.C.
I 13^1. and the ruling concerned not whether
the APA lUelf affords JurlsLllctloD but wheth-
er the SEC's Informal act was reviewable and
whether any such review might be had In
the District Court. The Court held that an
SEC letter to the N'ew York Stock Exchange
requesting that the Exchange prohlbu. "cus-
tomer-directed give ups" constituted Judi-
cially reviewable "agency action." The Court
agrees with defendant's counsel that It Is
hardly probable the Court of Appeals would
overrule Its prior decisions without any ref-
erence to them.
The Court concludes that the Adminis-
trative Procedure Act cannot serve to grant
JurKdlctlon here.
D
PJ;*lntlfrs have placed principal reliance for
purposes of jurisdiction on 28 tJSC. » 1331.
'Chat statute, often termed the "federal ques-
tion" jurl::dlcllon statute, provides In pcrtl-
iir )t part as follows:
S 1331- Federal question; amount in con-
troversy; cost«
(a> The district courts shall have original
Jurlcdlctlon of all civil actions wherein the
matter in controversy exceeds the sum or
value of JIO.OOO exclusive of Interest and
r.Ms. and arises under the ConstUvitlon,
law:; or Ire Utes of the United States.
Unlike the statutes heretofore discussed,
this provision Includes a monetary sum or
value as an Incident of Jurisdiction, the
JIO.OOO Jurisdictional amount. Although the
amount has varied over the years, defendant
Is correct In his asicrtlon that whatever the
iium. It Is a Jvirl -dictloiial prerequisite.**
The Pat!.-.f >rtlon of a minimum amovint-ln-
controver^y Is nut a technicality; it U a
rcquiretnent imposed by Congress which the
courts may not dispense with at their
pleasure.
Wlitle seme decisions have held to the
ronlr;'ry. inoet notably Spock v. David. 469
y. 2d 1047 (3rd Clr, 1972). It Is the near-
nnUcrsr^l view that a right or matter In con-
1rovcr;>y mn.st be capable of valuation la
dollars and cents lo sustain Jurisdiction un-
uitdcr S 1331. '• To the Court, this constitutes
not only the inajcrlty but the more realistic
analysis nf the nmount-ln-controvcrsy re-
quirement. Where It desires to award Jurla-
dlcilon over cases Involving Important rlghta
wllhoi ' regard to a monetary valuation, the
Congf 4 Is '"\pabie of excluding such rc-
.ilrlctluns; witness, for example, the clvU
rltjhts and elective franchise statute at 28
use. I 1343. Thua. where Congress has re-
quired ft JurLsdicttonal sum. It would seem
unwarranted for a court to pre.iume that
the limitation was unintentional.*"
The question therefore becomes whether
a quantifiable amount-in-controversy. of suf-
ficient value to satisfy the statutory mlnl-
bnum. exists here. The parties a^ree. and It
Is well settled that In determining the
amount -In-controveray, reference to either
party's situation Is appropriate, there the
c:ise Is worth at least »10,000 to the defend-
ant, the roqirlrement Is satisfied Just as fully
as where a pl.ilntlff can demonstrate the
$10,000 value or sum.
Computations measure the "value of the
object" of the SMit, Mississippi A Missouri
RR. Co. v. Ward, 2 Black (67 VS.) 485
1862), that Is the monetary value of objects
at Issue or direct monetary Impact of an
ftfljudlcatlon. The object here could be de-
<i.rlbc^ as cither the tapes and rtocumcnta
themselves or as access to the Information
cr.nta.lned therein. Since Intrliwlcally. the
tape recordings and documents do not ap-
proach a $10,000 value, we look Instead to the
value of a disposition cither granting or
denying the declaratory Judgment and other
relief sought.
Plaintiffs suggest several possible analyses
by which existence of the required minimum
value may be e.stabiiBbed. It appea^i^ to the
Court, however, that none of these proposals
sumce. Ptrst. In an affidavit of the Select
Committee Chairman appended to their Sup-^
plemental Memorandum, plaintiffs calculate
the expenses they will Incur If compelled to
secure from other sources the Information
contained In the subpoenaed materials-
TTiough the CoTirf docs not dispute this as-
sessment. It nevertheless cannot accept such
Indirect costs as the amount-ln-controversy.
Alternatives means of achieving the object of
a suit or collateral results of a Judgment are
not properly considered In computing the
Jurisdictional minimum under S 1331.*> "ITio
cost of added Committee work to ferret out
the desired Information Is quite clearly the
cxist of an alternative procedure. Nor Is the
Select Committee's appropriation of a valid
measure. The decision In Williams v. Phillips,
— F. Supp. (D.D.C. 1973. C. A. No. 490-
73), the only authority cited for this prop-
osition, contains no such holding. Plaintiffs
have not attempted to quantify the direct
Impact of a Judicial decision, and Indeed. It
appears to the Court that such an appraisal
is impossible from either party's viewpoint.
Second \3 a Eugyestion that the rights and
responsibilities of legislators exceed the $10.-
000 minimum. The restriction to a dollars
and cents evaluation of the matter In con-
troversy, however, logically precludes an as-
sumption that the value of such a right can
satisfy S 1331. The value of the right or duty
must be quantifiable.*' There must be some
financial gain or loss associated directly with
sustaining, rejecting or declaring the right.
The Supreme Court has only recently re-
minded us that In suits against federal ofll-
clals under $ 1331. "It la necessary to satisfy
the aanount-ln -controversy requirement for
federal Jurl^lctlon." Lynch v. Household Fi-
nance Corp.. 405 US. 538. 547 (1972). Any di-
rect financial consequence to rights or duties
Is not apparent In this case.
Finally, regarding value from defendant's
viewpoint, the Court cannot find any basis
on which to a.'.:.lgn a dollar value to the mat-
ter In controversy. Just as the constitutional
obligations of legislators, defendant's Inter-
est, whatever It may be termed. Is Incapable
of such an appraisal. Each of the plalntUf's
assertions, then, regarding the auiount-ln-
controversy are legally Inadequate, wad find-
ing no possible valuation of the matter
which satisfies the MO.OOO minimum, the
Couit cannot a^^Gcrt Jurisdiction by virtue
of i 1331.
No JurlMllctlonal »'.Atute known to the
Court, including the four which plaintiffs
name, wamnts an a.ssumptlon of Jurisdic-
tion, and the Court la therefore l^ft with no
alternative here but to dlamias the sctloiL
ux
Because of Its conclusion and disposltloa.
the Court docs not reach the problem of
Justiciability or the merlta of the case. Any
comment on these matters therefore Is In-
appropriate, and the Court does fiot proffer
Its views.
TTie Court has here been requested to In-
voke a Jurlsdlctlop which only Congress can
grant but which CongTe.S3 has heretofore
withheld. Whether such Jurisdiction ought
to be conferred 's the prerogative of the Con-
grc.is. Plaintiffs, of course, are free to pursue
whatever remedy they now deem appropriate,
but the Court cannot, consistent with law
and the constitutional principles that reserve
to Congress the conferral of Jurisdiction,
validate the present course.
John J. Sniit*A. Chief Judge.
October 17. 1973.
rOOINOTES
* "Statement of Material Facts as to which
there Is no Genuine Issue" filed by plaintiffs
on August 28, 1973, at 1. Counsel for the de-
fendant President acknowledged In Court on
October 4, 1973, that defendant takes no issue
with plaintiffs' statement.
> Id. at 3.
•/d. at3.
* In Re Grand Jury Subpoena Duces Tecum
Issued to Richard M. Nixon, etc., 360 F. Supp.
1 (DX»C. 1973).
' The Supreme Court and the Cotirt of Ap-
peals for this Circuit have affirmed that Juris-
diction falls "If the cause U net one described
by any Jurisdictional statute." Powell v. Mc-
Cormack, 395 U.S. 486, 513-513 (1969) citing
Baker v. Carr. 369 UJ3. 186. 190 199 (1062).
See also, Cary v. Curtis, 3 How. (44 OB.)
236. 245 (1845) and United States Service-
men's Fund v. Eastland. • P. 3d (No.
24.279 August 30. 1973> (D.C. Clr. 1973).
Reference to Article HI, } 3 alone is insuffl-
ctenL
For the contrary proposition plaintiffs cite
six decisions: New York Times Co. v. US.,
403 US. 713 (1971); Sanitary District of Chi-
cago V. US.. 266 U.S. 405 (1925); In Re Debs.
168 U.S. 564 (1895); US. v, Arlington County,
326 F2d 929 (4th Clr. 1964); U-S. v. Brand
Jewelers, Inc.. 318 F. Supp. 1293 (S.D.N. T.
1970); and US. v. Brittaln. 319 F. Supp. 1058
(N.D. Ala, 1970). None of these cases, how-
ever, holds that the government or anyone
else may Invoke Jurisdiction of the federal
courts without utilizing a specific Jurisdic-
tional statute. Each were Initially brought by
the United States and Jurisdiction appar-
enUy Invoked under 28 U.SC. i 1345. or Its
predecessor, an independent statutory base
applicable to the government.
•Job 1:31 (The Holy Bible)
•See. SkeUy OU Co. v. PhUllpa Petroleum
Co., 339 UB. 667. 671 (1950) and Aetiui LUe
Ins. Co. V. Haworlh, 300 UB. 227. 249 (1937).
•Cf., Confiscation Cases, 7 Wall (74 US.)
454, 457 (1868). It may be argued that Sen-
ate Resolution 262, 70th Congress, 1st Ses-
sion (1928) permits the Select Committee
to sue In the name of the United States here
despite the provisions of i 516. Resolution
263 states la pertinent part:
[AJny committee of the Senate Is hereby
authorl^ied to bring suit on behalf of and
In the name of the United States In anj
court of competent Jurisdiction If the com-
mittee IS of the opinion that the suit Is nec-
essary to the adequate performance of the
powers Invested In It or the duties Imposed
upon It. . . .
It occurs to the Court that there are at
least three responses which answer this
claim. First, Insofar as the Senate Resolu-
tion is Inconsistent with the provisions of
S 516, It would appear that the statute, on-
acted by both Houses of Congress, should
1105
Noveynber 9, 197S
«>ntrol over the Resolution of one House,
second any e^c-eptlon to ( 616 must be one
-authorued by Iftw." Although the question
has never been specifically litigated, It seema
apparent that "law" In 1618 would not In-
clude a legislative action of the sort repre-
sented by S. Res. 262. The term "law" does
not normally encompass within its definition
-resolution," and all recognized exceptions
to S 516. such as 10 X3B.C. \ 1037, are statute
laws enacted by both Houses. In addition,
the Supreme Court has hinted* that authori-
zation of legislative conunitUes to sue as
the United States under % 1345 may require
a specific statutory enactment. The Court In
R^ed V. County Commissioners, 277 VS. 376
(1928), dd not reach the question of whether
a Senate committee could act as the United
States under 28 U3C.*5 41 (predecessor to
28 use. S 1345), because "even if it be as-
sumed that the Senate alone may give that
authority." it had not even attempted to do
so. 277 UJ3. at 388 (italic added).
Third, and most lirportautly. the lan-
guage and historical setting of S. Res. 9.62
exact the conclusion that It was Intended,
uot to confer Jurisdiction, but to ensure
standing In lawsuits. Both parties agree
that the Senate adopted 8. Res. 262 Itt re-
sponse to the Supreme Court decision in
Reed. As Just noted, the Reed Court did not
reach the issue of statutory Jurisdiction be-
cause it found that the Senate Special Com-
mittee lacked standing. 277 VS. at 388. 8.
Res. 262 was Intended to correct that defect,
and thus It authorized committees to sue
"In any court of competent Jurisdiction."
This language traditionally means courts
that already have Jurisdiction, that are
presently competent to consider the case,
piu-suant.to some Independent statutory pro-
vLslon. It does not Itself serve to bestow
Jurisdiction.
•Plalnttiffs cited In Re Hearings by the
Committee on Banking and Currency, 245
P. 2d 667 (7th Clr. 1957) and In Re Hearings
by the Committee on Banking and Currency.
19 FJl.D. 410 (NX». III. 1956).
»«See, Senate Report No. 1992, 87th Cong.,
2nd Sess. pp. 2-4 (1962). 28 U.SC I 1361 did
not create a new or dUtlnct cause of action.
" Ftrtlrle Zand of Potawatomle Tribe of
Indians v. Udall, 355, P. 2d. 364, (10th Cir.)
cert, d-enied 385 US. 831 (1966).
"See e.g.. Harmon v. Brucker, 355 U.S. 579
(1958): McGaw v. Parrow. 472 P. 2d. 952 (4th
Clr. 1973); Spock v. David, 467 F.2d 1047
(3i'd Clr. 1972): United States v. Walker, 409
K2d 477 i9th Clr 1969) :Greffantl v. Hershey
■^98 F. F^'ipp. 553 (S.D. N.Y. 1969); Swltzer-
Innd Co. V. Udall. 225 P. Supp. 813 (W.D.N C.
1964) affd 337 P. 2d 66 (4th Clr. 1964) cert,
denied 380 US. 914 (1965).
"Plaintiffs misread the prior opinion of
this Court when they think they find a
declaration therein that Presidents have a
duty, ministerial In nature, to comply with
subpi" !ins. The Court rather stated that de-
ff iidaiifs obligation to produce unprivileged
evidence was "more akin to a ministerial
duty" than to a discretionary one, "if indeed
it concerns official duties at all." In Re Grand
Jury Subpoena Duces Tecum Issued to
Richard M. Nixon, etc., 360 P. Supp. 1, 8 n.2I
(D.DC. 1973). (emphasis added). In sustain-
ing the Court's position In that case, the
Court of Appeals for this Circuit character-
ised the responsibility of the President to
produce e\idence as one of the "routine legal
obligations that confine all citizens." Nixon
V. Slrlra.-P. 2d (No. 73-1962 October 12,
1973) (DC. Cir. 1973), at page 18 slip opinion.
" Plaintiffs cite Amalgamated Meat Cutters
k Butcher Workmen v. Connally, 337 F. Supp.
737 (D.DC. 1971), the decision of a three-
j'ulgc court Tiritten by Circuit Judge Leven-
ihal. as dcfinuivcly establishing that the
Pre-^ldent Is an "agency* for purposes of the
statute. As the Court reads that decision,
hoACver. and as defendant suggests, that
CONGRESSIONAL RECORD — bcNATB
S 20135
Issue was Bpeclflcally left open. The opin-
ion does Include the following statement
cited by plaintiffs:
The leading students of the APA, whose
analyses are often cited by the Supreme
Court, and who on some matters are In con-
flict with each other, seem to be In agreement
that the term "agency" In the APA Includes
the President— a conclusion fortlfled by the-
care taken to make express exclusion of .
"Congress" and "the Courts." 337 P. Supp. at
761 (footnote omitted).
Nevertheless, In the ueit sentence the court
writes:
• But we need not consider whether an ac-
tion for Judicial review can be brought
against the President eo nomine. 3^7 P. Supp.
at 761.
The Court of Appeals In this Circuit has
also left open this question. See, Soucle v.
David, 448 P. 2d 1367, 1078 n. 17 (DC. Clr.
\97l). Defendant further notes, "It is hard
to Imagine that a statute that excludes from
lis operation even the governments of the
territories and the Mayor of the District of
Columbia should be held to have Included,
In Its bland and neutral language, the Presi-
dent of the United States." Brief in opposl>
tlon at 33 p. 7.
""Agency action" Is defined by the statute
as "the whole or a part of any agency rule,
order, license, sanction, relief or the equiva-
lent or denial thereof, or the failure to act,"
6 UJS.C. 1551 (13). PlaUitlffs cite this lan-
guage as aptly describing "the President's
failure to turn over the evidence which the
Committee has demanded- •• * In fact,
the term 'adjudication' as defined by the
APA. could well apply to the President's ac-
tion. See 5 use. 5 561 (6 and 7).** Reply
Memorandum at 18. Defendant Interprets the
same definition as applicable only to the
"rule-making" and "formulation of orders"
functions of agencies, categories Into which
his actions do not fall. Brief In opposition at
33. 34.
" 5 U.SC. 9 702 provides:
A person sufTerlng legal wrong because of
agency action or adversely affected or ag-
grieved by agency 'action within the meaning
of a relevant statute, is entitled to Judicial
review thereof.
The plaintiffs claim a legal right of the
Committee to have Its lawful subpoenas
obeyed by the President and cite principally
Watklns v. U.S.. 354 UB. 178 (1957) and Mc-
Graln v. Daugherty. 373 U.S. 135 (1027).
Supplemental Memorandum at 27; Reply
Memorandum at 18, 19. Defendant maintains
that although plaintiffs may have cited an
adverse effect, they have not pointed to an
Illegal effect recognized by law. He cites
Senate Report No. 752, 79th Congress, 1st
Session (1945) at 26, and Kansas City Power
& Light Co. V. McKay. 225 P^d 924 . DC. Clr.)
cerf. denied 350 V3. 884 (1965). Brief In Op-
position at 34.
" See Pan American World Airways, Inc.
V. CAB. 392 P.2d 483, 494 (D.C. Clr. 1968);
Kansas City Power & Light Co. v. McKay, 225
P.2d 924, 932-933 (DC. Clr.) cert, denied 360
U.S. 884 (1955): Almour v. Pace, 193 P.2d 699,
701 n. 6 (D.C. Clr. 1951). Such Is the rule In
other circuits as well. See, eg., Arizona State
Dept. of Public Welfare v. Dept. of Health,
Education and Welfare, 449 F.2d 456. 464 (9th
Clr. 1971). cert, denied 405 JJS. 919 (1972);
Zimmerman v. United States Government,
422 F.2d 326, 330-331 (3rd Clr.). cert, denied
399 U.S. 911 (1970); Twin Cities Chippewa
Tribal Council v. Minnesota Chppewa Tribe,
370 F.2d 529. 532 (8th Clr. 1967); Chournos
V. United States, 336 F.2d 918, 919 (10th Clr.
1964); Local 542, International Union of Op-
erating Engineers v. NLRB, 328 P.2d 850, 854
(3rd Clr.). cert, denied 379 U.S. 826 (1964);
Ove GustavsEon Contracting Co. v. Floete.
278 F.2d 912. 914 (2d Clr.), cert, denied 3G4
US 894 (1960).
"See, e.g.. Holt v. Indiana Mfg Co., 176
U3. 68 (1900) and UB. ». Sayward, 160 UJ5.
493 (1806). '
"See. e.g.. Barry v. Merceln. 5 How. (46
U8.) 103 (1847): McGaw v. Parrow. 472 FJ2d
953 (4th Clr. 1973); Kheel t. Port of New
York Authority, 457 F'.2d 46 (2nd Clr. 1972);
Goldsmith v. Sutherland. 426 P2d 1395 (6th
Clr.) cert, denied 4O0 UB. 960 (1970); Rosado
V. Wyman, 414 F.2d 170 (2nd Clr. 1969). re-
ferred on other grounds 397 U.S. 397 (1970);
Rapoport v. Rapoport, 416 P.2d 41 (9th Clr.
1969) cert, denied 397 US. 915 (1970); Glan-
cana v. Johnson, 335 F.2d 366 (7th Clr. 1964)"
cert. denied 379 US. 1001 (1965).
"> Defendant states that Congress has had
before It several times legislation "rewriting
the statute to remove the amount In con-
troversy requirement In cases In which con-
stitutional rights are asserted against federal
officers," but has each time failed to enact
It. Brief In Opposition at 35.
» See, e.g.. Healy v. Ratta, 292 U-S. 263
(1934); Lion Bonding & Surety Co. v. Karatz.
262 UB. 77 (1923) ; Town of Elgin v. MarshaU.
106 U.S. 678 (1882) ; Qulnalt Tribe of Indians
V. Gallagher. 368 F. 2d 648 (9th Clr. 1966)
cert, denied, 387 UB. 907 (1967).
For the contrary propostlon plaintiffs cit«
Petroleum Exploration Co. v. Public Servlca
Commission, 304 UB. 209 (1938): Bitterman
V. Louisville & Nashville R.R., 207 UB. 205,
224^5 (1907); and Federated Mutual Imple-
ment & Hardware Ins. Co. v. Stelnherder. 268
P. 2d 734 (8th Cir. 1959). In each of these
Instances, however, parties stood to suffer
monetary losses In excess of the Jurisdictional
amount as the direct result of a Judgment.
In Petroleum Exploration it was the expense
a Maine corporation would Incur If forced to
appear and give Information pursuant to an
order of the Kentucky Public Service Com^
mission. In Bitterman, It was a railroad's
financial loss If ticket sales by brokers %ere
not enjoined. The Federated Mutual case
concerneti losses that would befall an Insur-
ance company If a former sales agent were
not restrained from competing in the Insur-
ance business for two years.
"Plaintiffs urge that Kennedy v. Snmpson
(D.D.C., C-A. 1583-72. August 16, 1973) and
Holtzman v, Richardson (E.D.N.Y., 73-C-537,
July 25, 1973) reversed, P. 2d (2nd Cir.
1973) found that the constitutional rights
and duties of legislators met the monetary
requirement of S 1331. This conclusion, how-
ever, seems Inaccurate. Kennedy did not
discuss Jurisdiction but was apparently a
I 1361 case (performance of a ministerial
duty). In Holt:,man, the object of the con-
troversy from defendants' vlewpohit (bomb-
ing In Cambodia) far exceeded the $10,000
Jurisdiction sum. As plaintiffs note, a court
In this district has apparently ruled that
the Inherent value of a constitutional right
to vote "must be equal to any amount set
for Jurisdictional purposes."
West End Neighborhood Corporation v.
Stans, 312 P. Supp. 1068 (DD.C. 1970). This
Courts however, cannot Justify a conclusion
that the Stans decision represents the law
In this or any Circuit with the possible
exception of the Third, and accordingly, with
due respect, cannot regard that precedent.
To say that constitutional rights are Inca-
pable of a monetary assessment Is not to say
that they are petty or worthless. All persons
realize, or should realize, that their value is
unsurpassed. Such value, however. Is simply
not the type Intended to satisfy the mone-
tary restrictions of | 1331. Other statutes
may grant Jurisdiction In some of these cases.
but S 1331 does not.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the substitute
amendment of the Senator from North
Carolina.
The substitute amendment was
agreed to.
Tlie PRESIDING OFFICER. The ques-
34-966 O - 74
pt, 1 - 71
1106
S 20136
CONGRESSIONAL RECORD — oENATB
November 9, 197S
tlon Is on the engrossment and third
reading of the bllL
The bill (S. 2641) was ordered to be
engrossed lor a third reading, was read
the third time and passed, as follows:
8.2041
Be II enacted hj the Senate and nouae o/
Representatives ol the United States of
America in Conjrea aixmt>lcd. That (»)
the District ttourt of the Unlte<» States for
the District of Columbia shall have original
Jurisdiction, without regard to the sum or
value of the matter In controversy, of any
clvU action heretofore or hereafter brought
by the Senate Select Committee on Presi-
dential Campaign ActWltlca. which was cre-
ated on February 7. I9T3. by Senate Resolu-
tion Numbered 60. to enforce or secure a dec-
laration concerning the validity of any sub-
poena or order heretofore or hereafter Issued
by said committee to the President or the
Vice I*resldent or any other officer of the
United Statea or any officer or employee of
any department or agency of the United
States to procure the production before the
said committee of any Information, docu-
mcnta, taped recordings, or other materlala
relevant to matters the said committee la
authorized to Investigate, and the said dis-
trict court shall have jurisdiction to enter
any such Judgment or decree In any such
dvU action as may be necessary or appropri-
ate to enforce. obedience to Itoy such sub-
poena or orders
(b) The Senate Select Committee on Pres-
idential Campaign Activities shaU have au-
thority to prosecute In Its own name or In
the name of the United States in the District
Court of the United StaUs for the District of
Columbia any civil action heretofore or here-
after brought by said conunlttee to enforce
or secure a declaration concerning the va-
lidity of any subpoena or order heretofore or
hereafter issued by said committee to the
President or Vice President or any other
officer of the United States or any officer or
employee of any department of the United
States to procure the production before the
said committee of any Information, docu-
ments, taped recordings, or other materials
relevant to the matters the committee Is au-
thorized to Investigate, and pray the said
district court to enter such Judgment or
decree In said clvU action as may be neces-
sary or appropriate to enforce any such sub-
poena or order.
(c) The Senate Select Committee on Presi-
dential Cimpalgn Activities may be repre-
sented by such attorneys as It may designate
In any action prosecuted by said committee
under this Act.
Mr. ERVIN. I move to reconsider the
vote by which S. 2641, as amended, was
passed by the Senate.
Mr. MANSFIELD. Mr. President. I
move to lay that motion on the table.
The motion to lay on the table was
agreed to.
The title was amended so as to readV
To confer Jurisdiction upon the District
Court of the United States of certain civil
actions brought by the Senate Select Com-
mittee on Presidential Campaign Activities,
and for other purposes.
Mr. ERVIN. Mr. President. I ask
unanimous ton.sent that the Secretary of
the Senate be authorized to make tech-
nical and clerical corrections In the en-
grossment of S. 2641, as amended and
passed In the Senate today.
Tlie PRESIDING OFFICEiR. Without
objection. It l.i .'o ordered.
previous order, the Chair recognizes the
distlnrulshed Senator from Arkansas
(Mr. Ptn-BRiCHT) for not to exceed 15
minutes.
ORDKR OP BUSINESS
The ACTING PRESIDENT pro tem-
r>ore. At this time, in accordance with the
DfrTENTE AND THE MIDDLE EAST
Mr. FULBRIGHT. Mr. President, as
the Middle East crisis continues. Its con-
sequences are felt beycmd the region In
concentric rings. One Immediate effect
has been the acute fuel shortage neces-
sitating the emergency measures called
for by the President in his speech of
November 7. Tlie energy crisis is by no
means solely the result of the partial
and selective Arab boycott; even the
Canadians have chosen this moment to
Increase the price of their oil. and the
United States Imports more oil from
Canada than from any other foreign
coimtry. Increased costs and shortages
of fuel will Inevitably result not only In
discomfort for most Americans and
hardship for many farmers and others
whose livelihood Is affected, but also In
shortages of other, petroleum-based
goods, shortages which will accelerate
Inflation.
The Middle East war has also provided
grist for the mill of our redouble cold
warriors, who have seized this occasion to
attack cooperation with the Soviet
Union.
This morning It was reported that the
Pentagon wUI request a $3-blIllon to $4-
billion Increase In the military budget.
The administration had already re-
quested an additional $2.2 billion to pay
for arms shipped to IsraeL
Assaults upon the merits of detente
with the Soviet Union are not only In-
flammatory but storlle. They are sterile
because the detractors seem to assume
that there Is a satisfactory alternative to
Soviet-American cooperation, when in
fact the only alternative is the cold war
with Its endless polemics, the ruinous
arms race, and periodic trips to the nu-
clear brink. It may well be granted that
Sovlet-Ameiican cooperation in the cur-
rent Middle East crisis has been less than
might ha\e been desired, but does It fol-
low that u e would be better off if there
had been no cooperation at all? The
burden of proof has been placed on the
wrong side. Instead of holding the ad-
vocates of detente to an exacting. If not
Impossible, standard, the detractors
ought to be required to show that they
have something better to offer.
I doubt that they can. although It ap-
pears that they shall have their chance.
Bowing to political reality, the adminis-
tration has abandoned for the time being
its effort to secure equal trade treatment
for the Soviet Union. It did so to avoid
a prospective congressional vote on the
Jackson amendment, which would make
both equal trade treatment and ordinary
commercial credits contingent upon free
emigration from the Soviet Union — a
blatant Intrusion upon Internal Soviet
affairs. The result is that, for the time
being at least, Soviet trade will continue
to be dlsciiinliiatcd agnlnst, and we .*all
now see how the JacVson app'oach works
for our national Interest. We shall see
specifically, whether continued trade dis-
crimination provides Icvurage for Soviet-
American cooperation in the Middle East,
and whether It will iudiue the Russians
to drop remalfilng emigration controls
and grant civil lll>ertles to Its citizens.
Perhaps the Jackson approach will
work, but If It should fall to bring the
desired results, the congressional ma-
jorities which have Insisted upon linking
equal trade treatment with Internal re-
forms within the Soviet Union may wish
to reconsider their attitude toward
detente and Intervention In Soviet In-
ternal affairs.
My own view Is that the best — and
most — we can do to advance the cause
of liberties within the Soviet Union Is
to build an lntema:,;onal atmosphere or
climate of security and confidence
through trade. Investment, cultural ex-
change, frequent political contacts, and
above all, arms control. These are also
the best we can do for world peace — and
for peace In the Middle East.
Whether or not the Soviet-American '
encounter of October 24 and 25 qualifies
as the "most dlfBcult crisis" since the
Cuban missile crisis of 1962 as President
Nixon said. It was serious enough to
point up the surpassing Importance of
Soviet-American cooperation in matters
of world peace, and also to point up the
Interest of all nations In the resolution
once and for all of the Arab-Israel con-
flict which brought the great powers to
the crisis of late October. The tempta-
tions to recrimination are strong : Presi-
dent Nixon may have overreacted with
the military alert, but that Is over and
done with, and the crisis ended with the
joint Soviet-American sponsorship, of the
United Nations emergency force to su-
pervise the truce.
It Is also being widely contended that
the mere threat of unilateral Soviet mili-
tary Intervention in the Middle East
proves the hollowness of detente. Are
we to conclude that a cold war stance
would have served us better? Would the
Soviets have shown greater restraint
and good faith if our relations were still
frozen as In Stalin's time? It seems
hardly likely. Instead of dismantling the
detente, the logical implication of the
crisis of late October is the need to
stieiiythen Soviet-American cooperation.
Tlie fact that detente is fragile does
not mean that it Is futile. Quite the con-
trary; every time the two great nuclear
powers come to a point of confronta-
tion, the necessity of detente Is rein-
forced. What the detractors cannot ■seem
to get through their heads is that there
is no alternative except endless conflict.
We and the Russians have to get along
with each other, because In matters of
world peace, neither can get along with-
out the other.
I imdeiilne that by reiterating the ex-
istence of nuclear warfare, the nuclear
arms about which we have talked so
much In this body.
Perhaps there has been some misun-
derstanding of the meaning of detente.
It does not mean that the two super-
powers have come to see everything eye
to eye; on the contrary. Ke remain politi-
cal rivals with Inimical political systems.
Detente. In its essence. Is an agreement
not to let the.se differences explode into
nuclear war. We may hope to mitigate
our Ideological differences through time
and luiman contact, but we dare not force
the pace lest we undercut the purpose of
1107
I 10184
CONGRESSiqjVAL RECORD— HOUSE
December S, 197S
'he iegitlmale claims of those who op-
.-o^ed selting aside any area and those
favored a smaller preserve,
he uniqueness of the Big Thicket can
casilj be seen In the committee report
uhlm makes available to the Me/ribcr^
of the House pictures showing Jne re
markable character of the area.
TheVgentleman from Texats (Nfr.
Kazen) yias been extremely euecllve In
the InteMor Committee In advancing the
Big Thlciket proposal and I am person-
ally appreciative for the /nformatlon
and advice^he has given mt In this re-
gard.
The samA Is true for jflr. Sieelman,
who is aIso\a member fl the Interior
Committee and who is ai/ong those most
responsible fot bringing about the final
bill that obtained thff backing of the
committee and\ hopef\/ly. Its passage by
the House today.
The SPBIAKER prrf tempore (Mr! Mc-
F*ll). The quesVioa Is on the motion
offered by the gemJeman from North
Carolina^ (Mr. Ta*lob) that the House
suspend the rules atid pass the bill H.R.
11546.
Tlie question fcas\ taken; and — two-
thirds having voted In favor thereof-
the rules wcre/suspenfled and the bill
was passed.
A motion tojf-econsldeX was laid on the
table.-.
ENERAL LEAvE
Mr. TAVlOR of North aarolina. Mr.
Speaker, r ask unanimous consent that
all Members may have 5 legiMative days
in whlclr to revise and extend their re-
iiiarks Immediately before the \\ssace of
t'lebll/HR. 11546.
Tho'SPEAKER. Is thcie objoVtion to
ihe request of the gentleman fror)\ North
Carolina?
There was no objection.
CONFERRING JURISDICTION ON
OS. DISTRICT COURT FOR DIS-
TRICT OF COLUMBIA OF CER-
TAIN CIVIL ACTIONS BROUGHT
BY SENATE SELECT COMMITTEE
ON PRESIDENTIAL CAMPAIGN
ACTIVITIES
Mr. KASTE.N-MEIER. Mr. Speaker. I
ir.ove to suspend the rules and pass the
."Tenate bill (S. 2641) to confer jurisdic-
tion upon the district court of the United
elates of certain civil actions brought
1.J the Senate Select Committee on Prcs-
i 'ential Campaign Activities, and for
I her purposes.
The (Tlerk read as follows:
3. 2641
Be it enacted by the Senate and House of
Jiepresentatitcs o/ the United States of
America in Congress assembled. That (a) the
District Court of the United States for the
District of Columbia shall have original
Jurisdiction, without regard to the sum or
value of the matter In controversy, of any
civil action heietofore or hereafter brought
by the EcMa'e Select Committee on Presi-
dential Cftmptiign Activities, which was cre-
6tc-d on February 7. 1973. by Senate Resolu-
tion Numbered 60. to enforce or secure •
declaration concerning the validity of any
subpoena or order heretofore or hereafter
Issued by said Committee to the President or
the Vice President or any other officer of the
United States or any olSce^ or employee of
any department or agency of the United
Slates to procure the production t>efore the
said Committee of any Information, docu-
ments, taped recordings, or other materials
relevant to makers the said Committee is au-
thorized to li^vestigate, and the said District
Court shall have Jurisdiction to enter any
sufh Judgment or decree In any such civil
action as may be necessary or appropriate to
enforce obedience to any such subpoena or"
order. . -.' , ,_
(b) The Senate Select Committee on Pres-
idential Campaign Activities shall have au-
thority to prosecute in its own name or In
the name of the United States in the District
Court of the United SUtes for the District
of Columbia any civil action heretofore or
hereafter brought by aald Committee to en-
force or secure a declaration concerning the
validity of any subpoena, or order heretofore
or hereafter Issued by aaid Committee to
the President or Vice President or any pther
.officer of the United States or any ofBcer or
employee of any department of the United
States to pr^ure the production before the
said Commltlee of any Information, docu-
ments, taped recordings, or other materials
relevant to the matters the Committee le
authorized to Investigate, and pray the .said
District Court to enter such Judgment or
decree In said civil action as may be neces-^
sary or ' appropriate to enforce any such'
subpoena or order. -■-T^'^ — •' '■■■'' -" i
(c) The Senate Select Committee on Presi-
dential Campaign Activities may be repre-
sented by such attorneys as It may designate
In any action prosecuted by said Committee
" under this Act. _ ■ . '.;
The SPEAKER. Is a second demanded?
Mr. McCLORY. Mr. Speaker. I demand
a second.
The SPEAKER. Without objection, a
second will be considered as ordered.
There was no objection.
Mr. KASTKNMEIER. Mr. Speaker, I
yield myself such time as I may con-
sume.
The purpose of S. 2641 Is to confer
upon the U.S. District Court for the Dis-
trict of Columbia jurisdiction over clvU
actions brought by the Senate select
committee on Presidential campaign ac-
tivities to enforce — or secure a declara-
tion concerning the validity of — any sub-
pena or order issued by the select com-
mittee to the President, Vice President or
other Fedreal officer for the production of
information relavant to the committee's
function. The select committee Is given
authorization to prosecute such actions
to enforce — or secure a declaration con-
cerning the validity of — such subpenas
and orders heretofore or hereafter Is-
sued by It, and may be represented by
such attorneys as It may designate In
any action tmder this act. •■ '
S. 2641 was introduced by Senator
Ebvin, chairman of the Senate Select
Committee on Presidential Campaign .Ac-
tivities on November 2, 1973, and was co-
sponsored by all the committee mem-
bers. It passed the Senate in amended
form on November 9, 1973.
The legislation is needed because, on
October 17. 1973, Judge John J. Sirica of
the U.S. District Court for the District
of Columbia dismissed an action brought
by the select committee to enforce its
subpenas requesting certain tape record-
ings which were in the possession of the
President The dismirsal followed a find-
ing that there is no stalut,e upon «hich
the suit could be based. Judge Sirica
stated in his opinion:
The Court has here been requested to
Invoice a Jurisdiction which only Congress can
grant but wblcb Congress has heretofore
withheld. ^ - • ' -
S. 2o41 would provide the necessary
Jurisdiction to the district court.
As respects the procedure chosen by the
select committee. Judge Sirica observed
that Uie select committee deliberately
chose not to attempt ain adjudication of
tl^ matter by resort to a contempt pro-
ceeding under title 2, UiUted States Code,
section 192, or via congressional common
law powers which permit the Sergeant atf
Arms forcibly to secure attendance of the
offending party, and that the select com-
mittee declared that either method would
be "Inappropriate" and "unseemly."
In dismissing the select committee's
suit for lacK of Jurisdiction, Judge Sirica
pointed but that in light of this lack of
Jurisdiction he did not reach the problem
of Justiciability or the merits of the case
before him. It Is Important to note that
enactment of S-. 2641 will supply lacking
Jurisdiction but It will leave unresolved
any issue of Justiciability or any Issue
on the merits. -. ' ..^ '— / " ' ....
As originally Introduced. S. 2641"was
broader in scope than the measure that
passed the Senate and Is now before us.
It would have given every congressional
committee pow6r to bring comparable
suits. Ilie present measure results from
an amendment in the nature of a sub-
stitute Introduced by Senator Ervim at
the suggestion of Senator Hroska and
approved by all members of the select
committee, which restricts the applica-
tion of the bill to subpenas and orders
of the select committee..
Although the select committee may
eventually prevail in the pending litiga-
tion, it is desirable that the question of
jurisdiction be resolved now by legisla-
tion needed to enable the select commit-
tee to obtain information related to its
Investigation. For the same reason, the
Committee on the Judiciary does not at
this time make any recommendation con-
cerning H.R. 11189, a bUl Identical to
S. 2641 as introduced. The committee
does not wish to sustain the delay that
enactment of a broader bill might entalL
Let me repeat: The bill creates Juris-
diction in the district court over suits
brought by the Ervin committee for en-
forcement of its subpenas or adjudica-
tion of their validity and It authorizes
the committee to sue for such enforce-
ment or adjudication. That Is all the
bill does.
Here is what the bUl does not do:
It does not apply to any committee
other than the Ervin committee. . - -
It does not deal with Judiciability or
other issues on the merits.
It does not entail expense.
It was adopted by the Senate and by
the Judiciary Committee without dis-
senting voice. ' . , "-
Mr. Speaker, I urge favorable con-
sideration of S. 2641.
Mr. GROSS. Mr. Speaker, will the
gentleman yield?
Mr. KASTENMEIER. I yield to the
gentleman from Iowa.
F
1108
December S, J97S
CONGRESSIONAL RECORD — HOUSE
Hiatss
Mr. GROSS Mr. Speaker, the author-
ity that this would give to the Senate
select committee, when would that
expire? Would It end with the expira-
tion of the committee, or U there any
expiration date? •
Mr. KASTENMEIE31. Tt would expire
with the expiration of the committee. We
are told that the committee U due to
expire February 28. 1974. >
Mr. GROSS, Mr. Speaker. I thank the
gentleman. • ' ' . '.
■ ' Mr. McCLORY. Mr. Speaker. I yield
myself such time as I may consume.
Mr Speaker. I had considered oppos-
ing this legislation. I certainly want to
question the wisdom of Its enactments ^'"""i;""' "."ir'i'i"'JX'.'^IX;i'"l' «priou"J
?-L. „,.,,. ini.>rp^t «nrt pvrii.>m,.nt .hirh » capacity raises In my mlnd,a serious
I believe this check serves ^valld pur-
pose. We are being asktd to*orcgo this
check and vest unprecedented authority
In the Senate select committee. I would
Uke to seriously caution the House
against setting such a precedent.
Mr. Speaker. I firmly bellive tha(t<4he
Congress should enforce Its own proc-
ess. The Senate select commlU^t made
no attempt to try to use eslaUlshed pro-
cedures for enforcing cotiCii^pce. but
Instead Is asking u; to place tfie cpurt In
this dilBcult and unwanted positidn. I am
referrtng to refereelng a dkpute between
the executive and legislative branches of
the Government.
To permit the court to function In such
The great Interest and excitement «h)fh
surrounds the Senate Watergate Com-
mittee, may lead many to conclude that
anything emanating from that commit-
tee Is supposed to be sacrosanct and
should yield to Immediate support.
Mr. Speaker. I would like to call atten-
tion to the fact that many Presidents
have l>een subpenaed and, have been
served, with subpenas and subpenaa
duces tecum ever since the. time of
George Washington by committees of the
Congress. In the late I»resldent Tru-
man's letter to a committee of Congress-
declining to honor a subpena, he called
attention to the fact that ^bpenas and
subpenas duces tecum had been Issued
to Presidents Washington. Jefferson,
Monroe. Jackson, Tyler, Polk. Fillmore,
Buchanan, Lincoln, Grant, Hayes, Cleve-
land, Theodore Roosevelt, CooUdge,
Hoover, and Franklin D. Roosevelt, with-
out the need for any such legislation as
we have here today.
The Congress has always had ample
power to enforce Its own subpenas.
and as the gentleman on the other side
of the aisle who sponsors tliis legislation
has brought out. we certainly have that'
authority right now. and this enforce-
ment can be compelled by the Sergeant
at Arms through our common law au-
thority or thorugh sections 192 and 194,
title 2, United States Code.
I raise two primary questions regard-
ing this legislation. One Is that It Is prob-
ably unnecessary because the Seriate
Watergate Committee has deferred Its
further activities and probably will not
reconvene until they get together to write
a report; and clearly. It Is unprecedented.
It works contrary to the role of the Judi-
ciary In oui constitutional system.
This legislation places unfettered dis-
cretion In four Members of the other
body to issue any subpenas or orders
which It believes necessary for Its in-
vestigative purpose and to direct sub-
penas to the President, the Vice Presi-
dent and other officers of the United
States as they see fit -
As \ understand the existing provisions
of UUe 2 of the United States Code,
sections 192 and 194, and as we all know,
the full House and Senate trnve con-
sistently considered and occasionally
debated at great length measures author-
izing the Speaker of the House or the
President pro tempore of the Senate to
certify contempt proceedings to the
proper U.S. attorney for action by the
grand Jury. Under this procedure, each
body Is i>em-,tted to screen the activities
of committees.
constitutional quesUo^i In regard to ar-
ticle m. section 2. which- requires that
the Federal court's Jurisdiction be lim-
ited to "cases and controversies." This
question Involves a complicated specialty
of Federal Jurisdiction. I would like to
point out that hearings on this bill were
not held in the other body nor were hear-
ings held in this body. '
Finally, Mr. Speaker, I fall to under-
stand the urgency of this legislation,
when the Senate select committee has
postponed any further hearings until
next year and, according to newspaper
accounts, the select committee may be
out of business altogether.
Mr. Speaker, I seriously question the
need for enactment of this legislation,
and I question, also, the wisdom of our
taking any such action.
(Mr. McCIiORY asked and was given
permission to revise and extend his re-
marks.) ' - ■
The SPEl^KER pro tempore. Does the
gentleman from Wisconsin (Mr. Kasten-
MEiER) desire to yield time*
Mr. KASTE^f^rEIER. Not at this time,
Mr. Speaker.
Mr. McCLORY. Mr. Speaker. I yield
5 minutes to the gentleman from Illinois
(Mr. Rmlsback).
Mr. RAILSBACK. Mr. Speaker. I rise
In support of S. 264i. which confers juris-
diction upon the District Court of the
United Slates for the District of Colum-
bia over certain civil actions brought by
the Senate Select Committee on Presi-
dential Campaign Activities. I am ad-
vised that the Department of Justice has
no objections to this bUL
Frankly, I had some questions about
this bill when I first heard about It. but I
think there Is a valid reason for it.
Presently Congress has two methods of
forcing compliance - with Its subpenas:
One Is Its Inherent common law author-
ity; the other Is Its statutory authority
under title 2, United States Code, sec-'
tions 192 through 194. It Is significant
that both methods are forms of criminal
contempt — and I emphasize the word
"criminal. " ■>
S. 2641 provides a third remedy, which
Is civil In nature and very limited in its
application ^
Right now Congress has the common
law pov.er to conduct Jts own trial of
the contempt of witnesses before Its com-
mittees. A person adjudged In contempt
of Congress under this procedure may,
under an order of the particular House
Involved, be subjected to one of three
things: V
First. The Individual >vho lefuscd to
obey the subpena can be repulred to be
contained In close custody By the Serge-
aat at Arms;
Second. He can be committed to »
common JaU In the District of Columbia;
or' •'
Third. He can be kept by the Sergeant,
at Arms In close confinement In the
guardroom of the Capitol Police.
' Confinement under the common law
procedure, as one can Imagine, has not
been used extensively. That means that
It has become more common to utilize
the slAtutory provisions contained In
title 2, under section 192.
Now, here Is what happens; here Is
the procedure, when we use section 192,
which." we must remember, deals with
clvU contempt only and not criminal
contempt:
It Is required that the particular com-
mittee Involved will certify to the Presi-
dent of the Senate or the Speaker of the
House, If they are not in session, or to
the body as a whole If In session that
somebody has refused to obey one of Its
subpenas. -
Then tlie Speaker or the President pro-
tern Is required to certify to a U.3. at-^
tomey the question of contempt. - . "-
The U.S. attorney then will present
the matter to a grand Jury. If the grand
Jury should return an Indictment, then ,
there would have to be a trial. Then If
the Individual subpenaed. In this case
the President of the United SUtes, the
Chief Executive of the United States,
should be found guilty. It Is required '
under section 192 that he would be
punished by a, fine of not more than
$1,000 nor less than $100, and that he
be Imprisoned In a common Jail for not
less than 1 month nor more than 12
months
Mr. McCLORY. Will the gentleman
yield to me?
Mr. RAILSBACK. Let me finish the
theme of this first.
The Idea Is that In the case of the
PrcsMent of the United States the Sen-
ate select romiiiittee. compri-scd of all
Members. Including Republicans and
Democrats, thouglit it would be unseemly
to subject the President of, the United
States t6 that kind of an alternative,
and I am Inclined to agree with them.
I now yield to the gentleman from
Illinois.
Mr. McCLORY. I thank the gentle-
man for yielding.
I would like to ask this: It seems to
me since that the existing legislation In-
, volves a criminal proceeding and pur-
ports to charge the President with the
commission of a crime, as would be re-
quired under the' existing statute and
pursuant to the actions that have been
initiated by the Senate select committee,
this House should be assuming "Jurisdic-
tion. Indeed, the entire action of the
Senate select committee seems to be
directed against the President of the
United States. . , ,
In other words. It seems to me th.it
our House Judiciary Committee's inquiry
Into the question as to whether or not
Impeachable offenses have been chareod
against the President establishes lli.it
the piop( r forum Is the HouJe o( Rer.e-
scLitatives.
If w- cp'.-t Ihls kslslation. It ifjls
further .,iith. ity '.u t'le Senate f-l^ct
1109
H 1(J486
CONGRESSIONAL RECORD— HOUSE
December S', 19 7 S
commilte* to assume thU role and to
usurp our authority to Investigate the
various charges against the President
and ehibles Ihciii to go forward with tjils
activity. I think that Is quite' Inappro-
priate: . ■ '
The SPEAKER. Tlie time of the gen-
tleman has expired. " '
Mr. McCLORY. I >ield the gentleman
2 additional minutes.
Mf. RAILSBACK. Let me respond. I
maj not agree with all of the activities
of the select conunittee, but let us pot
deceive ouisclves; they did subpena cer-
tain docmiients and requested certain In-
. formation, Including tapes. Those were
not turned over voluntarily by the Presi-
dent of the United States. The court or-
dered that they had to be produced In
the case, of the Special Prosecutor, but as
far as the Senate select committee Is con-
cerned it said they did jpot have juris-
diction to demand that they be pro-
duced. ' ■ ''. . ■ •_■ ' ■ '■' ■ .
■ Let me make It clear that the two de-,
vices used now for getting the President
to turn over documents. If he should
refuse to do so, provides for criminal
contempt. Let me make It clear that tJJs
bill provides for civil contempt. That
Is one of the purposes of tliis bUL
Mr. McCLORY. The House Judiciary
Conuiilttee would not be hamstrung by
any limitation under existing law Inso-
far as our Inquiry Is concerned, would It?
_Mr. RAILSBACK. As far as I know," we
' have not .even begun the inquiry. As I
understand It, you have only these two
devices, both of wliich are criminal in
nature.
Mr. McCLOKY. And they would be
available to us?
Mr. RAILSBACK. Yes; except that you
have to go to the U.S. attorney, and then
It goes to a grand jm-y process and trial.
If that trial should hold against the
President of the United States, he has to
be coiifined in jail for 1 month under
that statute, which the committee does
not want to go through.
Mr. McCLORY. Mr. Speaker, I yield
mjself such time as 1 may consume.
Mr. Speaker, there seems to tie a popu-
lar demand for legislation to enlarge the
. authority and expand the activities of
the Senate Watergate committee. The
question in my mind is whether they are
Impinging upon the rightful role of the
Jlouse of Representatives in coimectlon
with their present inquiry. The excuses
they give for not exercising the subpena
power already granted by statute Is that
they regard the existing remedies as un-
seemly. It appears to me that they may
Indeed t>e unseemly, but that does not
seem to me to justify some extraordinary
temporary remedy just because of the
popularity of the activities of this com-
mittee which have been publicized so
much on television and in the press. '
I regard it as a bad precedent for us
to capitulate on constitutional issues—
and on matters of principle when such
circumstances exist. The Senate com-
mittee has statutoi7 remedies at the
present time, and if they are not suffi-
cient and the cliarges against the Presi-
dent are so serious as to require sub-
penas duces .tecum against the Presi-
it seems to me that the House itself
ought to exerdse the authority It has
under the constitutional authority 'of
Irapeachmeht, and not to surrender this'
J\inction to this select committee of the
Senate to try the President before we
have undertaken our Investigation to
determine the existence or absence of so-
called Impeachable offenses.
(Mr. McCLORY asked ahd was given
permission ' to revise and extend his
remarks.) ' ^ \ ' - t •"• •- •••'
Mr. KASTENMEIER. Mr. Sp^ker. I
have no further requests for time.
Mr. RODINO. Mr. Speaker, I rise In
support of S. 2641. What this bill does Is
to give the Senate and its Select Water-
gate Committee their daj In court. If the
situation were reversed and a House Se-
lect Committee were being frustrated to ■
the enforcement of Its subpenas because
of the alleged lack of a duly authorlSd
and appropriate forum for determination
of their validity, I ara sure we would all
hope that the Senate would support our
efforts to supply the lack. ■ '
As I understand It, Judge Sirica In the
District Court dismissed the Watergate
Committee's suit to enforce or determine
the validity of its subi^enas. In so doing
Judge Sirica declined to decide a whole
host of Issues, Including such Issues as
Judiciary Committee without hearings or
extensive consideration. .• •
The Joint Committee on Congressional
Operations, of which I am vice chairman,
has been conducting a detailed study of
litigation affecting the Congress, Includ--.
Ing the issuance of congressional sub-
|?enas and their enforcement. " ' .
Many of us on the committee have
been concerned over the increasing tend-
ency of the courts to entertain litigation
Involving 'the judicial review of_ legisla-
tive decisions. --'.- .■ - '
S. 2641 invites the courts to enter legis-
lative areas by a congressional committee
seeking a decision of the court passing
on the validity of a congressional sub-
pena. It also establishes the precedent
of ^vlng standing to sue to a Senate
committee and authorizing It to employ
lis own counsel to commence a civil
action either In Jhe name of the com-
mittee or the name of the United States.'
When a legislative body appears before
the courts as' a party litigant. It appears
to concede the superiority of the judicial
branch In becoming a supplicant before
It. This is In derogation of the autonomy
and independence of the legislative
branch and is an imdesirable precedent.
Both the House and the Senate possess
justiciability, executive privilege, and the the subpena power and the contempt
lit. v.„,„.. V. ...J .... ... "power. In fact, the Senate Campaign
Activities Conunittee did Issue and serve
a subpena on the 'President for the pro-
duction of certain documents. Including
tapes of conversations. In the possession
of the President. The proper proceeding
to enforce a subpena against a recalci-
trant witness is on order of the Senate
to the Sergeant-at-Arms, In this case, to
apprehend any person defying the order
of the Senate and to bring him before the'
bar of the .Sena to to show cause why he
should not be held In contempt of the'
Congress.
An alternative method of enforccnicnt
is to proceed under title 2 United Suites
Code sec. 192, by refciring the proceed-
ings ijivolving tlie couteinpt to the U.S.
Attorney for prosecution as a miii ;-
meanor. rhe latter pijcetiiing wo'ild
seem to be impractical because the ' S.
Attorney and the Department of JusI ire
would be requested to proceed asaiusl
their superior, the President.
It is probable that It would be diffitult
to achieve a consensus of the Senate to
proceed in the abrupt fasliion suggested
first, namely, the apprehension of the
contumacious ofBciaL This contempt
power of the Senate was last employed
in 1935 In Jurney v. McCracken, 294 U.S.
125.
The question necessarily arises what
Would happen, even if this bill becomes
law over a presidential veto, 11 the Presi-
dent should choose to disregard a declar-
atory judgment of the District Court If
he declines to comply with a Senate sub-
pena, why should he do otherwise with
respect to a declaratory judgment of »
district judge? ,
The foregoing .ketchy discussion, at
this point, serves only to Indicate the se-
rious constitutional problems underlying
the bin which deserve penetrating study
by the Congress.
TJie SPEAKER. The. question is OB
the jnotion offered by the gentleman
like, because he regarded the absence of
a statute granting Jurisdiction to the
court as conclusive. The decision Is pend-
ing on appeal. Meanwhile, enactment of
S. 2641 would restore these Issues to
adjudication by supplying the lacking
JurisdictlorL The measure empowers the
U.S. District Court for the District of
Coluipbla to entertain actions to enforce
or validate Watergate Committee sub-
penas and authorises the committee to
use that court to litigate the enforcement
and enforceability of its subpenas.
Tlie urgency of perfecting the author-
ity of the select committee is evident.
Tlie committee cannot perform its inves-
Jtigative function if it carmot enforce its
subpenas. Enactment of S. 2641 is needed
to remove the threshold obstacle to a de-
termination of the substantive Issues
which Judge Sirica declhied to decide.
Pursuant and conclusion of the Water-
gate hivesUgaUon Is critical to the resto-
ration of our people's confidence In the
Federal Government. It Is unthinkable
that the Senate Select Committee should
be denied a determination of the enforce-
ability of Its subpenas simply because
Congress has failed to provide a forum.
We should enact S. 2641 at once.
Mr. BROOKa Mr. Speaker, I do not
Intend to oppose the motion, but I have
misgivings concerning this legislation
which would authorize the Senate Select
Committee on Presidential Campaign
Activities to commence a civil action In
the U.S. District Court for the District
of Columbia for the enforcement of Its
subpena for the production of certain
materials, including tapes of conversa-
tions, in the possession of the President.
The measure involves' certain basic
constitutional problems which were not
given adequate consideration either In
the Senate, where the bill was amended
and adopted without being referred to
coinmiltee, or herejn the House, where
the bill was favorably reported by our
1110
December S, 1973
CONGRESSIONAL RECORD— HOUSE
H 10487
from Wlscon; n (Mr. Kastenmeicr) that
the House suspond the rules and pass the
Senate bins 2641. , / .
The question was taken; and (twb-
thlrds having voted In favor thereof) the
rules were suspended and the Senate*!!!
was'passed.
■ GENERAL LEAVE
Mr. KASTENMEIER. Mr. Speaker. I
ssic unanimous consent that all Mem-
bers may,have 5 legislative days In which
to revise and extend their remarks on
the Senate bill. 3. 2641, Just passed.
The SPEAKER pro tempore. (Irfr. Mc-
Fail). Is there objection to the request
of the gentleman from Wisconsin?
TTi^re was no objection. - / .
POSTPONEMENT OF HEADSTART '
FEE SCHFJ3UUB ^
Mr. PERKINS. Mr. Speaker. I move
to suspend the rules and pass the bill
<H R. 1144U to postpone thelmplemen-
tation of the Headstart fee schedule.
The Clerk read as follows:
H.R. 11441
Be it enacted by the Senate and ffotise o/
Bepresentattvet of the United Statet of
America In Congress assembled. That the last
senUnce of section 222(a)(1) of the Eco-
nomic Opportunity Act of 1964 Is amended
to read as follow*; "The Secretary shaU defer
the Implementation .ol a fee schedule e«-
tabllshed under this paragraph'iintll July 1,
1976.-.^ " .
The SPEAKER pro tempore. Is a sec-
ond demanded?
Mr. STEIGER of Wisconsin. Mr.
Speaker, I demand a second.
The SPEAKER pro tempore. Without
objection, a second will be considered as
ordered.
There was no objection.
Mr. PERKINS. Mr. Speaker, I yield
myself 5 minutes.
(Mr. PERKINS asked and was given
permission to revise and extend his re-
marks.) ' ■
Mr. PERKINS. Mr. Speaker, I would
like to take this opportunity to flrst,
congratulate our colleague from Cali-
fornia (Adcustus F. Hawkins), chair-
man of the Eqiial Opportunities Subcom-
mittee for his vei-y prompt and respon-
sive action to deal with the problem of
the Headstart fee schedule. "ITie bill was
reported from the committee imanl-
mously by voice vote and has strong bi-
partisan support.
The bill before us today Is very simple.
Upon enactment the Secretary of Health,
Education and Welfare Is directed to
defer the . Implementation of the fee
schedule for the Headstajt program until
July 1, 1975.
The Economic Opportunity Act
Amendments of 1972 required the Sec-
retary of Health, Education and Wei-'
fare to establish a schedule of fees for
the Headstaii. program. It was my Judg-
ment that this fee schedule would have
resulted In allowing those families who
exceed the Income limitation of the act
to parUcIi>ate In the Headstart program
at a nominal cost. This expectation Is-
consistent with the way the Headstart
program has been run In the past, and
I anticipated the Headstart program to
expand to Include more of the near poor.
What has happened Is that those previ-
ously eligible for participation In the pro-
gram are now being asked to pay a fee
and they are being forced to drop out be-
cause they are unable to pay these fees.;
The committee has been advised by 1^
Office of ChWd Development that there
has been an Increase In administrative '
problems since the Introduction of t)*e«
fee schedule. Some local Headstart pro-
grams are refusing to collect fees. In
other programs the fee schedule has
caused friction between the poor and the
near poor .and the cost of collecting the
fees are actually far greater than the fees
being collected. . - , - -"
Therefore, Mr. Speaker, this bill accom-
plishes two worthwhile goals. First, It
postpones the fee schedule until the Con-
gress has an opiwrtunlty to hold some
additional hearings In light of the experi-
ence we gained; and second, It restores
the program to Its former successful
operation. '
It Is my Judgment that the Secretary
of Health, Education, and Welfare should
Immediately Inform all Headstart pro-
grams that the regulations of August
1973 which Imposed the fee schedule are
due to be rescinded and he should cease
any activities with regard to collecting
fees that may have been assessed while
the fee schedule was In effect. '
Mr. Speaker, I know of no objection t^
the postponement of the fee .schedule. It
will make the program work better and
will bring about more participation.
Mr. STEIGER of Wisconsin. Mr.
Speaker, I yield myself such time as I
may consume.
(Mr. STEIGER of Wisconsin asked and
was given permission to revise and ex-
tend his remarks.)
Mr. STEIGER of Wisconsin. Mr.
Speaker, let me make sure that It is
clear that passage of this bill to post-
pone the establishment of tlie Head-
start fee schedule In no way should be
taken or read as opposition per se to the
concept of a fee schedule. Rather, It Is an
effort to give both the Congress and the
administration more time In which to
more carefully calculate exactly what the
effect Is going to be when^we establish
this kind of fee schedule.
I think the bill Is a good one and it
ought to be supported.
'Mr. Speaker, considerable concern
from various quarters has accompanied
the Implementation of the Headstart Fee
Schedule, Instituted In August of this
year. The schedule imposes a monthly fee
on the participants In the program who
come from families with* annual incomes
above the defined Jwverty level of $4,320.
The concept of the fee schedule was
originally proposed within the context
of the comprehensive child development
bill as a means of,openlng the legisla-
tion to children of all backgrounds. That
proposal was Incorporated into the Equal
Opportunity Act Amendments of 1972.
Following the Presidential veto of the
bill, the child development section was
deleted during reconsideration, but th«
fee schedule was retained and attached
to the Headstart program.
The pursuant application of the fee
schedule has sparked a sizable contro-
versy among those who felt It to be an
Inaptuvprlate attachment to a program
oriented -K) the poverty sector, such aa
He&dstart.
SliVce the participation of the non-
poor in the Headstart program has been
limited to 10 percent of all partlclpanta,
only a small minority of those enrolled
In the program are affected by the fees.
This arrangement has apparently fost-
ered resentment^ and caused some fric-
tion between the participants on opposite
sides of the poverty line.
There are strong Indications that non-
poor parents whose children were previ-
ously eligible for the program are now
hesitant to eijroll their children in Head-
start because of a fee which they con-
sider to be exorbitant Consequently. .
there has been an estimated 50 percent-
dropoff In the enrollinent of children
from nonpoor families. At this point, par- » ^
ental Income. end not the child's needs-
becomes the prime determinant in pro-
gram enrollment,' a situation which runi
counter to tJie goals of Headstart
Aside from the problems which the fee.
schedule has created for some partici-
pants, the value of the schedule to ths
program Itself has also proved question-
able. Preliminary evidence from the Of-
flc'e of C!hild t)evelopment Indicates that
the cost of administering the fee sched-
ule has proven to be greater than the fee«
collected. Because of the difficulties thej .
have encountered. It has been reported
that several Headstart units have aban-
doned their efforts to collect the fees en-
tirely.
.The objective of the foe schedule to
create extra funding for local Headstart
projects is clearly not being achieved. In-
deed, by forcing lower income families .
who are nonetheless above the stated '
poverty line to remove their children
from the program, the current applica-
tion of the fee schedule seems to be
counterproductive.
This set of conditions recommends »
postponement of the fee schedule until
an extensive review of the merits and
drawbacks of thU concept and Its effects
on the Headstart program can be com-
pleted. H.R. 11441 will allow the Educa-
tion and Labor Committee to undertake
this task. ; . - .
Mr. Speaker, I reserve the balance ot
my time. ' -
Mr. PERKINS. Mr. Speaker, I yield
such time as he may consumt to the dis-
tinguished gentleman from Washington
(Mr. Meeds) who has put In a great deal '
of work on this piece of legislation.
(Mr. MEEDS asked and was given
permission to revise and extend his
remarks.)
Mr. MEEDS. Mr. Speaker, I flr^t be-
came aware of the problems Inherent In
the Headstart fee schedule Implementa-
tion when a number of concerned Indian
parent groups contacted me..
The problems of implementation being
died for all Headstart programs are par-
ticularly acute for those operated on and
nil
93d CoNGiiESS ) HOL oii: OF REPRESENTATIVES j Report
l8t Session ) \ No. 93-661
CONFERRING JURISDICTION ON THE U.S. DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA OF CERTAIN CIVIL ACTIONS BROUGHT
BY THE SENATE SELECT COMMITTEE ON PRESIDENTIAL CAM-
PAIGN ACTIVITIES
November 26, 1973. — Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. Kastenmeier, from the Committee on the Judiciary,
submitted the following
REPORT
[To accompany S. 2641]
The Committee on the Judiciary, to whom was referred the bill (S.
2641) to confer jurisdiction upon the district court of the United
States of certain civil actions brought by the Senate Select Committee
on Presidential Campaign Activities, 'and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
PURPOSE
The purpose of S. 2641 is to confer upon the United States District
Court for the District of Columbia ]urisdiction over civil actions
brought by the Senate Select Committee on Presidential Campaign
Activities to enforce or secure a declaration concerning the validity of
any subpoena or order issued by the Select Committee to the Presi-
dent or other Federal officer for the production of information relevant
to the Committee's function. The Select Committee is given authority
to prosecute such actions to enforce or secure a declaration concern-
ing the validity of such subpoenas and orders heretofore or hereafter
issued by it, and may be represented by such attorneys as it may desig-
nate in any action under this Act.
STATEMENT
S. 2641 was introduced by Senator Sam J. Ervin, Jr., Chairman of
the Senate Select Committee on Presidential Campaign Activities on
November 2, 1973 and was cosponsored by all the Committee members.
It passed the Senate in amended form on November 9, 1973.
1112
The le<^islation is needed because, on October 17, 1973, the U.S. Dis-
trict Court for the District of Columbia dismissed an action brought
by the Select Comnuttee to enforce its subpoenas requesting certain
tape recordings whicn were in the possession of the President. The dis-
missal .followed a finding that there is no statute upon which the suit
could be based. Judge Jolm J. Sirica stated in his opinion, "The Court
has here been requested to invoke a jurisdiction which only Congress
can grant but m hich Congress has heretofore withheld." S. 2641 w(^uld
provide the necessary jurisdiction to the District Court.
As respects the procedure chosen by the SelecJ; Committee, Judge
Sirica observed that the Select Committee deliberareW|| chose not to
attempt an adjudication of the matter by resort to a conteinpt proceed-
ing under Title 2, U.S.C. § 192, or via congressional common law pow-
ei-s which permit the Sergfeant at Arms forcibly to secure attendance of
the offending part^, and that the Select Committee declared that either
method would be "inappropriate" and "unseemly."
In dismissing the Select Committee's suit for lack of jurisdiction,
Judge Sirica pointed out that in light of this lack of jurisdiction he did
not reach the problem of justiciability or the merits of the case before
him. It is important to note that the same is true of S. 2641. Enactment
of the bill will supply lacking jurisdiction but it will leave unresolved
any issue of justiciability or any issue on the merits.
As originally introduced, S. 2641 was broader in scope than the
pending measure that passed the Senate. It would have given every
congressional committee power to bring comparable suits. The present
measure results from an amendment in the nature of a substitute in-
troduced by Senator Ervin at the suggestion of Senator Hruska and
approved by all members of the Select Committee, which restricts the
application of the bill to subpoena and orders of the Select Committee.
We are advised that the Select Committee must respond to the
Court of Appeals by November 28, 1973 in its appeal of the ruling
of the District Court, "We are of the view that although the Select Com-
mittee may eventually prevail in the pending litigation, it is desirable
that the question of jurisdiction be resolved now % legislation needed
to enable the Select Committee to obtain information related to its in-
vestigation. For the same re^ison, the Committee on the Judiciary does
not at this time make any rccommondation concerning H,R. 11189, a
bill identical to S. 2641 as introduced. The Committer does not wish to
undergo the delay that enactment of a broader bill might entail.
The Committee recommends enactment of S. 2641.
COST TO TliE UNITED STATES
No cost to the United States is entailed by the eanctment of S. 2641.
NO KECOlJD VOTE
The legislation was ordered reported at a meeting of the Commit-
tee on the Judiciary held on November 26, 1073, No record vote was
taken during the Committee's deliberations, Motion to report S, 2641
favorably to the House without amendment was passed Avithout dissent.
H.R. 661
1113
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 1593-73
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
name and in the name of the UNITED
STATES ,
and
SAM J. ERVIN, JR.; HOWARD H. BAKER, JR. ;
HERMAN E. TALMADGE ; DANIEL K. INOUYE ;
JOSEPH M. MONTOYA; EDVJARD J. GURNEY ;
and LOIVELL P. WEICKER, JR., as United
States Senators who are members of
the Senate Select Committee on
Presidential Campaign Activities
Plaintiffs
RICHARD M. NIXON, individually and as
President of the United States
Defendant
AMENDED ANSWER
Richard M. Nixon, answering the amended complaint filed
in the above-styled cause, states as follows:
1. Admits the allegations contained in paragraph one of the
complaint, but denies that plaintiffs acted within their authority
in issuing the subpoenas duces tecum to the President of the
United States and thereafter in instituting this action.
2. Denies the allegation contained in paragraph two of
the complaint.
3. Admits the allegations contained in paragraph three
of the complaint, but denies that plaintiffs are entitled to
investigate criminal conduct; and further denies that plaintiffs
are empowered to bring suit against the President of the
United States.
1114
2
4. Admits the allegations contained in paragraph four
of the complaint.
5. Admits the allegations contained in paragraph five
of the complaint, but denies that the President of the United
States can be sued in his official capacity; and further
denies that he can be sued individually for acts performed
in his official capacity.
6. Denies the allegations contained in paragraphs six
through nine of the complaint.
7. Admits the allegations contained in paragraph nine
"a" that Public Law 39-190 ostensibly confers jurisdiction
upon this court but denies that the subject matter is
justiciable.
8. Denies the allegations contained in paragraph ten
of the complaint.
9. Admits the allegations contained in paragraph eleven,
but denies that plaintiffs are empowered to subpoena materials
from the President of the United States.
10. Admits the allegations contained in paragraphs twelve
through fifteen of the complaint.
11. Admits the allegation contained in paragraph sixteen
of the complaint, but denies that any court has jurisdiction
to quash, modify, or narrow a subpoena issued by a Committee
of Congress,
12. Admits the allegations contained in paragraph
seventeen of the complaint.
13. Alleges that he is without information or knowledge
sufficient to form a belief as to the allegations contained
in paragraph eighteen of the complaint, and denies that he
has conceded the relevancy of any "tapes" to plaintiffs'
investigation.
1115
3
14. Admits the allegations contained in paragraph
eighteen "a" of the complaint.
15. Denies the allegations contained in paragraphs
nineteen through twenty-five of the complaint.
In further defense to the complaint, Richard M. Nixon
states as follows:
First Defense
That the complaint fails to state a claim upon which
relief can be granted.
Second Defense
That this Court lacks jurisdiction over the person of
Richard M. Nixon in this action, either individually or as
President of the United States.
Third Defense
That this action presents no justiciable controversy as
required by Article III of the United States Constitution, and
28 U.S.C. 2201 and 2202.
Fourth Defense
That Senate Resolution 60, 93rd Cong., 1st Sess. (1973),
purports to authorize an investigation of alleged criminal
conduct, and that upon information and belief the investigation
by plaintiffs has been, in fact, a criminal investigation and
trial conducted for the purpose of determining whether or
not criminal acts have been committed and the guilt or
innocence of individuals, which Resolution and investigation
exceed the legislative powers granted to the Congress in
Article I of the Constitution.
1116
4
Fifth Defense
That the subpoena duces tecum attached as Exhibit D
to the complaint is so unreasonably broad and oppressive
as to make compliance impossible.
Sixth Defense
That the relief sought by plaintiffs constitutes an
unconstitutional attempt to interfere with the confidentiality
of private records of conversations between the President of
the United States and his closest advisers relating to the
official duties of the President.
Seventh Defense
That it is both common knowledge in the community and capab] e
of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned, and thus may be judicially
noticed by this Court, that the Senate Select Committee served
three additional subpoenas, sixty-eight pages in length and re-
turnable January 4, 1974, calling on the President to produce
hundreds of tapes and documents. When considered in conjunction
with the subpoenas which are the subject of the instant litigation,
it is clear that such a massive invasion of the White House con-
stitutes "wholesale public access to Executive deliberations and
documents" tending to "cripple the Executive as a co-equal branch."
WHEREFORE, premises considered, the relief prayed for
should be denied.
Respectfully submitted,
J. FRED BUZHARDT
JAMES D. ST. CLAIR
CHARLES ALAN WRIGHT
ROBERT T. ANDREWS
THOMAS P. MARINIS, JR.
Attorneys for the President
The White House
Washington, D.C. 20500
Telephone Number: 456-1414
By:
Of Counsel
RICHARD A HAUSER
K. GREGORY HAYNES
GEORIE P. WILLIAMS
1117
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
name and in the name of the UNITED
STATES ,
and
SAM J. ERVIN, JR.; HOWARD H. BAKER, JR. ;
HERMAN E. TALMADGE ; DANIEL K. INOUYE ;
JOSEPH M. MONTOYA; EDWARD J. GURNEY ;
and LOWELL P. WEICKER, JR., as United
States Senators who are members of
the Senate Select Committee on
Presidential Campaign Activities
Plaintiffs
RICHARD M. NIXON, individually and as
President of the United States
Defendant
Civil Action No. 1593-73
RESPONSE TO PLAINTIFFS'
MEMORANDUM ON REMAND
J. FRED BUZHARDT
JAMES D. ST. CLAIR
CHARLES ALAN WRIGHT
ROBERT T, ANDREWS
THOMAS P. MARINIS, JR.
Of Counsel
RICHARD A. HAUSER
K. GREGORY HAYNES
GEORGE P. WILLIAMS
Attorneys for the President
The White House
Washington, D.C.
Telephone Number ;
20500
456-1414
1118
Table of Contents
I . Introductory Statement 3
II . This Matter Does Not Present a Justiciable
Case or Controversy Within the Meaning of
Article III, § 2 , of the Constitution 6
III. Plaintiffs Have Exceeded Their Legislative
Authority Under the Constitution 17
rv. The President Has the Power to Withhold
Information From Congress the Disclosure
of Which He Determines to be Contrary to
the Pxiblic Interest 26
A. Basis for Executive Privilege 28
B. The Need for Confidentiality 39
V. Conclusion 52
1119
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, suing in its own
name and in the name of the UNITED
STATES,
and
SAM J. ERVIN, JR.; HONTVRD H. BAKER, JR.;
HERMAN E. TALMADGE ; DANIEL K. INOUYE ;
JOSEPH M. MONTOYA; EDWARD J. GURNEY ;
and LOWELL P. WEICKER, JR., as United
States Senators who are members of
the Senate Select Committee on
Presidential Campaign Activities
Plaintiffs
RICHARD M. NIXON, individually and as
President of the United States
Defendant
RESPONSE TO PLAINTIFFS '
MEMORANDUM ON REMAND
Civil Action No. 1593-7:
This action was originally filed by plaintiffs on
August 9, 1973. Richard M. Nixon answered on August 29,
1973, and plaintiffs immediately filed a motion for
summary judgment. The matter was fully briefed ctnd
submitted to this Court, Chief Judge John J. Sirica
presiding, on October, 4, 1973. After full consideration,
the Court dismissed plaintiffs' complaint and this action
for failure to allege a statutory grant of subject matter
jurisdiction. The Court properly failed to rule on the
other issues raised by Richard M. Nixon's answer, most
importantly on whether Richard M. Nixon, as President of
the United States , has a right under the Constitution to
withhold information from the Congress when he determines
the disclosure to be contrary to the public interest.
1120
2
This Court's order was entered on October 17, 1973.
Plaintiffs iminediately filed notice of appeal and, at
least initially, sought to have the matter treated ex-
peditiously by the Court of Appeals. Plaintiffs
subsequently withdrew their request for expeditious
treatment in order to pursue the alternative course of
seeking legislation to cure the jurisdictional defect of
their original complaint. This legislation was subse-
quently passed in the form of Public Law 93-190.
On December 28, 1973, the Court of Appeals remanded
this case to this Court "for further proceedings in light
of Public Law 93-190 to be codified as 28 U.S.C. § 1364."
On January 7, 1974, plaintiffs amended their complaint to
include a jurisdictional allegation under Public Law
93-190. This remand and the amendment to plaintiffs'
complaint places this matter before the court on
plaintiffs' motion for summary judgment.
The decision of this Court on October 17 is the law
of the case and establishes that jurisdiction is lacking
under any of the bases relied on in the original complaint.
The amended complaint adds a further claim of jurisdiction
under Public Law 93-190. We have very serious doubts
about the constitutionality of that statute. Although
Congress has broad powers over the jurisdiction of the
United States courts, it cannot make a political question
justiciable nor can it alter the constitutional separation
of powers. Those doubts about the constitutionality of the
statute, however, relate so closely to our argvunents on the
merits that we shall develop them in that context and assume
arguendo that this Court has jurisdiction of the subject
matter under Public Law 93-190 if the case is justiciable
at all,
1121
3
!• Introductory Statement
By their motion for summary judgment, plaintiffs ask
this Court to enter an order in the nature of a declaratory
judgment pursuant to 28 U.S.C. § 2201 that two subpoenas
duces tecum issued and served on the President must be
complied with notwithstanding the fact that the President
has interposed a claim of privilege as to materials covered
by the subpoenas.
As we have stated in previous submissions, the President
does not question the right and duty of the Congress to
conduct investigations and he does not seek to thwart the
investigation of the Senate Select Committee by refusing
to comply with the subpoenas in question. In his letter
of July 6, 1973, to the Chairman of the Committee, the
President stated that he respected the responsibilities
of the Committee and indicated that he was willing to
cooperate with it within the bounds of the constitutional
rights and powers of the Presidency, There has in fact
been considerable cooperation on behalf of the President
with the Committee's investigation. All of this coopera-
tion, however, has been voluntary and it is the view of the
President that it should remain voluntary if our constitutional
traditions are to remain intact. It is for this reason, and
this reason alone, that the President continues to resist the
efforts of the Senate Select Committee to coerce disclosure
of information the President deems contrary to the public
interest.
The constitutional traditions to which the President
refers have been well described by Professor Corwin in his
detailed analysis of the Presidency,
34-966 O - 74 - pt. 1 - 72
1122
In the many years that have rolled by since Jefferson's
presidency there have been many hundreds of congres-
sional investigations. But I know of no instance in
which a head of a department has testified before a
congressional committee in response to a sxobpoena or
been held in contempt for refusal to testify. All
appearances by these high officials seem to have
been voluntary.
Corwin, The President: Office and Powers 1787-1957 113 (4th
rev. ed. 1957). He restates his view at page 116:
In short, no one questions, or can question, the
constitutional right of the houses to inform
themselves through committees of inquiry on sub-
jects that fall within their legislative competence
and to hold in contempt recalcitrant witnesses
before such committees, and undoubtedly the question
of employee loyalty is such a subject. On the other
hand, this prerogative of Congress has always been
regarded as limited by the right of the President to
have his subordinates refuse to testify either in
court or before a committee of Congress concerning
matters of confidence between them and himself.
Are, then, - communications to the President or to
officials authorized by him to receive them con-
cerning the loyalty of federal executive personnel
such matters of confidence? The question must
undoubtedly be answered in the affirmative.
The Committee violated this time-honored tradition when
it issued the subpoenas in the face of the President's full
explanation on July 23, 1973, of the reasons why he had
determined that it would not be in the public interest to
disclose the information that the Committee had requested.
Now the Committee urges this Court to violate another
time-honored constitutional tradition — that is, to embroil
the Judiciary in what is essentially a confrontation between
the Executive and Legislative Branches of this Government.
As our original submission reflects, the defects in
plaintiffs' complaint were several. Plaintiffs have attempted
to cure the most basic defect, the want of a statutory grant
of jurisdiction, by reliance on Public Law 9 3-190. Public
Law 93-190 is not, however, the end of plaintiffs' jurisdic-
tional problems.
1123
Article III, § 2 of the Constitution allows a federal
court to act only in cases and controversies. By this
terminology, the Constitution means an "actual controversy"
of a justiciable nature. The classic statement of this
constitutional requirement is by Chief Justice Hughes in
^etna Life Insurance Company of Hartford, Connecticut
V. Haworth, 300 U.S. 227 (1937).
A "controversy" in this sense must be one that
is appropriate for judicial determination.
*** A justiciable controversy is thus distin-
guished from a difference or dispute of a
hypothetical or abstract character; from one
that is academic or moot. *** The controversy
must be definite and concrete, touching the
legal relations of parties having adverse legal
interests. *** It must be a real and substan-
tial controversy admitting of specific relief
through a decree of a conclusive character, as
distinguished from an opinion advising what
the law would be upon a hypothetical state of
facts. *** Where there is such a concrete
case admitting of an immediate and definitive
determination of the legal rights of the
parties in an adversary proceeding upon the
facts alleged, the judicial function may be
appropriately exercised although the adjudi-
cation of the rights of the litigants may not
require the award of process or the payment
of damages. *** And as it is not essential
to the exercise of the judicial power that an
injunction be sought, allegations that irre-
parable injury is threatened are not required.
300 U.S. at 240-241. Although the massive generalities of
the Aetna case are quoted and requoted in later decisions,
they are something less than a sure guide to decision.
"The considerations, while catholic, are not concrete."
McCahill v. Borough of Fox Chapel, 438 F.2d 213, 215
(3rd Cir. 1971). A better perception was stated for the
Court by Justice Murphy in a later case.
The difference between an abstract question and
a "controversy" *** is necessarily one of degree,
and it would be difficult, if it would be possible,
to fashion a precise test for determining in everv
case whether there is such a controversy. Basically,
the question in each case is whether the facts
alleged, under all the circumstances, show that
there is a substantial controversy, between parties
having adverse legal interests, of sufficient im-
mediacy and reality to warrant the issuance of a
declaratory judgment.
1124
6
Maryland Casualty Co. v. Pacific Coal ^ Oil Co. , 312 U.S.
270, 273 (1941).
The President does not suggest that there is no
controversy between the Committee and his office. He does
suggest, however, that the controversy that exists, involving
as it does a confrontation between two separate and co-equal
branches of this Government, is inappropriate for judicial
resolution by way of declaratory judgment. Resolution by
this method would require this Court to interject itself
between these two branches — a role courts have understandably
gone to great lengths to avoid. In the words of Justice Douglas,
"the federal courts do not sit as an ombudsman refereeing
disputes between the other two branches." Gravel v. United States, //
408 U.S. 606, 640 (1972) (Douglas, J. dissenting)/
II. This Matter Does Not Present A
Justiciable Case or Controversy
within the Meaning of
Article III, § 2, of the Constitution
The deus ex machina of Public Law 93-190, upon which
plaintiffs rely to overcome the jurisdictional obstacles
to this unprecedented action, cannot be invoked to render
this suit a justiciable controversy; for 28 U.S.C. § 1364
is merely a statutory grant of jurisdiction, and, thus,
satisfies only one of the jurisdictional requirements set
down by the Supreme Court in Powell v. McCormick , 395 U.S.
486, 512-513 (1969) .
In Baker v. Carr *** we noted that a federal district
court lacks jurisdiction over the subject matter (1)
if the cause does not "arise under" the Federal
Constitution, laws, or treaties (or fall within one
of the other enumerated categories of Art. Ill) ; or
(2) if it is not a "case or controversy" within the
meaning of that phrase in Art. Ill; or (3) if the
cause is not one described by any jurisdictional
statute.
1125
7
The Supreme Court in Powell had reference to the discussion
of subject matter jurisdiction in Baker v. Carr, 369 U.S.
186, 198-199 (1962) . This principle has been recently
reaffirmed by the District of Columbia Circuit in United States
Servicemen's Fund v. Eastland, (No. 24,279 August 30, 1973) .
As the quotation from Powell indicates, entry into the
federal court is like opening a safe deposit box, where two
separate keys are required. For the federal courtroom door,
the two essential keys are that the case be within the judi-
cial power of the United States, as defined in Article III,
S 2, of the Constitution, Hodgson v. Bowerbank, 5 Cranch
(9 U.S.) 303 (1809), and that it be within a statutory grant
of jurisdiction by the Congress, Cary v. Curtis, 3 How.
(44 U.S.) 236, 245 (1845). See Wright, Federal Courts §§ 8,
10 (2d ed. 1970). Public Law 93-190 satisfies only this
second requirement. To be properly in court they must also,
to use the words of Senator Baker, "place a justiciable
issue before the courts" (S. Tr. 5502) Hearings Before the
Select Committee on Presidential Campaign Activities of the
U.S. Senate, 93rd Congress, 1st Sess., bk. 7, at 2660 (1972).
This they have failed to do.
The concept of justiciability as it has evolved through
our constitutional history is well-described by the Supreme
Court in Flast v. Cohen, 392 U.S. 83 (1968).
The jurisdiction of federal courts is defined
and limited by Article III of the Constitution.
In terms relevant to the question for decision
in this case, the judicial power of federal
courts is constitutionally restricted to "cases"
and "controversies." As is so often the situa-
tion in constitutional adjudication, those two
words have an iceberg quality, containing
beneath their surface simplicity sxibmerged
complexities which go to the very heart of our
constitutional form of government. Embodied
in the words "cases" and "controversies" are
two complementary but somewhat different
limitations. In part those words limit the
business of federal courts to questions
presented in an adversary context and in a
form historically viewed as capable of reso-
lution through the judicial process. And in
part those words define the role assigned to
1126
8
the judiciary in a tripartite allocation of
power to answer that the federal courts will
not intrude into areas committed to the other
branches of government. Justiciability is
the term of art employed to give expression
to this dual limitation placed upon federal
courts by the case-and-controversy doctrine.
Justiciability is itself a concept of uncertain
meaning and scope. Its reach is illustrated by
the various grounds upon which questions sought
to be adjudicated in federal courts have been
held not to be justiciable. Thus, no justiciable
controversy is presented when the parties seek
adjudication of only a political question, when
the parties are asking for an advisory opinion,
when the question sought to be adjudicated has
been mooted by subsequent developments, and
when there is no standing to maintain the action.
Yet it remains true that " ( j ) usticiability is
***not a legal concept with a fixed content or
susceptible of scientific verification. Its
utilization is the resultant of many subtle
pressures***" Poe v. Ullman, 367 U.S. 497,
508 (1961).
392 U.S. at 94-95 (footnotes omitted).
This matter raises problems of justiciability,
primarily because it calls for adjudication of a political
question.
In Marbury v. Madison , 1 Cranch (5 U.S.) 137, 164-166
(1803) , Chief Justice Marshall expressed the view that the
courts will not entertain political questions even though
such questions may involve actual controversies. This rule
was found to have particular force with regard to the
Office of President.
By the Constitution of the United States, the
President is invested with certain important
political powers , in the exercise of which he
is to use his own discretion, and is account-
able only to his country in his political
character, and to his own conscience. To aid
him in the performance of these duties, he is
authorized to appoint certain officers, who
act by his authority and in conformity with
his orders.
1127
In such cases, their acts are his acts; and
whatever opinion may be entertained of the
manner in which executive discretion may be
used, still there exists, and can exist, no
power to control that discretion. The sub-
jects are political: they respect the nation,
not individual rights, and being entrusted to
the executive, the decision of the executive
is conclusive.
1 Cranch at 165-166.
Since that early statement by Justice Marshall in
Marbury v. Madison, the courts have struggled to establish
criteria that would enable them to identify and uniformly
deal with political questions. Such criteria have been
evasive. In Coleman v. Miller, 307 U.S. 433, 454-55 (1939),
the Court noted that a political question may be identified
by evaluating "the appropriateness under our system of
government of attributing finality to the action of the
political departments and also the lack of satisfactory
criteria for judicial determination***."
It was not until Baker v. Carr , supra, however,
that the Court finally succeeded in isolating and articu-
lating a workable set of criteria for identifying an issue
that presents a political question. The Court said:
Prominent on the surface of any case held to
involve a political question is found a text-
ually demonstrable constitutional commitment
of the issue to a coordinate political depart-
ment; or a lack of judicially discoverable and
manageable standards for resolving it; or the
impossibility of deciding without an initial
policy determination of a kind clearly for norv-
judicial discretion; or the "impossibility of a
court's undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of embarrass-
ment from multifarious pronouncements by
various departments on one question.
369 U.S. at 217.
It is submitted that this matter, involving as it does a
request by the Legislative Branch that this Court overrule a
formal and legitimate invocation of executive privilege,
poses a nonjusticiable political question of such magnitude
that literally every single formulation or criterion established
in Baker v. Carr is inextricably a part of the issue presented.
1128
10
Plaintiffs, however, have chosen to ignore Baker v.
Carr, insisting only that there exists no "textually
demonstrable constitutional commitment" of executive
privilege to the President. Despite this bald conten-
tion, it is clear that the Constitution does embody such
a "textually demonstrable" commitment. Indeed, Professor
Dash has stated that the plaintiffs "don't question the
executive privilege power of the President," but only
challenge what they consider to be an abuse in its in-
2
vocation. Such a concession to the Constitutional basis
for executive privilege is significant and is clearly
mandated by the provisions of Article II, §§ 1, 2 and 3.
3
Transcript of Proceedings October 4, 1973 at 58
(hereinafter "Transcript").
This "abuse," as articulated by Professor Dash, is
that this is an "assertion of executive privilege
where the President personally is involved. In that
particular case he is using executive privilege as a
shield for his self-protection rather than protection
of the presidency or executive privilege." (Transcript
at 68) . Such a distinction or "abuse" is no longer
even an arguable position since the President has dis-
closed to the grand jury the tapes which are the sub-
ject of this suit. This is not to say, however, that
the President now or ever has conceeded that his formal
and personal invocation of executive privilege is re-
viewable by the courts. The disclosure of the tapes
to the grand jury, however, is a forceful refutation
of the charge that the President is attempting to
"hide behind" a claim of executive privilege.
The textually demonstrable commitments are con-
contained in the § 1 grant of "executive power" solely
to the President; and § 2 grant to the President of
the right to require, free from any Senate review,
advice from his principal executive officers; and
the § 3 charges that the President deliver a State
of the Union message and "take care that the laws
be faithfully executed."
In addition, these explicit grants of power carry
other powers along with them. The Supreme Court
has stated:
It is true, that such a power, if it exists,
must be derived from implication, and the
genius and spirit of our institutions are
hostile to the exercise of implied powers.
Had the faculties of man been competent to
the framing of a system of government which
would have left nothing to implication, it
cannot be doubted that the effort would have
been made by the framers of the Constitution.
But what is the fact? There is not in the
whole of that admirable instrument a grant
of powers v;hich does not draw after it others,
not expressed, but vital to their exercise;
not substantive and independent, indeed, but
auxiliary and subordinaate .
Anderson v. Dunn, 6 Wht at (19 U.S.), 204, 225-226 (1821)
1129
11
Equally significant is the curious refusal by the
plaintiffs even to consider the applicability of the other
five indicia of a political question articulated in Baker
V. Carr .
This failure undoubtedly results from plaintiffs'
misplaced reliance on the decision of the United States \^'
Court of Appeals for the District of Columbia in Nixon v.
Sirica (Nos. 73-1962, 73-1967, 73-1989, Oct. 12, 1973).
Admittedly, the Court of Appeals held the courts have the
power to review a claim of Presidential privilege over
matters subpoenaed by a grand jury. The Court of Appeals
went to great lengths to emphasize "the narrow contours /
of the problem" with which it was faced and the fact that r
the decision was strictly limited to the "entirely unique
circumstances of the case." Indeed, the exception prom-
ulagated there depends entirely upon "the grand jury
showing that the evidence is directly relevant to its
decisions. "
Grand juries have traditionally been viewed as arms
of the courts and courts are uniquely qualified to pass
judgment on the needs of a grand jury. That was not the
issue before the Court of Appeals in Nixon v. Sirica.
Rather the issue was whether in determining the needs of
the grand jury a court could compel the President of the
United States to produce evidence he claimed was privileged
for in camera inspection.
The Court of Appeals found that in these unique circum-
stances the courts had such a power and to protect the
integrity of the grand jury were bound to exercise it. This
finding, however, does not, as plaintiffs appear to suggest,
impose a similar obligation on this Court. For here the
circumstances are quite different. The Committee has made
the political decision, albeit under color of law, to make
an unprecedented demand on the President. The President
')
1130
12
has considered the demand and made the political deter-
mination that compliance would be contrary to the public
interest. The Committee has asked this Court to referee
this dispute and to do so the Court must substitute its
political judgment for both that of the President and the
Committee and determine which of two co-equal branches
of government should prevail.
The Court should decline this invitation. Acceptance
could require this Court to substitute its judgment for that
of the President in an area over which the President histor-
ically has exclusive and unreviewable power — the invoca-
tion of executive privilege against the Congress. Such a
privilege, inherent as it is in the constitutional grant
of executive power, is a matter for Presidential judgment
alone. The standards and circumstances that mandate its use
are a function of Presidential judgment. Such judgments
cannot be second-guessed and overruled at the caprice of
the Senate Committee. Nor can they be evaluated and review-
ed by any discernible criteria traditionally utilized by the
courts in resolving constitutional disputes between individuals.
This distinction has been repeatedly noted by commen-
tators, e.g., Douglas, Anatomy of Liberty 77 (1963);
Younger, Congressional Investigations and Executive
Secrecy: A Study in the Separation of Powers , 20 U.
Pitts. L. Rev. 755, 776(1959). A very recent commentator
puts it this way: "The status of the party asserting
the claim is obviously critical, as is the status of
the entity against whom the claim is pressed. Putting
aside all the difficulties involved in suing the Presi-
dent, eo nomine, there is an obvious difference between
a claim by a coordinate branch and a claim by a private
person that the allegedly unconstitutional usurpation
also has caused him tangible injury. Apart from the
greater ability of Congress to protect its jurisdiction
by political means, it seems incongruous for Congress
to request the courts to determine the extent and
adequacy of congressional support of presidential action
in an area of concurrent power." Erchnmeyer, The
Separation of Powers : An Essay on the Vitality of a
Constitutional Idea, 52 Ore. L.Rev. 211, 232 (1973).
1131
13
The cases cited by the Committee in its Motion for Summary
Judgment are not even remotely similar to the instant case,
involving as they do controversies resolvable by judicial
interpretation of a statute or the Constitution. Cf. Powell
v. Mccormick , 395 U.S. 486 (1969); United States v. Lovett,
328 U.S. 303 (1946); Humphrey ' s Executor v. United States ,
295 U.S. 602 (1935) . These were all cases in which the
court was adjudicating, as courts traditionally do, a
claim of individual rights. This is a compelling indicia
of a political question as articulated in Baker v. Carr .
The matter of executive privilege against congressional
demands, involving as it does subtle and exclusively
Presidential judgments, is an area of decision-making
where there are "considerations of policy, considerations
of extreme magnitude, and certainly, entirely incompetent
to the examination and decision of a court of justice."
Ware v. Hylton, 3 Dall. (3 U.S.) 199, 260 (1796). It is
this very "lack of judicially discoverable and manageable
standards" for resolving the issue that further highlights
the nonjusticiability of the question. It is respectfully
submitted that this obvious absence of standards for re-
view of the President's invocation of privilege is apparent
upon analysis of the court's task in any in camera proceeding.
As Professor Black so clearly explains.
The reason for maintenance of confidentiality
may not, and sometimes will not, appear on the
face of the submitted material but may lie in
its context, outside the record. The President,
in attempting to persuade the judge of the
necessity for confidentiality, would thus
often be forced to reveal more and more
material beyond what had been subpoenaed,
with no assurance that any of this material
would remain confidential.
Black, Letter to the Editor, N. Y. Times, September 6, 1973,
p. 34.
1132
14
Thus the Court is asked to make an initial policy
determination that the President has improperly or mis-
takenly invoked executive privilege against the Congress.
Such a determination by a court is constitutionally im-
permissible and violates the most basic tenets of the
separation of powers. Moreover it is a determination
beyond judicial abilities since the Court simply cannot
substitute its judgment for that of the President. The
impossibility of judicial resolution is underscored by
the ancillary problem of the absence of standards for
resolving the question. The teachings of Baker v. Carr
are clear and compelling and require recognition of these
indicia of nonjusticiability .
In Powell V. Mccormick, supra at, 548-549 (1969) ,
the Court determined that it could resolve the question
presented without creating "a potentially embarrassing
confrontation between coordinate branches" of the govern-
ment because the resolution of the question of Representative
Powell's right to be seated in Congress required no more
than that the Court exercise its traditional role as inter-
preter of the Constitution. The decision required an inter-
pretation of Congressional powers under Article 1, § 5, the
type of interpretative function traditionally the respon-
sibility of the Judicial Branch. The instant case cannot
be so easily resolved. Contrary to the facts in Powell,
there is no dispute in this case as to the President's
constitutional power to invoke executive privilege. Many
courts have so held and the Senate Committee itself recog-
nizes the existence of an executive privilege. The Senate
Committee, however, asks this Court to rule that the Legis-
lative Branch has the responsibility and power to review
the propriety of executive utilization of the privilege.
Such a legislative power does not exist, and for this Court
to hold to the contrary would be the most patent expression
1133
15
of "lack of respect due a coordinate branch of government."
Again, the teachings of Baker v. Carr apply and the true
nature of the political question presented is made manifest.
In Committee for Nuclear Responsibility , Inc. v.
Seaborg 463 F. 2d 788, 792 (D.C. Cir. 1971), a case upon
which the Committee relies, the court clearly recognized
that the government has an interest in avoiding disclosure
of documents "which reflect intra-executive advisory
opinions and recommendations whose confidentiality con-
tributes substantially to the effectiveness of government
decision-making processes." In Seaborg , the court con-
sidered only a claim of privilege by an "executive depart-
ment or agency" and thus, despite the Committee's view
that it controls here, Seaborg cannot be read as authorita-
tive on the issue of a direct, personal claim of privilege
by the Chief Executive.
It is submitted that the question before this Court
poses the dilemma inherent in any nonjusticiable policital
question. The Court is being asked to resolve a direct
clash of power between two branches of government. To
resolve the confrontation the Court must necessarily
declare that one power is greater than its counterpart
and thus violate the very essence of separation of
powers among the co-equal branches. Nothing could more
clearly demonstrate "lack of respect due a coordinate
branch of government," and nothing could more explicitly
demonstrate the nonjusticiable nature of the present
matter .
The Presidential decision to in\'oke executive
privilege is by definition a political decision. It
is a function of the President's position as Chief
Executive. It involves, as we have demonstrated, a
1134
16
complex blend of policy, perspective, and knov/ledge
uniquely within the province of the President and
Executive Branch. Neither the courts nor Congress can
vouchsafe themselves the elements of knov/ledge and
perspective necessary to examine and review such a
decision. If the exclusive executive power conferred
upon the President in Article II is to remain a meaning-
ful constitutional allocation, neither the Court nor
Congress can look behind this politica] decision already
made by the President.
The Senate Committee invites this Court to create
a constitutional confrontation destructive of the
separation of powers. It is submitted, with respect,
that such an invitation must be declined. The
atmosphere of constitutional confrontation must be
dissolved by this Court's "unquestioning adherence
to the political decision already made." The unusual
need for such adherence is further indicative of the
nonjusticiable nature of the question presented.
It is sxibmitted that this Committee's challenge
to the invocation of executive privilege is merely the
first such challenge that will occur if this Court issues
the judgment requested. Recent events make it clear
that the plaintiffs seek a favorable ruling in order to
open the door to a wholesale invasion of execi'tive
confidentiality. On Ottober 4, 1973, Professor Dash
stated that :
We are not, as I have indicated, asking for any
ruling by this Court that the President doesn't
have executive privilege. He certainly does.
We are saying that in a particular situation
where we have identified the tapes by the tape,
by the minutes of the conversation, where we
already have by testimony indicated what was
talked about during that period of time, and
that we have made a prima facie case***of
possible criminality on the part of the President,
that executive privilege clearly cannot be
stated here .
1135
17
Transcript at 25. It is obvious that plaintiffs are
no longer content to confine themselves to a narrow,
well-defined challenge to executive privilege. Indeed,
the three most recent subpoenas calling for Presidential
documents present requests so broad, so unprecedented,
as to make impossible the formulation of any "judicially
discoverable standards for resolving" a claim of execu-
tive privilege. The inevitable result will be this
Court's participation with the Committee in what could
become, in the words of the Court of Appeals, "wholesale
public access to Executive deliberations and documents"
that "would cripple the Executive as a co-equal branch."
Nixon v. Sirica, supra at 26-27.
For these reasons, as well as the existence of all
other indicia of a political question that adhere in
this matter, the Court must hold the matter before it
to be nonjusticiable.
III. Plaintiffs Have Exceeded
Their Legislative Authority
Under the Constitution
A. Constitutional Limits
The power of the Congress to conduct investigations
is inherent in the legislative process and is broad.
Congress cannot legislate wisely or effectively in the
absence of information respecting the conditions which
the legislation is intended to affect or change. There-
fore the power of inquiry is a necessary and appropriate
attribute of the power to legislate. McGrain v. Dauqherty,
273 U.S. 135, 175 (1927). However, this power of inquiry
is not unlimited. Watkins v. United States, 354 U.S. 178,
187 (1956); United States v. Rumely 345 U.S. 41, 58
(1953) (Douglas, J., concurring); Marshall v. Gordon, 243
U.S. 521 (1917); Kilbourn v. Thompson, 103 U.S. 168 (1880).
1136
18
The Senate Select Conunittee has asserted a broad
mandate to "get to the bottoin of widespread but incom-
pletely substanitated suspicions of wrongdoing at the
highest executive levels." Memorandum in Support of
Motion for Summary Judgement (hereinafter "Memo.") at 15.
In this action the movants have subpoenaed tape recordings
and other materials in an effort to resolve the conflicting
testimony adduced at the Senate hearings and thus determine
"the precise extent of malfeasance in the executive branch."
Memo, at 16. This inquiry is not germane to the Committee's
legislative purpose, and indeed constitutes a usurpation
of those duties exclusively vested in the Executive and
the Judiciary.
The Senate Select Committee was established to
investigate and study the extent to which illegal,
improper, or unethical activities existed in the
Presidential election of 1972 and related events, and
to "determine whether in its judgment any occurrences
* * * revealed * * * indicate the necessity or desirability
of the enactment of new congressional legislation to
safeguard the electoral process by which the President
of the United States is chosen." S. Res. 60, 93rd Congress,
1st Sess. (1973) . Accordingly, the Committee's mandate
was to identify illegal, improper, or unethical activities
and recommend corrective legislation, not to resolve the
conflicts in the evidence and adjudicate questions of
guilt or innocence. Such an inquiry is not germane to
the Committee's legislative purpose, and is outside
its charge. Clearly the movants can honor their
legislative mandate without access to the tapes. ^
It should be noted that at least two members of
the Committee, although joining in the present
action, have acknowledged that production of the
tapes is not essential to the legislative functions
of the Committee. The Washington Post of September 10,
1973, p. A2, reported the following statement by
Senator Daniel K. Inouye:
1137
19
However, Congress is not a law enforcement or trial agency.
"I think we can proceed and file an adequate report
without the tapes , " said Inouye , a menber of the
Senate Watergate Committee.
"As far as I am concerned personally," he said on
NBC's "Meet the Press" program, "this is where the
difference between a legislative proceeding and a
judicial proceeding comes in. If this were a
criminal matter, I would say that the tapes are
absolutely necessary and essential. But in our
case I think we can proceed and file an adequate
report without the tapes."
He was asked, "You personally don't care then who
is telling the truth?"
"Because it is not our business to decide the guilt
or innocence of any party this is my view." Inouye
responded.
Senator Inouye was further asked, "Doesn't it matter
to you in your final report whether you established
who is telling the truth?"
He responded, "I said this was my personal view and
this makes a difference between a legislative inves-
tigation and a criminal case. In a criminal case it
would be absolutely essential. I would say the tapes
be made available. But for the purpose of this com-
mittee I am certain the Committee report can be made."
Senator Gurney stated the following views when he was
interviewed on Capitol Cloak Room on Sept. 16, 1973:
"Senator, if we can turn to the question of presi-
dential tapes, do you think they are essential to
the investigation that the Senate is conducting?
"SENATOR GURNEY: No. No, I don't. VVhat is our duty
anyway? Our duty of course was to charter...", there
are certain words unintelligible — "to look into facts
and circumstances of Watergate that the presidential
election of 1972, I should say, and report to the Senate
and recommend legislation we thought was necessary in
order to improve our political campaigns. Now getting
the presidential tapes really has nothing to do with
that charter at all. It ^oes have something to do with
who said what, on what day the President met with John
Dean or somebody else and it really doesn't have anything
to do with what our charter is or interfere with our
ability to make recommendations to the Senate to improve
campaigns .
"MISS STAHL: Well, then you think you can fully write
your final report without the tapes, is that correct?
"SENATOR GURNEY: We can, indeed.
"MR. STRASSER: This testimony would relate to what is
commonly called the cover-up. Are you saying this is
not part of the Committee's jurisdiction?
"SENATOR GURNEY: In answer to the previous question, of
course that was did we need the tapes in order to write
our report I said no, we didn't. The tapes would shed
light on the Watergate affair, that is true, but that is
really not what our charter is and that is to write our
report and make recommendations to the Senate."
See Transcript at 4-6.
34-966 O - 74 - pt. 1 - 73
1138
20
These are functions of the Executive and Judicial depart-
ments of the government. No inquiry is an end in itself;
it must be related to, and in furtherance of, a legitimate
task of the Congress. Here the Senate Committee has indi-
cated that it needs the subpoenaed materials so that it
can determine whether perjury has been committed. See
footnote, Plaintiffs' Memorandum on Remand at 22. Deter-
mining whether a crime has been committed manifestly is
outside the constitutional powers enumerated for the
Congress. If the Committee has received conflicting
testimony that it believes may involve perjury, the matter
should be referred to the Department of Justice for appro-
priate legal action under the provisions of the criminal
code (18 U.S.C. §§ 1621-1623). Unfortunately, the Committee
insists upon performing these law enforcement and guilt
adjudicating functions itself, activity that clearly
exceeds its constitutional authority.
In a similar situation the Supreme Court in Kilbourn
V. Thompson, 103 U.S. 168 (1880), determined that the
House of Representatives had exceeded its authority in
directing one of its committees to investigate the cir-
cumstances surrounding the bankruptcy of Jay Cooke and
Company, in which the United States had deposited funds.
The committee became particularly interested in a private
real estate pool that was part of the financial structure
and jailed Kilbourn for refusing to answer certain questions
about the pool and to produce certain books and papers.
The Court found that the subject matter of the inquiry
was "in its nature clearly judicial," 103 U.S. at 192,
not legislative, and the House was exceeding the limit
1139
21
of its own constitutional authority. Accordingly the
committee had no lawful authority to require Kilbourn to
testify as a witness or produce papers.
It is unquestionably the duty of all citizens to
cooperate with Congress in its efforts to obtain the facts
needed for intelligent legislative action and all citizens
unremitting obligation to respond to subpoenas. However,
this duty adheres only with respect to matters within the
province of proper investigation. Watkins v. United States ,
354 U.S. 178, 187-188 (1956). Here this Committee is acting
in excess of the power conferred on Congress by the
Constitution .
The fundamental holding of Kilbourn was not impaired
by the subsequent cases of McGrain v. Daugherty, 273 U.S.
135 (1927) , and Sinclair v. United States, 279 U.S. 263
(1929) , so heavily relied upon the Committee. In both
cases the Supreme Court expressly acknowledged the require-
ments that congressional inquiries be related to a proper
legislative purpose . In McGrain, the Supreme Court found
that an inquiry into the conduct of the office of Attorney
General reflected legitimate legislative concerns and
upheld a subpoena of the brother of the former Attorney
General. Pointing out that the office of Attorney General
6 The Court in Kilbourn v. I'hompson, observed that:
It is believed to be one of the chief merits of the
American system of written constitutional law, that
all the powers intrusted to government, whether
State or national, are divided into the three grand
departments, the executive, the legislative, and
the judicial. That the functions appropriate to
each of these branches of government shall be vested
in a separate body of public servants, and that the
perfection of the system requires that the lines
which separate and divide these departments shall be
broadly and clearly defined. It is also essential
to the successful working of thi^ system that the
persons intrusted with power in any one of these
branches shall not be permitted to encroach upon the
powers confided to the others, but that each shall by
the law of its creation be limited to the exercise of
the powers appropriate to its own department and no other.
102 U.S. at 190-191.
1140
22
was "subject to regulation by Congressional legislation,"
and that the "only legitimate object the Senate could have
in ordering the investigation was to aid it in legislating,"
the Court concluded that, in view of the subject matter, it
would presume that legislation was the real object of the
investigation. 273 U.S. at 178. Sinilarly, in Sinclair,
the Court found that an inquiry into oil leases was properly
related to congressional authority over public lands and
rejected, on the basis of the record, the factual argu-
ment that the investigation was not in aid of legislation.
The Supreme Court has quite understandably and
wisely sought to avoid the constitutional trauma inherent
in a holding that Congress had exceeded its authority.
But Kilbourn, -and the concept that a legislative purpose
is an indispensable prerequisite for a valid inquiry,
are the framework in which the Court has found other
grounds for declining to enforce congressional subpoenas.
Subsequent cases have indicated that the "presumption"
indulged by the Court in McGrain may be overcome if
the connection with a proper legislative purpose becomes
too tenuous. And the Supreme Court has shown particular
concern where congressional inquiries have threatened
to encroach upon other important constitutional rights.
See Watkins v. United States, supra; United States v.
Rumely , 345 U.S. 41 (1953).
1141
23
In United States v. Rumely, 345 U.S. 41 (1953) , where
it was argued that the inquiry trespassed upon the First
Amendment, the Court said:
Whenever constitutional limits upon the investi-
gative power of Congress have to be drawn by this
Court, it ought only to be done after Congress has
demonstrated its full awareness of what is at stake
by unequivocally authorizing an inquiry of dubious
limits.
345 U.S. at 46. The Court went on to hold that questions
put to the defendant exceeded the bounds of the resolution
by the House of Representatives creating the commiteee —
notwithstanding the subsequent ratification of the
committee's action by the House.
In Watkins v. United States, 354 U.S. 178 (1957), the
Supreme Court affirmed that :
No inquiry is an end in itself; it must be related
to, and in furtherance of, a legitimate task of the
Congress. Investigations conducted solely for the
personal aggrandizement of the investigators or to
"punish" those investigated are indefensible.
354 U.S. at 187. The Court cited Kilbourn for the prop-
osition that an investigation unrelated to legislative
purpose would be "beyond the powers conferred upon the
Congress in the Constitution" and Rumely for the prop-
osition that "the mere semblance of legislative purpose
would not justify an inquiry in the face of the Bill of
Rights." 354 U.S. at 198. The Court held that the House
Resolution in question was so broad that the defendant
could not fairly determine whether the questions put to
him were pertinent to the committee's inquiry.
In this case, as in Rumely and Watkins , there is
a collision between the congressional pursuit of infor-
mation and an important Constitutional right. In Rumely
and Watkins the Supreme Court was concerned with the
impact of congressional investigations upon First
Amendment freedoms. Here the investigation directly
1142
24
challenges the Presidency. The importance of confiden-
tiality to the Office of the President, and the
implications of seeking to impose judicial control upon
the conduct of that office, are treated elsewhere in
this memorandiara. Certainly the preservation of the ability
of Presidents to function is no less crucial to our
Constitutional ijystem that the vindication of First
Amendment rights.
Watkins is important too for the flat and famous
statement in which the Court said: "We have no doubt
that there is no congressional power to expose for the
sake of exposure." 345 U.S. at 200.^ Of course the
Senate is authorized to investigate campaign practices
to see if legislation is needed in that area. But
every time a member of the Committee speaks of the
importance of "who said what to whom" or "what the
President knew and when," and everytime the plantiffs'
briefwriters harp, as they do so repeatedly, on "the
President's own possible criminality," Supplementary
Memorandum in Support of Plaintiffs ' Motion for Summary
Judgement at 2, they make it manifest that what they
are interested in here is "to expose for the sake of
exposure . "
The plaintiffs can take no comfort in the ruling in
Nixon V. Sirica, because a careful reading of that decision
reveals that the court emphasized the "narrov; contours
of the problem" and the fact that the decision was limited
In Watkins the Court also pointed with envy to
England, where investigations of this kind are
entrusted to royal commissions, removed from the
turbulent forces of politics and partisan con-
siderations. "Seldom, if ever, have these com-
missions baen given the authority to compel the
testimony of witnesses or the production of
documents." Nevertheless, they have, as the
Court noted, enjoyed "success in fulfilling
their fact-finding missions without resort to
coercive tactics * * *." 354 U.S. at 191-192.
1143
25
to the "entirely unique circumstances of the case."
Nixon V. Siric^ supra at 4. Indeed, the exception to
the principle of executive privilege carved out there
depends entirely upon "the grand jury showing that the
evidence is directly relevant to its decisions." Nixon
V. Sirica, supra at 34. Obviously, if a grand jury is
considering indicting for perjury when contradictory
statements were made by different persons, it must
ascertain who was not truthful in order to indict the
proper person. It could be argued that the grand jury
may have been completely precluded from returning any
perjury indictments if it did not have access to the
tapes.
The Senate •Committee does not find itself in an
analogous situation. Its primary function — the pro-
posing of legislation — is not completely precluded
because there is some conflict in the testimony given
before the Committee. However, it is argued that the
subpoenas in question (and supposedly the most recent
subpoenas that demand access to hundreds of tapes ,
documents, notes, memoranda, etc.) must be complied
with in order that the Congress' "informing function"
can be accomplished.
It is submitted that the Committee has not been
unduly frustrated in carrying out its informing function.
The President has permitted many of his closest aides
and advisors to give public testimony without claiming
pi^ivilege . The Committee has had voluminous documents
submitted as evidence. There are about 10,000 pages of
testimony that have been given under oath. The Special
Prosecutor has taken guilty pleas in a number of instances
1144
26
and advises that further indictments will be forthcoming.
The story of Watergate is unfolding, but it should do so
in an orderly manner. As the President stated in his
letter of January 4, 1974, to the Chairman of the Senate
Select Committee:
As you are aware, substantial numbers of materials
have been provided to the Office of the Special
Prosecutor for possible use with grand juries.
With respect to whatever portions of the materials
covered by your subpoena may be relevant to matters
now subject to grand jury investigation, and
potentially, criminal trials, disclosures to you,
and through you to the public, could seriously
impair the ability of the Office of the Special
Prosecutor to complete its investigations and
successfully prosecute the criminal cases which
may arise from the grand juries.
There are strong reasons why the most private con-
versations and documents of the President should not be
disclosed. If any of these items should be released to
any extent, at least it should be under the auspices of
the grand jury and its traditional cloak of secrecy.
The public disclosure of conversations and memoranda
that were always intended to be private has a tendency
to degrade and ridicule the Presidency by transforming
heretofore private and personal discussions into cockta
party entertainment.
" /
IV. The President Has the Power to Withhold Information
from Congress the Disclosure of Which He Determines to Be
Contrary to the Public Interest
Plaintiffs' reliance on the Court of Appeals decision
in Nixon v. Sirica to support its contention that Congress
may force disclosure of the President's confidential con-
versations and documents is not only misplaced, but is
significantly demonstrative of the extraordinary request
it makes of the Court. Plaintiffs admit that Nixon v. Sirica
was decided in the context of a grand jury subpoena. They
recognize that the President has already disclosed to the
1145
27
grand jury the evidence at issue here. Nevertheless these
plaintiffs accuse Richard M. Nixon of suppressing evidence
and ask this Court to rule that a congressional committee
may completely disregard a claim of executive privilege
by purporting to investigate "executive wrongdoing." Such
an accusation is irresponsible. Such a claim of power is
historically and constitutionally unsupportable. As the
Court of Appeals clearly stated in its opinion in Nixon v.
Sirica , "We recognize this great public interest, and agree
with the District Court that such conversations are pre-
sumptively privileged." Id^. at 30.
The President has refused disclosure to this Committee
because he has determined that such disclosure would be
contrary to the pviblic interest. The President, even more
so than the members of this Congressional Committee, is
the elected representative of all people. Therefore, the
President owes a duty to the people to maintain the
constitutional integrity of the office he occupies.
Whenever any branch of the Government exceeds the
limits of the grant made to it by the Constitution,
it, to that extent, ceases to represent the people
and assumes arbitrary power. Defense by the
Executive of his Constitutional powers becomes, in
very truth, therefore, defense of popular rights —
defense of power which the people granted to him.
It was in that sense that President Cleveland spoke
of his duty to the people not to relinquish any of
the powers of his great office. It was in that
sense that President Buchanan stated the people
have 'rights and prerogatives' in the execution
of his office by the President which every President
is under a duty to see 'shall never be violated in
his person' but 'pass to his successors unimpaired
by the adoption of a dangerous precedent. ' In
maintaining his rights against a trespassing
Congress, the President defends not himself but
popular Government; he represents not himself but
the People.
Warren, Presidential Declarations of Independence , 10 Bos.
U. L. Rev. 1, 35 (1930) .
Maintenance of executive confidentiality as provided
by the constitutional separation of powers has been recognized
by this Court in its opinion in Misc. No. 47-73, Opinion at
5, 7-8; and by the Court of Appeals in Nixon v. Sirica ,
supra at 30.
1146
28
p
We reassert the importance of that principle here,
but before dealing with it in detail it is necessary to
discuss the basis for plaintiffs' claim of the right to
information and the basis for the President's refusal to
furnish it.
A. Basis for Executive Privilege.
Plaintiffs refer in a previously submitted "Historical
Appendix" to a series of instances where Presidents and
their aides have cooperated with Congressional requests for
information. Their analysis includes instances where either
testimony or documents were furnished to Congress by the
Executive on a voluntary basis. Although plaintiffs' uses
As his Ninth Defense to plaintiffs' original
complaint, the President asserted that the subpoena
attached as Exhibit D to plaintiffs' Complaint was
so unreasonably broad and oppressive as to make
compliance impossible. This should be obvious from
the face of the subpoena itself. It specifies no time
period and demands a wide variety of records relating
to 25 persons on a nxomber of different subjects.
Compliance would require a complete review of virtually
all records in the White House. Needless to say, there
await for future litigation three additional subpoenas
of such extraordinary breadth that it is inaccurate to
characterize them merely as overbroad and oppressive.
If it would be helpful to the Court in considering
vrtiat we believe is the apparent overbreadth of the
pending demands, both in the instant case and future
cases, appropriate affidavits will be filed to sustain
the President's position on this issue.
1147
29
9
of history must be relied on with the utmost caution, it is
of course true that this President, like all of his predeces-
sors, has often made voluntary disclosures of information
sought by Congress. Plaintiffs have not cited any authority,
either historical or legal, for the proposition that a
President can be compelled to furnish information to the
Congress. There is good reason for this. There is no such
authority.
In their original papers, including the "Historical
Appendix," plaintiffs' sole reliance for history is on
an article by Raoul Berger, which they cite 15 times.
Professor Berger is a reputable scholar and a provoca-
tive analyst but he is not always accurate in his
statement of history. Thus at page 5 of the "Historical
Appendix" plaintiffs cite the Berger article for the
proposition that President Jefferson "fully complied"
with the subpoena issued against him in the Burr litiga-
tion. This is simply not true. The facts are fully
developed by Judge Wilkey at pages 41-55 of his dissent
in Nixon v. Sirica . They show that ultimately Jefferson
sent a copy of the letter with a certificate reciting
that he had omitted "some passages entirely confidential,
given for my information in the discharge of my executive
functions, and which my duties and the public interest
forbid me to make public." 9 Ford, Writings of Thomas
Jefferson 64 (1898) . See also 3 Beveridge, Life of
John Marshall 518-522 (1919) .
Again in a footnote at page 24 of their original brief,
plaintiffs cite the Berger article for the following
proposition: "President Jackson, for example, refused
to produce documents relating to wrongdoing by a former
executive official, but only on the ground that the
congressional investigation was being conducted in
camera , thus depriving the individual in question of
an opportunity for public vindication." President
Jackson's message of February 10, 1835, referred to by
plaintiffs, appears at 3 Richardson, Messages and
Papers of the Presidents, 1789-1897 132 (1897) . The
latter occupies three printed pages. The bulk of it
discusses the fact that the demand encroaches on the
constitutional powers of the Executive and that if
Congress does not like what the President is doing it
should impeach him. After a lengthy discussion of this
point there are two sentences in which Jackson refers to
the fact that the papers would be considered in executive
session. Following that he states again his original
objection to the demand. Thus the statement by plaintiffs
that he refused compliance only on the ground that the
hearing was being conducted i_n camera is a gross distortion
of the historical fact.
1148
30
There are, however, many instances where Presidents
have refused to furnish information to Congress and, in
each case, the refusal has been accepted.
The frequently exercised, long-standing freedom of
the Executive to refuse demands by Congress for the product-
ion of documents does not require extended discussion. Under
the Continental Congress, the relationship between Legislature
and Executive had been modeled on the British system. The
executive departments were, in effect, answerable to the
Legislature, and could be called on for an accounting. A
resolution of the Continental Congress creating the Depart-
ment of Foreign Affairs, whose head was appointed by and
held office at the pleasure of Congress, provided:
That the books, records and other papers of the United
States, that relate to this department be committed to
his custody, to which, and all other papers of his
office, any member of Congress shall have access:
provided that no copy shall be taken of matters of a
secret nature without the special leave of Congress.
10 It seems ironic indeed that the plaintiffs suggest
'on one hand that their investigation has been "emasculated"
by Presidential refusals to disclose information and on
the other hand urge that the extent of Presidential
disclosure constitutes a waiver. Both arguments are
equally unsupported. The President voluntarily has
allowed unprecedented access to the testimony and
memoranda of top assistants. However such cooperation
hardly amounts to a waiver of all executive privilege.
United States v. Reynolds, 345 U. S. 1, 11 (1953) holds
specifically to the contrary. As Alexander Bickel has
decisively observed, "Far from being waived, the privilege,
it seems to me, is as much exercised when information is
released as when it is withheld." Bickel, Wretched
Tapes (cent. ) , N. Y. Times, August 15, p. 33.
1149
31
This was completely changed by the Constitution in
establishing the three independent branches. See Wolkinson,
Demands of Congressional Committees for Executive Papers ,
10 Fed. Bar J, 319, 328-330 (1949) .
Since then there has arisen an often asserted, much
discussed, and well recognized privilege of the President
to deny Congress access to docioments whenever either the
President or the head of a department has deemed it in the
public interest to do so. From the administration of
Washington to the present. Presidents have repeatedly
asserted the privilege, and, when forced to a showdown.
Congress has always yielded and ceased to press its
demands. ^■'- A recent instance was the refusal of President
Truman to turn over to the House Committee on Un-American
Activities files relating to the federal employee loyalty
program. Directive of March 13, 1948, 13 Fed. Reg. 1359
(1948) .
11 The following is a partial list of examples of suc-
cessful assertions of the privilege, comprising partly
assertions by the President and partly assertions by
department heads :
President
Washington
Jefferson
Monroe
JacJcson
Date Type of Information
Refused
1796 Instructions to U. S.
Minister concerning
Jay Treaty.
1807 Confidential informa-
. tion and letters re-
lating to Burr ' s
conspiracy.
1825 Documents relating to
conduct of naval
officers.
1833 Copy of paper read by
President to heads of
Departments relating
to removal of bank
deposits.
1835 Copies of charges
against removed public
official.
List of all appointments
made without Senate's
consent between 1829
and 1836, and those
receiving salaries
without holding office.
1150
32
President Truman was persistent in his refusals to
the House Committee on Un-American Activities. In 195 3,
President
Date
Tyler
1842
1843
Polk
Fillmore
Buchanan
Lincoln
Grant
Hayes
1846
1852
1860
1861
1876
1877
Cleveland
1886
Theodore Roosevelt 1909
Coolidge
1924
Type of Information
Refused
Names of members of 2 6th
and 27th Congress who
have applied for office.
Colonel Hitchcock's report
to the War Department
dealing with alleged
frauds practiced on
Indians, and his viev;s
of personal characters
of Indian delegates.
Evidence of payments
made through State
Department on Presi-
dent's certificates,
by prior administration.
Official information
concerning proposition
made by King of Sand-
wich Islands to transfer
to U.S.
Message to Protest to
House against Resolution
to investigate attempts
by Executive to influ-
ence legislation.
Dispatches of Major
Anderson to the War
Department concerning
defense of Fort Sumter.
Information concerning
executive acts per-
formed away from
Capitol .
Secretary of Treasury
refused to answer
questions and to
produce papers con-
cerning reasons for
nomination of Theodore
Roosevelt as Collector
of Port of New York.
Documents relating to
suspension and removal
of 650 Federal officials.
Attorney General's reasons
for failure to prosecute
U. S. Steel Corporation.
Documents of Bureau of
Corporations, Department
of Commerce.
List of companies in
which Secretary of
Treasury Mellon was
interested.
1151
33
after he left the White House, he refused to honor a
subpoena of the Committee that he appear and give testi-
mony on charges that he and then Attorney General Tom C.
President Date
Hoover 1930
1932
Franklin D. Roosevelt 1941
1943
I
1943
1943
1943
Truman
1944
1945
1947
Type of Information
Refused
Telegrams and letters
leading up to London
Naval Treaty.
Testimony and doc\anients
concerning investiga-
tion made in Treasury
Department.
Federal Bureau of Investi-
gation reports.
Director, Bureau of
Budget, refused to
testify and to pro-
duce files.
Chairman, Federal Com-
munications Comm. , and
Board of War Communica-
tions refused records.
General Counsel, Federal
Communications Commis-
sion, refused to pro-
duce records.
Secretaries of War and
Navy refused to fur-
nish documents, and
permission for Army
and Naval officers to
testify.
J. Edgar Hoover refused
to give testimony and
to produce President's
directive.
Issued directions to heads
of executive departments
to permit officers and
employees to give infor-
mation to Pearl Harbor
Committee, but the
President's directive
did not include any
files or written material.
Civil Service Commission
records concerning
applicants for positions.
See Wolkinson, Demands of Congressional Committees for
Executive Papers, 10 Fed. Bar J. 103, 1^7 (1949) .
More recent examples are described in Kramer & Marcuse,
Executive Privilege — A Study of the Period 1953-1960, 29
Geo. Wash. L. Rev. 623 (part 1) and 827 (part 2) (1961) .
See also Younger, Congressional Investigations: A Study in
the Separation of Powers, 20 Univ. Pitt. L. Rev. 755 (1959) .
1152
34
Clark knowingly promoted an enemy agent. President Truman
stated:
I am carrying out the provisions of the Constitution
of the United States; and am following a long line of
precedents, commencing with George Washington himself
in 1796. Since his day. Presidents Jefferson, 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 from Congress. .
***
The doctrine would be shattered, and the President,
contrary to our fundamental theory of constitutional
government, would become a mere arm of the Legislative
Branch of the government 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 .
N. Y. Times, November 13, 1953, p. 13. Following receipt
of the strongly worded letter from President Truman, the
committee declined to press the matter further.
Reference to this unbroken record of successful asser-
tions of privilege in practice is particularly significant in
illustrating the constitutionally implied separation of
powers. In the construction of any clause of the Constitution
uninterrupted usage continuing from the early days of the
Constitution would be of great weight.
Both officers, lawmakers and citizens naturally adjust
themselves to any long-continued action of the Executive
Department — on the presumption that unauthorized acts
would not have been allowed to be so often repeated as
to crystallize into a regular practice. That presumption
is not reasoning in a circle but the basis of a wise and
quieting rule that in determining the meaning of a
statute or the existence of. a power, weight shall be
given to the usage itself — even when the validity
of the practice is the subject of investigation.
United States v. Midwest Oil Co., 236 U. S. 459, 472-473 (1915);
United States v. MacDaniel, 7 Pet. (7 U.S.) 1, 13-14 (1833).
Here, moreover, because the doctrine of separation of powers
is not contained in express language in the Constitution,
Ex parte Grossman, 267 U.S. 87, 119 (1925), and because the
functioning of our Government depends so l2irgely upon limits
on the powers of each branch derived from practical adjust-
ments based on a fair regard by each for the necessities
of the others, we think that the historic usage is especially
meaningful. "Even constitutional power, when the text is
1153
35
doubtful, may be established by usage." Inland Waterways Corp.
V. Young, 309 U.S. 517, 525 (1940) . In the Pocket Veto Case,
279 U.S. 655 (1929), the Court reviewed the legality of a
Presidential pocket veto of a bill that would have allowed
certain Indian tribes to sue in the Court of Claims. In
upholding the President's exercise of that power the Court
stated:
The views which we have expressed as to the construction
and effect of the constitutional provision here in
question are confirmed by the practical construction
that has been given to it by the Presidents through
a long course of years, in which Congress has acquiesced.
Long settled and established practice is a consideration
of great weight in a proper interpretation of constitu-
tional provisions of this character.
279 U.S. at 688-689.
These successful executive assertions of privilege
against Congress have frequently been acknowledged by
Congress itself. A typical example of this Congressional
acknowledgment occurred during the Senate hearings on
President Truman's dismissal of General MacArthur.
Military Situation in the Far East, Hearings before the
Committee on Armed Services and the Committee on Foreign
Relations, U.S. Senate, 82nd Cong., 1st Sess. (1951), at
763, 76 5. General Omar Bradley was questioned about a
meeting with the President, George Marshall, and Dean
Acheson. Gen. Bradley replied, "Senator, at that time
I was in a position of a confidential advisor to the
President. I do not feel at liberty to publicize what
any of us said at that time." Chairman Richard Russell
was quick to recognize the necessity for such confiden-
tiality and upheld the claim of privilege stating:
I know that in my opinion any conversation with
respect to any of my actions that I might have,
any conference I might have with my administra-
tive assistant in my office I think should be
protected, and it is my own view, and I so rule,
that any matter that transpired in the private
conversation between the President and the Chief
of Staff as to detail can be protected by the
witness ii he so desires, and if General Bradley
34-966 O - 74 - pt. 1 - 74
1154
36
relies upon that relationship, so far as the
Chair is concerned, though I regret very nuch
that the issue was raised and I am compelled
to pass on it, I would rule that he be protected.
Hearings at 765. The Chairman's decision upholding the
claim of privilege subsequently was ratified after
extensive debate for several days by a Committee vote
of 18-8. Hearings at 872. See also, e.g. H.Rep. No.
1595, 80th Cong., 2nd Sess., (1948) at 2-3, 7. Even
in the heat of contest members of Congress have
recognized the wisdom of acceding to the constitutional
principles here asserted by the President.
During the administration of President Hayes, for
example, the House Judiciary Committee, under the chair-
manship of Benjamin F. Butler, pointed out that all
resolutions directed to the President relating to the
production of records properly would contain the clause
"if in his judgment not inconsistent with the public
interest." H.Rep. No. 141, 45th Cong., 3rd Sess.,
(1879) , at 3. And the Committee continued. Id. at 3
and 4 :
* * * whenever the President has returned (as
sometimes he has) that, in his judgment, it
was not consistent with the public interest
to give the House such information, no further
proceedings have ever been taken to compel the
production of such information. Indeed, upon
principle, it would seem that this must be so.
The Executive is as independent of either house
of Congress as either house of Congress is
independent of him, and they cannot call for
the records of his action or the action of
his officers against his consent, any more
than he can call for any of the journals and
records of the House or Senate.
The decision as to whether there should be compliance with
a particular request was the Executive's, the committee
stated:
Somebody must judge upon this point. It clearly
cannot be the House or its committee, because
they cannot know the importance of having the
doings of the executive department kept secret.
The head of the executive department, therefore.
1155
38
During the hearings on the nomination of the Honorable
Abe Fortas to be Chief Justice of the United States, Senator
Ervin began to question the nominee about his participation
in discussions with President Johnson that led to an order
sending federal troops into Detroit. Senator Ervin then
said, however: "I will not insist upon your answer, because
it is a prerogative of communications in the executive branch
of the Government." Hearings before the Committee on the
Judiciary, U.S. Senate, Nominations of Abe Fortas and
Homer Thornberry, 90th Cong., 2d Sess. (1968), at 124. The
question was not answered. At a later point, in response
to a different question from Senator Ervin, Justice Fortas
answered:
Senator, I will not go into any conversations, either
to affirm them or to deny them, that I have had with
the President. I ask you please to understand that,
and please to excuse me. I know hov; easy it is to
say no, the President did not say something to me.
But the question is "What did he say?" would follow,
and so on. I must ask you to indulge me to this
extent. I have endeavored Senator, and Mr. Chairman,
to err, if I erred, on the side of frankness and
candor with this committee. But I think that it
is my duty to observe certain limits, and one of
those limits is any conversation, either affirmance
or denial, that I may have had with the President
of the United States.
Id. at 167-168. Later in the hearings. Senator McClellan
said to the nominee:
I am not quarrelling with your position that you
cannot say and do not want to say what conversa-
tions you may have had with the President. I
respect that position if you wish to take it.
Id. at 225. At no point in the hearings did any Senator
disagree with these views of Senator Ervin, Justice Fortas,
and Senator McClellan.
During the hearings before the Senate Judiciary Committee
relating to the nomination of Mr. Richard G. Kleindienst as
Attorney General, Mr. Peter Flanigan, Special Assistant to
the President, was invited to appear and testify about ITT
matters. The Counsel to the President responded by pointing
out that under the doctrine of separation of powers and long
1156
37
must be the judge in such case and decide it
upon his own responsibility to the people, and
to the House, upon a case of inpeachment
brought against him for so doing, if his acts
are causeless, malicious, willfully wrong, or
to the detriment of the public interests.
There are many other instances of Congressional recog-
nition of the executive privilege, vis-a-vis Congress,
including one which gave rise to a great congressional
debate, occupying the Senate for almost two weeks, during
President Cleveland's first administration. 17 Cong.
Rec. 2211-2814 (1886). See Sen. Misc. Doc, Vol. 7, 52d
Cong., 2d Sess. (1886), at 235-243; 8 Richardson, Messages
and Papers of the Presidents 375-383 (1886) ; 17 Cong. Rec.
4095 (1886) . In the course of this debate many past
examples of executive refusals to produce papers demanded
by Congress were discussed. See, e.g., 17 Cong.
Rec. 2622-2623 (1886). -"-^
A more recent instance was the congressional reaction
to President Kennedy's refusal to disclose the natmes of
Defense Department speech reviewers. Committee on Armed
Services, U.S. Senate, Military Cold War Escalation and
Speech Review Policies, 87th Cong. , 2d Sess. (1962) ,
at 338, 369-370, 508-509, 725, 730-731. The Senate
Subcommittee, speaking through Senator Stennis, conceded:
We now come face to face and are in direct
conflict with the established doctrine of
separation of powers * * * ^
I know of no case where the Court has ever
made the Senate or the House surrender records
from its files, or v;here the Executive has
made the Legislative Branch surrender records
from its files — and I do not think either
one of them could. So the rule works three
ways. Each is supreme within its field, and
each is responsible within its field.
Id. at 512.
12 This debate ended with the approval by the Senate,
in a vote on party lines, of resolutions condemning
the President and the Attorney General. No result
came from the resolutions. See 17 Cong. Rec. 2813-
2814 (1886) .
1157
39
established historical precedents, members of the President's
immediate staff do not appear and testify before congressional
committees with respect to the performance of their duties.
Thereafter, the Senate Judiciary Committee adopted a resolution
on April 18, 1972, in which it was agreed that Mr. Flanigan
"is not required to testify to any knowledge based on confi-
dential communications between him and the President or between
him and other aides of the President." Thereafter, a
Presidential Assistant appeared and testified to the matters
agreed to. Hearings before the Committee on the Judiciary,
U.S. Senate, Nomination of Richard G. Kleindienst, of Arizona,
to be Attorney General. 92nd Cong., 2d Sess . (1972), at
1630-1631.
B. The Need for Confidentiality.
There has long been general recognition that high
officers in every branch of government cannot function
effectively unless they are able to preserve the confiden-
tiality of their communications with their intimate advisers.
This recognition extends even to plaintiffs in this case.
Professor Dash has stated that "We are not, as I have
indicated, asking for any ruling by this Court that the
President doesn't have Executive Privilege. He certainly
does." Transcript at 25. Professor Dash also advised this
Court that :
Senator Ervin, Chairman of the Committee, has
frequently stated that he concurs and agrees
there must be an Executive Privilege where the
President must be in a position to be able to
withhold certain materials in order to preserve
confidentiality, (emphasis supplied)
Transcript at 11. Such a recognition by plaintiffs is no
more than awareness of both the practical necessity and
judicial approbation of executive confidentiality.
In Environmental Protection Agency v. Mink, 410 U.S. 73,
87 (1973) , the Court quoted with approval the statement of
Justice Reed, sitting by designation in the Court of Claims,
1158
40
in Kaiser Aluminum &^ Chemical Corp. v. United States ,
157 F.Supp. 939, 946 (Ct.Cl. 1958):
There is a public policy involved in this claim of
privilege for this advisory opinion — the policy
of open, frank discussion between subordinate and
chief concerning administrative action.
Discussions of this kind are regarded as privileged "for the
benefit of the public, not of executives who may happen to
then hold office," Id. at 944, since it is the public that
is served when those who represent it are able to make
important decisions with the wisdom that only open and frank
discussion can provide. Judge Robinson has spelled out this
point more fully:
This privilege, as do all evidentiary privileges,
affects an adjustment between important but competing
interests. There is, on the one hand, the public
concern in revelations facilitating the just resolu-
tion of legal disputes, and, on the other, occasional
but compelling public needs for confidentiality. In
striking the balance in favor of nondisclosure of
intra-governmental advisory and deliberative com-
munications, the privilege subserves a preponderating
policy of frank expression and discussion among those
upon whom rests the responsiblity for making the
determinations that enable government to operate, and
thus achieves an objective akin to those attained
by other privileges more ancient and commonplace in
character. Nowhere is the piiblic interest more
vitally involved than in the fidelity of the
sovereign's decision and policymaking resources.
Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318,
324-325 (D.D.C. 1966), affirmed on the opinion below 384 F.2d
979, cert, denied 389 U.S. 952 (1967). See also 5 U.S.C.
§ 552(b) (5); Rogers, The Right to Know Government Business
From the Viewpoint of the Government Official, 40 Marq.L.Rev.
83, 89 (1956) .
This case concerns the ability of the President to enjoy
confidentiality in carrying out his official duties. But this
important privilege is not one that is available only to assist
the functioning of the President, or the Executive Branch
generally. As Judge Wilkey recently wrote, "the privilege
against disclosure of the decision-making process is a
tripartite privilege, because precisely the same privilege
in conducting certain aspects of public business exists for the
1159
41
legislative and judicial branches as well as for the executive."
Soucie V. David, 448 F.2d 1067, 1080 (1971) (concurring opinion).
Although Professor Arthur Selwyn Miller and a collaborator
have recently argued to the contrary. Miller & Sastri, Secrecy
and the Supreme Court: On The Need for Piercing the Red Velour
Curtain, 22 Buff. L. Rev. 799 (1973) , it has always been
recognized that judges must be able to c:onfer with their
colleagues, and with their law clerks, in circumstances of
absolute confidentiality. Justice Brennan has written that
Supreme Court conferences are held in "eibsolute secrecy" for
"obvious reasons." Brennan, Working at Justice, in An
Autobiography of the Supreme Court 300 (Westin ed. 1963) .
Justice Frankfurter had said that the "secrecy that envelops
the Court's work'' is "essential to the effective functioning
of the Court." Frankfurter, i^. Justice Roberts, 104 U.Pa.L.Rev.
311, 313 (1955). And only two years ago Chief Justice Burger
analogized the confidentiality of the Court to that of the
Executive, and said:
No statute gives this Court express power to
establish and enforce the utmost security
measures for the secrecy of our deliberations
and records. Yet I have little doubt as to
the inherent power of the Court to protect
the confidentiality of its internal opera-
tions by whatever judicial measures may be
required.
New York Times Co. v. United States, 403 U.S. 713, 752 n. 3
(1971) (Burger, C.J. dissenting) . In the recent contempt ^y^
proceeding arising out of the trial of the Chicago Seven,
Judge Gignoux refused to allow the defense even to call as
a witness a person who had been law clerk to Judge Hoffman
at the time of the original trial, on the ground that every-
thing that a law clerk knows about his judge is privileged.
The Judiciary works in conditions of confidentiality
and it claims a privilege against giving testimony about
the official conduct. of judges. Statement of the Judges ,
1160
42
14 F.R.D. 335 (N.D.Cal. 1953). See also the letter of
Justice Tom C. Clark, refusing to respond to a subpoena
to appear before the House Un-American Activities Committee,
on the ground that the "complete independence of the judi-
ciary is necessary to the proper administration of justice."
N. Y. Times, Ncv. 14, 1953, p. 9.
A similar need for confidentiality, and an insistence
that it cannot be breached by other branches of government,
applies in the Legislative Branch. Neither a member of
Congress nor his legislative aides can be compelled to
disclose communications between the member and his aides
relating to any legislative act of the member. Gravel v.
United States, 408 U.S. 606, 629 (1972). It is immaterial
that these communications might show criminal acts. 408 U.S.
at 615. These aspects of the Gravel decision reflect in
large part acceptance by the Court of the arguments presented
by Senator Ervin and seven other Senators on behalf of the
Senate as amicus curiae in that case. As reprinted in the
Congressional Record, the amicus brief argued in part:
To isolate a Senator so that he cannot call upon
the advice, counsel and knowledge of his personal
assistants is to stop him from functioning as an
independent legislator. If an aide must fear that
the advice he offers, the knowledge he has, and
the assistance he gives to his Senator may be
called into question by the Executive, then he is
likely to refrain from acting on those very occa-
sions when the issues are the most controversial
and when the Senator is most in need of assistance.
The Congressional privilege based upon an express
Constitutional provision to encourage the free
exchange of ideas and information can hardly be
less extensive than the Executive privilege which
has not express statutory or Constitutional basis
and whose sole purpose is secrecy. Yet the
Executive privilege has been extended to the
activities of persons whose relationship to the
President is far more remote than the relation-
ship of an aide to a Senator.
The need fot protecting the confidential relation-
ships between the President and his aides, as the
Government has asserted in defending the Executive
privilege, is pari passu applicable to the need
for protecting the relationship between Senators
and their aides.
Cong. Rec. S5856, S5857 (daily ed. April 11, 1972) .
1161
43
Again it is the long established practice of each
House of Congress to regard its ov/n private papers as
privileged. No court subpoena is complied with by the
Congress or its committees without a vote of the House
concerned to turn over the documents. Soucie v. David,
448 F.2d 1067, 1081-1082 (1971). This practice is
insisted on in Congress even when the result may be to
deny relevant evidence in a criminal proceeding either
to the prosecution or to the accused person. -^
13 See, e.g., 108 Cong. Rec. 3626 (1962), showing Senate
adoption of a resolution permitting staff members
and former staff members of a Senate Committee to
appear and to testify in a criminal proceeding against
James Hoffa but forbidding them from taking any docu-
ments or records in the custody of the Senate and
from testifying about information that they gained
while employed in the Senate. In explaining the
resolution to the Senate, Senator McClellan said in
part: "The Senate recognizes it has certain privileges
as a separate and distinct branch of Government, which
it wishes to protect." Id. at 3627.
On July 16, 1970, counsel for 1st Lt. William L.
Galley, Jr., moved in his court-mar ial proceeding
for production of testimony concerning the My Lai
incident that had been presented to a subcommittee
of the House Committee on Armed Services in executive
session. Lt. Calley claimed that this testimony
would be exculpatory of him and would help him es-
tablish his defense in the court-martial. The sub-
committee Chairman, Rep. F. Edward Hebert, refused
to make the testimony available, advising defense
counsel on July 17, 1970, that Congress is "an
independent branch of the Government, separate from
but equal to the Executive and Judicial branches,"
and that accordingly only Congress can direct the
disclosure of legislative records. He concluded
from this that the material 'requested by the defense
was not within the rule of Brady v. Maryland,
373 U.S. 83 (1963), nor subject to the requirements
of the Jencks Act, 18 U.S.C. § 3500. Subsequently
the military court issued a subpoena to the Clerk
of the House of Representatives. The Speaker laid
this before the House on November 17, 1970, 116
Cong. Rec. 37652 (197 0) , but to date the House has
taken no action nor given any indication that it
will supply the information sought.
1162
44
Plaintiffs nonetheless argue that neither Congressmen
nor grand or petit jurors enjoy privilege to "suppress
evidence relating to official misconduct." Memorandum on
Remand at 26-27. This argument and its reliance on United States
V. Gravel, supra. United States v. Brewster, 408 U.S. 501,
521 (1972) , and Clark v. United States, 289 U.S. 1 (1933) ,
simply is not applicable to this case. None of the cases
cited by plaintiffs, including Gravel ,. Brewster, and Clark,
involve congressional requests for evidence. They all
were cases in which a grand jury investigation of alleged
misconduct overcame historically recognized claims of
confidentiality. Those decisions were based, as v;as the
decision in Nixon v. Sirica , on the traditional role of
the grand jury in investigating criminal activity. Here
all evidence being sought by this committee has been
delivered voluntarily to the grand jury by the President.
There is no "suppression of evidence" by the President.
There is no frustration of any law enforcement activity
or judicial proceeding. There is, however, a determination
by the President that these plaintiffs not be allowed to
undercut the independence and integrity of the executive
branch.
These plaintiffs cannot claim to require these
confidential materials in order to indict or accuse guilty
persons. That is the role of a grand jury, and properly
so, since it is incomprehensible that formal claims of
executive privilege would be overruled each time a
congressional committee decided to investigate imagined
"executive wrongdoing".
These considerations of ^public policy are particularly
compelling when applied to Presidential communications
with his advisers.
1163
45
Inseparable from the modern Presidency, indeed
essential to its effective operation, is a
whole train of officers and offices that serve
him as eyes, ears, arms, mouth, and brain.
Rossiter, The American Presidency 97 (1956) . Nor is it
only those who are part of his staff with whom the
President must be able to talk. He must be able to
confer with foreign leaders and with representatives of
every element in American public. He must be free to
look for advice to anyone whose advice he trusts, whether
in or out of government. The late Dean Acheson and
former Justice Abe Fortas are merely recent and con-
spicuous examples of persons who were consulted by
Presidents on critical public issues at times that they
held no pxiblic office. "The President is, as he should
be, entirely free, * * * like all who preceded him, to
take counsel with private citizens." Id. at 10 3.
For the Presidency to work effectively and for the
President to get candid advice from those to whom he
turns it is absolutely essential that he be able to
protect the confidentiality of these communications.
As stated by the President on July 6, 1973, in his
letter to Senator Sam J. Ervin:
No President could function if the private papers
of his office, prepared by his personal staff,
were open to public scrutiny. Formulation of
sound public policy requires that the President
and his personal staff be able to communicate
among themselves in complete candor, and that
their tentative judgments, their exploration
of alternatives, and their frank comments on
issues and personalities at home and abroad
remain confidential.
This has been the position of every President in
our history, and it has been specifically stated by
President Nixon's immediate predecessors. Writing his
memoirs in 19 55, President Truman explained that he had
found it necessary to omit certain material, and said:
"Some of this material cannot be made available for
1164
46
many years, perhaps for many generations." 1 Truman,
14
Memoirs x (1955) . President Eisenhower stated the
point with force on July 6, 1955, in connection with
the Dixon-Yates controversy:
But when it comes to the conversations that take
place between any responsible official and his
advisers or exchange of little, mere little slips
of this or that, expressing personal opinions on
the most i;onf idential basis, those are not subject
to investigation by anybody, and if they are, will
wreck the Government.
There is no business that could be run if there
would be exposed every single thought that an
adviser might have, because in the process of
reaching an agreed position, there are many,
many conflicting opinions to be brought together.
And if any commander is going to get the free,
unprejudiced opinions of his subordinates, he
had better protect what they have to say to him
on a confidential basis.
Public Papers of Presidents of the United States : D^^7ight
D. Eisenhower 1955 674 (1959) .
Congress itself recognized the high degree of
confidentiality that must attach to Presidential papers
for many years when it enacted the Presidential Libraries
Act of 1955, Pub. L. 84-373, 69 Stat. 695 (1955), now
codified in 44 U.S.C. §§ 2107, 2108. That statute
encourages Presidents to give their papers to a
Presidential library, and provides that papers, documents,
and other historical materials so given "are subject to
14 President Truman's strong feelings concerning the
necessity for confidentiality were discussed by his
daughter in a recent biography:
Lately some historians have criticized Dad because
he has refused to open his confidential files. But
Dad is not acting out of selfish motives. From the
day he left office he was conscious that he still
had heavy responsibilities as an ex-president. Dur-
ing his White House years a president gets advice
from hundreds of people . He wants it to be good
advice. He wants men to say exactly what they think,
to tell exactly what they know about a situation or
a subject. A President can only get this kind of
honesty if the man who is giving the advice knows
what he says is absolutely confidential, and will
not be published for a reasonable number of years
after the president leaves the White House.
Truman, Harry S. Truman 562 (1973).
1165
47
restrictions as to their availability and use stated in
writing by the donors or depositors* * *. The restric-
tions shall be respected for the period stated, or until
revoked or terminated by the donors or depositors or by
persons legally qualified to act on their behalf." 44
U.S.C. § 2108 (c) ; Nichols v. United States , 460 F.2d
671 (10th Cir. 1972). Since that Act was passed the gifts
of Presidential papers of Presidents Eisenhower, Kennedy,
and Johnson have all specified that "materials containing
statements made by or to" the President are to be kept "in
confidence" and are to be held under seal and not revealed
to anyone except the donors or archival personnel until
"the passage of time or other circumstances no longer
require such materials being kept xander restriction."
Letter of April 13, 1960, from President Dwight D. Eisenhower
to the Administrator of General Services; Agreement of
Feb. 25, 1965, between Mrs. Jacqueline B. Kennedy and the
Uhited States; Letter of Aug. 13, 1965, from President
Lyndon B. Johnson to the Administrator of General Services.
In addition, the letters from President Eisenhower and
from President Johnson specifically prohibit disclosure
to "public officials" and state, as the reason for these
restrictions, that "the President of the United States is
the recipient of many confidences from others, and * * *
the inviolability of such confidence is essential to the
functioning of the constitutional office of the Presidency
* * * _ "
The need to preserve the confidentiality of the Oval
Office has been recognized from without as well as by those
who have borne the burdens of service there. VJhat Justice
Stewart, who was joined by Justice White, said in his con-
curring opinion in New York Times Co. v. United States ,
403 U.S. 713, 727 (1971), has great force:
1166
48
And within our own executive departments, the develop-
ment of considered and intelligent international
policies would be impossible if those charged with ■
their formulation could not communicate with each
other freely, frankly, and in confidence. * * *
* * * [I]t is clear to me that it is the constitutional
duty of the Executive — as a matter of sovereign
prerogative and not as a matter of law as the courts
know law — through the promulgation and enforcement
of executive regulations, to protect the confiden-
tiality necessary to carry out its responsibilities
in the fields of international relations and national
defense.
403 U.S. at 728, 729-730.
Other justices of the Supreme Court have expressed
their views on congressional assults on Presidential
confidentiality. Justice Douglas has written: "In
defending himself against investigation by Congress every
President has acted rightfully. In refusing to be inves-
tigated by Congress he defends popular sovereignty and
the separation of powers." Douglas, Anatomy of Liberty
72 (1963) . Justice Douglas also is cognizant of the long
tradition of Presidential refusals to yield to congressional
demands for information:
Each President — from Washington to Kennedy — has
deemed it to be in his prerogative not to disclose
certain information to the legislative branch. Taft
defended that principle, saying a President can keep
information confidential 'if he does not deem the
disclosure of such information prudent or in the public
interest. ' Certainly much information must be kept
secret; at least, the President might so believe.
Defense items, the operations of diplomatic missions,
the comm.unications with our embassies or legations --
these are sensitive matters. Moreover, employees of
the executive branch are in a chain of command leading
up to the President. If any of them can be summoned
and interrogated as to how he advised his superior,
what memoranda he wrote, what conversation he has
had, a disruptive influence would be injected into
the executive branch. Then the employee would look
to Congress and not have undivided loyalty to his
superior in the executive branch.
Douglas at 74-75.
Prior to his appointment to the Court Justice Rehnquist
was an Assistant Attorney General in the Department of Justice.
1167
49
As head of the Department's Office of Legal Counsel he
spoke out strongly in support of the necessity for
Presidential confidentiality before the Senate Judiciary
Conunittee :
Finally, in the area of Executive decisionmaking,
it has been generally recognizee that the President
must be free to receive from his advisers absolutely
impartial and disinterested advice, and that those
advisers may well tend to hedge or blur the sub-
stance of their opinions if they feel that they
will shortly be second-guessed by Congress, by
the press, or by the public at large, or that the
President might be embarrassed if he had to explain
why he did not follow their recommendations. Again,
the aim is not for secrecy of the end product --
the ultimate Presidential decision is and ought to
be a subject of the fullest discussion and debate,
for which the President must assume undivided
responsibility. But few would doubt that the
Presidential decision will be a sounder one if
the President is able to call upon his advisers
for completely candid and frequently conflicting
advice with respect to a given question.
Executive Privilege: The Withholding of Information by
the Executive , Hearing before the Subcommittee on
Separation of Pov/ers of the Committee on the Judiciary,
U. S. Senate, 92nd Congress, 1st Session (1971) at 424-25.
Of course international relations and national defense
have very special claims to secrecy, but the importance of
the President being able to speak with his advisers "freely,
frankly, and in confidence" is not confined to those matters.
It is just as essential that the President be able to talk
openly with his advisers about domestic issues as about
military or foreign affairs. The wisdom that free dis-
cussion provides is -as vital in fighting inflation, in
choosing Supreme Court Justices , in deciding whether to
veto a large spending bill, and in the myriad other
important decisions that the President must make in his
roles as Chief of State, Chief Executive, and Chief
Legislator as it is when he is acting as Chief Diplomat
or as Commander-in-Chief. Any other view would fragment
the executive power vested in him and would assume that
some of his constitutional responsibilities are more
important than others. It is true that the President has
1168
more substantive freedom to act in foreign and military
affairs than he does in domestic affairs, but his need
for candid advice is no different in the one situation
1 5
than in the other.
Former Justice Fortas, who advised President Johnson
on both foreign and domestic matters, has said that a
President must have "confidence that he can have advisers
to whom he can trust his inmost thoughts. A President
has to have this, just as a citizen can go to a doctor
or a lawyer, a priest or a psychiatrist, to discuss his
problems, without fear of disclosure of his confidences."
Fortas, The Presidency As I have Seen It, In Hughes, The
Living Presidency 335 (1973) .^^
15 There are serious weaknesses in the assumption,
popular among liberals who happen at the moment not
to be thinking about Senator McCarthy, that
public policy ought to draw a sharp distinction
between "military and diplomatic secrets" on
the one hand and all other types of official
information on the other, giving Congress free
access to the latter. In the first place, the
line is by no means easy to draw, even when the
best of faith is used * * *. More fundamentally,
however, the executive's interest in the privacy
of certain other types of information is not less
than its interest in preserving its military and
diplomatic secrets. One obvious example is the
data, derogatory or otherwise, in the security
files of individuals. Another, perhaps still
more important, is the record of deliberations
incidental to the making of policy decision.
Bishop, The Executive ' s Right of Privacy: An Unresolved
Constitutional Question, 66 Yale L. J. 477, 488 (1957) .
16 This need has been perceived also by political scientists.
Although some of President Truman's "cronies" were
poorly equipped for this service, their indiscretions
did not destroy a President's need for personal
adviser's * * *. There can be no doubt that men like
House and Hopkins perform an essential function.
Ideally, they are both intimates of the President and
experts in public affairs. But perhaps their mcst
significant contributions are made as presidential
intimates. The President needs to discuss with a
sympathetic person ideas and plans that are still in
an amorphous state and to gain some respite from the
cares cf office by talking over trivial matters that
interest him or by chatting about men of affairs,
with the confidence that his remarks will not go
beyond the room .
Carr, Bernstein, Morrison, Snyder, & McLean, American
Democracy in Theory and Practice 609-610 (1956) .
1169
' 51
All that we have said on this point was succinctly
put by a distinguished constitutional lawyer, Charles L.
Black, Jr., who has recently observed that refusal to
disclose communications of the kind involved in this
litigation is not only the President's lawful privilege,
but
It is hard for me to see how any person of common
sense could think that those consultative and
decisional processes that are the essence of the
Presidency could be carried on to any good effect,
if every participant spoke or wrote in continual
awareness that at any moment any Congressional
committee, or any prosecutor working v.'ith a grand
jury, could at will command the production of the
verbatim record of every word written or spoken.
Black, Mr. Nixon, the Tapes and Common Sense , N. Y. Times,
Aug. 3, 1973, p. 31. See also the fuller expression of
Professor Blaclc's view in Cong. Rec . E5320-E5322 (daily ed,
August 1, 1973) .
What we have said in this portion of the brief is
frequently put on the basis of separation of powers.
Yet it is probable that the point we have made goes
beyond the separation of powers arguments and rests on
a proposition even more fundamental. Even though no
separation of powers issue would be involved, we suggest
that it would be as inappropriate for one federal court
to inquire into discussions between a judge of another
federal court and his law clerk as it would be if the
inquiry were to come from a committee of Congress.
Similarly, we cannot conceive that one congressional
committee could require production of the private papers
of another congressional committee any more than a court
could require these. What is really at stake is the
ability of constitutional officers of government to
perform their duties under conditions that will make
it possible for them to function to the best of their
ability. For this goal to be achieved, the ability to
preserve the confidentiality of communications with close
advisers is absolutely essential.
34-966 O - 74 - pt. 1 - 75
1170
CONCLUSION
This litigation places the Judiciary in the
unfortunate posture of being requested to settle a
dispute between two of the coordinate branches of
government. As set forth previously, it has been
shown that this is a classic example of a political
question, which is clearly inappropriate for judicial
resolution. For this reason the case should be dis-
missed, because the subject matter is nonjusticiable.
Furthermore, the plaintiffs have asserted that the
subpoenaed material is needed to determine whether
perjury has been committed. Pursuing this objective
is more the proper role of the Executive and Judicial
branches than the Legislative, because it is between
the former two that the law enforcement function of
the Constitution is divided.
Finally, in response to the subpoenas of the Senate
Committee, the President has interposed a valid claim of
executive privilege. It is obvious that the President
must be able to seek advice freely from his advisors in
order to function satisfactorily. He m.ust know that
they can speak freely to him without fear of being sum-
moned before some tribunal and forced to detail their
conversations with him.
For all of the foregoing reasons, judgment should
be entered on behalf of the President.
Respectfully submitted,
J. FRED BUZHARDT
JAMES D. ST. CIAIR
CHARLES ALAN l-TRIGHT
ROBERT T. ANDREWS
THOMAS P. MARINIS, JR.
Of Counsel Attorneys for the President
RICHARD A. HAUSER The White House
K. GREGORY JIAYNES Washington, D.C. 20500
GEORGE P. WILLIAMS Telephone Nuin):>er: 456-1414
1171
CERTIFICATE OF SERVICE
I, James St. Clair, hereby certify that on this
17th day of January, 1974, I have served the foregoing
Amended Answer and Response to Plantiffs' Memorandum on
Remand on counsel for the plaintiffs by causing copies
thereof to be hand-delivered to the office of ^
Samuel Dash
Chief Counsel'
Senate Select Committee on
Presidential Campaign
Activities
United States Senate
Washington, D.C. 20510
James St. Clair
1172
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al..
Plaintiffs
V.
RICHARD M. NIXON, individually and as
President of the United States,
Defendant
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FILED J'JN '^ i 7974.
JAMES ?. DAVEY
CIiERX
I
Civil Action
No. 1593-73
REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS'
MEMORANDUM ON REMAND
Several things need initially be said about defendant's latest
papers. First, defendant no longer seriously contends that Pub.
Law 93-190 does not provide a valid statutory basis for jurisdic-
tion in this case (Response, p. 2). Second, defendant has
effectively dropped his claim that the Select Committee was not
authorized by the full Senate to subpena and sue the President —
a position wholly untenable after the passage of S. Res. 194.
Instead, defendant essentially focuses on the issues of justici-
ability, plaintiffs' legislative authority, and the merits of this
controversy, but his contentibns in these regards are essentially
repetitious of his prior arguments to thia Court in thla case and
lis unsuccesBful arguments to this Court and the Court of Appeals
Ln N:|,xon v. Sirica. Strangely, his contentions see^ to miss the
Import of the significant events that have occurred pince this
natter was last briefed before this Court -- most particularly, the
ourt of Appeals ' decision in Nixon v. Sirica and t^e unanimous
pass*ge of S. Res. 194. While we are hesitant to burden the
Court with additional briefing, it appears necessary to bring
this case back to proper perspective with a few brief remarks.
1173
I. This Case Is Fully Justiciable.
Defendant's major claim respecting Justiciability is that the
Court should decline to decide this case because it involves a
political question under the tests enunciated in Baker v. Carr,
369 U.S." 186 (1962) and Powell v. McCormack. 395 U.S. 486 (I969).
We have not ignored these cases, as defendant contends (pp. 10, 11)
but instead have demonstrated that, as to every aspect of the
Baker/Powell test, his position is untenable. ^ We do not
propose to repeat those arguments in detail here, but a few
additional comments are in order.
The Select Committee's decision to subpena the President was
not a "political decision" as defendant claims (p. 11). Rather, it
was a unanimous decision by a blpartisem committee that, to fulfill
its mandate under S. Res. 60, subpenas to the President were
required. Sec. 1 (a) of that Resolution, unanimously passed,
instructs the Committee "to conduct an investigation and study o'f
the extent ... to which ^.llegal. Improper, or imethical activities
were engaged in by any persons ... in the presidential election of
1972, or In any related campaign or canvass..." (emphasis added),
rhat the Committee was fulfilling its lawful responsibilities under
S. Res. 60 by subpenaing the President has been affirmed by a
unajiimous Senate In S. Res. 194.**/ The assertion that the decision
to subpena the President was a political one is a were ipse dixit,
To state it does not ma^e it so, particularly where unoontestable
Sui
/ fase Flaintitis' i^eply Memorandum in t>upport or Motion J? or
ummary Judgment, pp. 4-8. We there contend that there is no
"textually demonstrable commitment" to the President by the
Constitution of an' unreviewable executive privilege to withhold
evidence, a proposition firmly established by Nixon v. Sirica
that serves as a lethal blow to defendant's claim of non-
justlclabillty in this case. We have never conceded that the
Constitution provides the Executive with an unreviewable privilege
as defendant suggests (pp. 10, l4). We have noted the Courts'
recognition that the Executive in certain circumstances has the
right to keep materials confidential. This principle does not
pertain when there is a prima facie case of criminality agaiijst
the President and his close associates and the evidence sought
relates to that possible criminality. (See section III, infra)
**/ It is curious but significant that there is absolutely no
mention of S. Res. 194 in defendant '6 entire 52-page brief.
1174
,-N -3- -
facts prove the contrary.*/
Plaintiffs, of course, rely on Nixon v. Sirica for the
brinciple, that Courts have the power to review a claim of executive
privilege. Defendant attempts to undercut this reliance by
pointing out that this case involved a grand jury subpena (p. 11).
But surely that decision has application beyond the confines of
its immediate facts, as demonstrated by the following passage
from the Court's opinion (p. 27).
"if the claim of absolute privilege was recognized,
its mere invocation by the President or his surrogates
could deny access to all documents in all the Executive
departments to all citizens and their representatives,
including Congress, the courts as well as grand juries,
state governments, state officials and all state
subdivisions. The Freedom of Information Act _ could
become nothing more than a legislative statement of
unenforceable rights. Support for this kind of mischief
simply cannot be spun from incantation of the doctrine
of separation of powers." (emphasis added) .**/
There is no reason why this Court should pronounce, itself
infirm to male on a claim of privilege asserted against the
Congress. The Supreme Court has said that the principle that
"the public has a right to every man's evidence" is just as
applicable to legislative investigations as to judicial proceedings
United States v. Brvan. 339 U.S. 323, 331 (1950) thus
indicating that a claim for evidence should not be unreview-
able just because it is the Congress that asserts it. ***/
7 The President now says his decision to dishonor the subpenas
was political. We would have thought, upon reading his letters of
refusal attached to our Complaint, that his noncompliance was based
on supposed legal principles. In any event, the President cannot
remove this case from the Court's jurisdiction by the mere assertion
that his decision to reject the subpenas was a political one.
/ Judge Wilkey in his dissent (p. 20) observed that "the
Congressional demand for Executive papers (tapes) is 'logically
indistinguishable^ from the demand on the Executive by Judicial
subpoena, i_.e_j_, both test the Constitutional separation of povfers
basis of Executive privilege". And he recognized (d. 71,
fn 176) that the "impact of the Courts' decision" would "extend"
to the present suit.
***/ Judge MacKinnon, concurring in part and dissenting in part in
;['iixon V. Sirica, has recognized (p. 15) that a "Congressional
subpoena . . . carries at least as much weight as a judicial
subpoena".
1175
The courts have recognis;ed their pov;er to rule on claims of
executive privilege in suits for evidence brought by private partie
See United States v. Reynolds 345 U.S. 1 (1953) and Cormittee for
Nuclear Responsibility. Inc. v. Seaborg, l49 U.S. App. D.C. 385,
463 F.2d 788, (1971), which were relied on by the Court in Nixon
V. Sirica.*/ One would suppose that the Congress, whose right as
the representative of the people to information must be greater
than that of a private party, would have at least have equal status
before the Court. Moreover, the Courts have found authority to
rule on claims of privilege asserted by the legislature against the
executive, a task considerably more troublesome than the one here
because of the specific provisions of the Speech and Debate Clause.
See Gravel v. United States. 4o8 U.S. 606, 627 (1972) ;—/ United
States v. Brewster, 4o8 U.S. 501 (1972). It would thus be both
unreasonable and unjust for the Court to decline to rule where,
as here, the legislature seeks material from the executive .-«""/
The Courts are thus accustomed to ruling on claims of privilege
and, by the application of established legal standards — i.e.,
the balancing test enunciated in Nixon v. Sirica — this Court can
likewise do so in the present case.****/
V~S.ee also, Soucie v. David, l44 U.S. App. D.C. l44, l49, n. 11,
P48 F.2d 1067, 1072, n. 13 (1971).
*J_/ Defendant at p. 6 cites Justice Douglas' dissent in Gravel
for the one proposition that the Courts should not referee disputes
between the two other branches, but his views in this respect were
rejected by the majority of the Court that felt the case should be
decided.
*_^y We know of no case holding that the Courts must relinquish
their traditional role as the arbiter of claims of privilege where
there is an assertion of executive privilege against the Congress.
****/ The application of the balancing test in the present case
is simplified because the Court now presumably has access to much
of the material sought by the two subpenas here involved since
this material has been turned over to the grand jury in response
to its subpena or voluntarily. (The statements in the Response
at pp. 10, 44 that all evidence herein aD ught has been turned
over voluntarily to the grand jury are, of course, counterfactual.h
It is significant that, in regards to the "Watergate" material
in four conversations we have subpenaed, the President raised no
particularized claim" of privilege in the Special Prosecutor's
case after the Court of Appeals entered its order rejecting the
President's broad assertion of an unreviewable executive privilege
Considering the Committee's need for this material, elsewhere
detailed, the application of the balancing test to this material
will thus be a simple exercise.
1176
Defendant suggests (p. 15) that this case is not Justiciable
because it involves a clash of power between two branches of
government. But such a claim is decimated by reference to the
Court of Appeals' decision in Nixon v. Sirica (p. 26) where the
Court said that the fact that there Is a conflict between
coordinate branches of government
"... does not make the task of resolving the conflicting
claims any less judicial in nature. Throughout our
history, there have frequently been conflicts between
independent organs of the federal government, as well
as between the state and federal governments. When
such conflicts arise in justiciable cases, our
constitutional system provides a means for resolving
them- -one Supreme Court. To leave the proper scope
and application of Executive privilege to the
President's sole discretiona would represent a
mixing, rather than a separation, of Executive and
Judicial functions. A breach in the separation of
powers must be explicitly authorized by the Consti-
tution, or be shown necessary to the harmonious
operation of 'workable government." Neither condition
is met here . "
We have previously cited numerous cases where the Courts have
resolved controversies between coordinate branches of government.
(See, e.g.. Plaintiffs' Memoi'andum On Komand, p. 1^+). We add to
that list this Court's recent decision in Nader v. Bork (C.A.
No. 1954-73, November 11, 1973).
This case, therefore, is justiciable. It is, in fact, just
the type of controversy that should be resolved by the ameliorat-
ing "neutral authority" of the judiciary (United States v.
Brewster, supra, at 523) under its "responsibility. .. to act as the
ultimate interpretor of the Constitution." (Powell v. McCormack,
supra, at 5^9). Although this case is unique, it does not ask the
Court to perform tasks foreign to it for wliich it has no standards,
for the Courts in other contexts are accustomed to ruling on
claims of executive privilege and deciding the validity of Con-
gressional demands for evidence (e.g., in contempt cases).
What defendant has essentially done in his brief is to replay
his old arguments respecting an unreviewable executive privilege
that were unsuccessful in Nixon v. Sirica. They should be
likewise unavailing here. J^/
*y The Court, of course, is only being asked to rule on the valid-
ity of the two subpenas issued on July 23, 1973. 'fhe most recent
subponas served by the Committee are not in issue here and may
never be the subject of litigation. If litigation does result, it
will involve only a limited number of the items sought by those
subpenas. We have previously dealt with defendant's claim that the
second subpena served on him on July 23, 1973} was overbi-oad nnd
will not repeat our refutation of that assertion liere. Soe
uppli/mento ry Memorandum p. 13, fn. ^/.
1177
-6-
II. Plaintiffs Have Not Exceeded Their Legislative Authority
Defendant's assertions that plaintiffs have gone beyond
constitutional restrictions on their l^egislative authority are
not totally clear. In his Amended Answer, par. 3j he "denies
that plaintiffs are entitled to investigate criminal conduct."
But in his Response (p. l8), he seems to assert that it is
permissible "to identify" illegal conduct, but improper to
explore its extent. Either contention is erroneous.
It is conclusively established that Congress may investigate
criminal conduct. See McGrain v. Daugherty, 273 ^.S. 135 (1927)*/
Sinclair v. United States, 279 U.S. 263 (1929) and the other
cases cited at p. 6, our Supplementary Memorandum. We Know of
no case holding that a Congressional investigation into criminal
conduct must cease once the conduct has been merely "identified,"
and we are confident there is none because such a ruling v;ould
debilitate Congressional investigations. It is significant
that S. Res. 60 instructs the Committee "to conduct an investi-
gation and study of the extent. . . to which illegal, improper,
or unethical activities" occurred in the 1972 presidential
campaign gnd election, (emphasis added)
In fcaiDwing this mandate, the Committee fulfills two vital
legislative purposes. The first is the law-making function.
Although the Committee as a whole has not yet considered or
expressed itself on legislative recommendations, there are
certain possible recommendations that may turn on the deter-
mination whether the President or his closest associates were
involved in criminal conduct in the 1972 campaign. In such
circumstances, it is possible that the Committee might consider
a recommendation to limit presidential tenure to one terra with
restrictions on the President's participation in the campaign to
choose his successor, or might proffer a drastic campaign
finance bill severely curtailing the contribution of private
monies. It is possible that the Committee might consider sug-
gesting the establishment of a permanent special prosecutor,
^ In McGrain this court sustained a Congressional Inve tigation
upon the" determination that the administration of the Justice
Department v;as a proper subject for legislation. It did not
consider it necessary to engage in a minute examination of the
evidence sought by the subpena in question, v/hich had boon
issued to the Attornoy General's brother, to ascertain v;heth,>r
obtaining this evidence was critical for the enactment of
legislation.
1178
-7-
iramune frum presidential removal, to prosecute election-related
offenses. This special prosecutor might, by legislation, be
given automatic access to all campaign and executive materials
relating tb the campaign. The General Accounting Office might
also be provided similar access to such materials for auditing
purposes. Or the Committee might undertake a review of certain
federal criminal laws such as those concerning obstruction of
Justice and misprison of felony to ascertain whether they are
adequate to deal with campaign conduct by executive of ficials .J^/
We could expand on these examples but perceive no need to do
so. For the point is that, in the words of McGrain (p. 177),
presidential elections are "/~p_7lalnly /~a subject_7 on which
legislation could be had and would be materially aided by the
information which the investigation was calculated to elicit,"
i.e., information respecting the possible participation in
illegal acts by the President and his closest associates. **/
The second legislative purpose the Committee is seeking to
fulfill is its informing function. The Supreme Court has called
the informing function "indispensable," and observed that it
"should be preferred even to" Congress' law-making function.
See Watkins v. United States, 35^+ U.S. 178, 200, n. 33 (1957);
United States v. Rumely, 3^5 U.S. ^11, 43 (1953). ***/ Defendant's
»7 It is, of course, obvious that the other two major bodies
investigating "Watergate "--the grand jury and the House
Judiciary Committee — have no similar law-making mission.
»*/ This case is thus clearly distinguishable from Kilboum v.
Thompson, 103 U.S. l68 (iBBo) where the Court, for lack of proper
legislative purpose, condemned an investigation into a private
real estate pool, because here we have a subject under study
concerning which legislation can and may result. The President,
in fact, concedes (p. 2*1) that presidential campaigns are valid
subjects for legislation.
Defendant makes much of our assertion that we desire to
determine if perjury was committed before the Committee, suggest-
ing that this is evidence that we are conducting a criminal trial
See Response, pp. 20, 52. Two points need be made to this. First
a legislative committee not concerned about the integrity of its
own procedures would, at best, be foolish. Second, we hardly lay
much stress on this point, dealing with it in a footnote in
Plaintiffs' Memorandum On Remand, p. 22, and defendant's heavy
focus on it demonstrates the paucity of his argument that the
Committee proceeds without valid legislative purpose.
*»»/ The informing function is most valuable when used to reveal
governmental corruption. In fact, Watkins indicates that Congress
can hold hearings to reveal government wrongdoing even if it has
no immediate legislative intendment--which the Committee, of
course, docs have. As the Court there said: "The public is, of
course, entitled to be informed concerning the workings of its
government." In ruling that "private" affairs could not be
exposed "for the sake of exposure," the Court specifically
indicated that it was, in that opinion, "not concerned with the
power of the Congress to Inquire into and publicise comaption,
maladministration or inefficiency in . . . Government." See
3l3'l U.S. at 200. (emph sis addc
S5
1179
-8-
acknowledgement of the informing function is grudging and he
claims that the Committee "has r\ot been unduly frustrated In
carrying out" this responsibility (p. 25). But It is just
because defendant has not voluntarily provided the Committee
with the best evidence available in order for it to fulfill its
legislative missions that the Committee has been forced to subpena
£ind sue the President .V
Perhaps the most startling aspect of defendant's brief is
that he totally ignores S. Res. 194. This resolution specifically
states that it is the sense of the Senate that the Committee, in
seeking the materials here Involved, is acting with valid legis-
lative purposes. Arguably, the full Congress is of that view
else it would not have passed a statute giving jurisdiction for
a suit to obtain this Information. These Congressional deter-
minations are entitled to great weight. See Plaintiffs' Memo-
randvim on Remand, pp. 6-11. In light of these enactments and
the discussion above regarding the Committee's law-making and
informing functions, it is nigh Impossible for the President to
surmount the well-recognized presumption that a legislative
committee is acting with valid legislative purposes. **/ The
Court should conclude that the Committee acts within its consti-
tutional legislative authority.
^ It Is possible that evidence submitted to the Special Prose-
cutor will never become public. The Special Prosecutor has
recently speculated that all Watergate-related cases may be
resolved by guilty pleas, a result that might seal material
obtained by him from public scrutiny. See Washington Post p. A6,
Col. 3-4, January 19, 1974.
**/ See, e.g., McGraln v. Daugherty, supra, at 178; Watklns v.
United States, supra, at 200; Barenblatt v. United States, 360
U.S. 109, 133 (T959T-
1180
-9-
III. The Evidence Sought By The Cominlttee May Not Be Suppressed
Defendant's defense on the merits is written almost as if
1
Nixon V. Sirica had never been decided. After contending
(pp. 26-7) that our reliance on that case is misplaced because
it concerned a grand jury subpena, the case is not significantly
dealt with again. The balancing test promulgated in that case
for determining vjhether a claim of executive privilege will be
allowed is not even mentioned. Instead, defendant treats the
Court to a generalized, largely irrelevant, and partially inac-
curate discussion of the need for an executive privilege and the
supposed history of its application, j*/
Nixon v. Sirica establishes the balancing test as the
standard for resolution of all claims of executive privilege
regardless against whom they -are asserted. (See p. 28). We
perceive no intimation in the language of that opinion that a
different standard is applicable where a grand jury subpena is
not involved; to the contrary, the opinion relies heavily on
non-grand jury cases such as Committee For Nuclear Responsibility
V. Seaborg, supra. It is, however, not surprising that defendant
attempts to avoid the balancing test for under it his claim of
privilege is ill-fated.
Compelling factors weigh for disclosure of the materials
here sought. The Committee has urgent need for the materials
^7 This discussion is largely Irrelevant because there is no real
aispute here that executive confidentiality, in many circumstances
should be protected. It is inaccurate in several respects. As
the Historical Appendix to our initial Memorandum shows. Presi-
dents have often given Congress information requested by it,
particularly where executive wrongdoing was under investigation.
While they have also often refused to deliver Information, there
is no uniform usage or practice that would tail to establish a
Constitutional principle of absolute executive privilege. (See
Response, pp. 34-5). Moreover, it is simply not true that our
Historical Appendix relies solely on Prof. Berger as defendant
asserts (p. 29), as a cursory review of that document will
establish. It is also not correct, as the quote at p. 4 suggests,
that no heads of executive departments have ever responded to
Congressional subpenas. See, e.g., our Supplementary Memorandum,
p. 10, fn. ***/.
1181
-10-
subpenaed to fiilfill its law-making and informing functions. ^
A unanimous Senate has stated in S. Res. 194 that the material
subpenaed is "vital" to enable the Committee to fulfilllits
valid legislative obligations **/ and it is arguable that the
full Congress, by passage of P.L, 93-190 which aids the Committee
in achieving the materials subpenaed, is also of that view. The •
President, himself, has acknowledged the importance of the material
subpenaed by permitting voluminous testimony on the same subject
matters.
There are, however, no significant factors that weigh in favor
3f suppression. While there is a general need to preserve presiden-
tial confidentiality as to official duties, no privilege is allowabLe
to shield possible criminal conduct by the President.***/ The same
Ls true respecting the possible criminality of his associates.
This is not a case where evidence is sought "to investigate
imagined ' executive wronglolng'" See Response p. hh (emphasis
added). As we have heretofore asserted, and defendant's counsel
Judge flacklnnon, in his opinioh in Nixon v. Sirica, observed
15):
"/r^J7 congressional subpoena issued for the pur-
pose of obtaining facts upon which to legislate
carries at least as much weight as a judicial
subpoena issued for the purpose of obtaining
evidence of criminal offenses. The only dif-
ferences between these two types of subpoenas
occur in the subject matter to which the subpoena
power may be directed. Congressional subpoenas
seek information in aid of the power to legislate
for the entire nation while judicial subpoenas
seek information in aid of the power to adjudicate
controversies betv/een individual litigants in a
single civil or criminal case. A Grand jury
subpoena seeks facts to determine whether there
is probable cause that a criminal law has been
violated by a few people in a particular instance.
A congressional subpoena seeks faets which become
the basis for legislation that directly affects
over 200 million people. Thus, both congressional
and judicial subpoenas serve vital interests, and
one interest is no more vital than the other."
**/ This official declaration by the unanimous Senate outweighs
the random remarks by Senators Inouye and Gurney, both of v/hom
introduced the Resolution (see Response p. 19). Senator Inouye 's
statement v;as that the Committee could write an "adequate" report
if the materials subpenaed were not produced. The Committee,
however, desires to present a report of exceptionally high
standard containing solid legislative recommendations . TEe nation
deserves no less in the critical area of election reform.
**V Defendant concedes this point of law. See Plaintiffs'
Memorandum On Remand, p. 25.
1182
-11-
not denied, the evidence before the Committee presents a prima
facie case that the President himself has been Involved In
crlmlnaJ. conduct. See Plaintiffs' Reply Memorandum In Support
Of Motion For Summary Judgment, p. 19. There is also, for
example, a prima facie case that Haldeman, Ehrllchmaji and
Mitchell, three of the President's closest advisors, committed
crimes. And John Dean, whose conversations with the President
are the subject of certain tape recordings here sought, has
already pleaded guilty to a conspiracy to obstruct Justice. In
such circumstances, executive privilege cannot be invoked to
suppress information bearing on possible criminality. ^
Moreover, by permitting testimony and the revelation of
evidence respecting the subject matters of certain materials
\mder subpena, the President has severely diminished any sup-
posed public Interest in keeping this material confidential.
See Nixon v. Sirica, pp. 31-2. As the Court of Appeals said
respecting the tapes under subpena: "The simple fact is that the
conversations are no longer confidential." (emphasis added) This
statement is all the more trenchant today regarding the materials r
turned over to the grand Jury. **/ It is also significant that,
as to some such materials — including the "Watergate" portions of
four conversations subpenaed by this Commlttee--the defendant
raised no "particularized claim" of privilege after his broad
5^ Because of the nature of the subject matter under investi-
gation, it is unconvincing for defendant to contend that
"/~t_/"is caae concerns the ability of the President to enjoy
confidentiality in carrying out his official duties" (p. 4o) .
It is also difficult to accept the statement (p. 51) that
"/~w_7hat is really at stake is the ability of constitutional
officers of government to perform their duties under conditions
that will make it possible for them to function to the best
of their ability." A decision for plaintiffs in this case would
in no way hinder the future legitimate exercise of official
duties by executive personnel.
**/ Defendant, in his brief to the Court of Appeals in Nixon v.
Sirica, recognized at p. 63 that when these materials were
released to the grand jury "all confidentiality would be ended,"
ow
1183
claim of -^Dsolute, unreviewable prlvxlege was rejected .j|/
Finally, there Is no public Interest In allowing the
President to toy with the Committee and the public by revealing
what information he desires, vhlle he wiliiholds the best evidence.
His claim of cooperation at pp. 25-6 should not obscure the fact
that he intends to leave the Committee plagued by the contradic-
tions that remain after the testimony before it by his present
and former aides . This action is contrary to our fxindamental
notions of fairness and, if allowed to succeed, can only result
in a distorted version of the facts.
Conclusion
Plaintiffs' motion for summary judgment should be granted.
Respectrully submittt
Sherman Cohn
Eugene Gressman
Jerome A. Barron
Washington, D,C.
Of Counsel
Arthur S. 14Lller
Chief Consultant to
the Select Committee
Of Counsel
nuel Dash S
Lef Counsel I
Fred D. Thompson
l>Iinority Counsel
Rufus Edmisten
Deputy Counsel
Jam6s Hamilton
Assistant Chief Coxmsel
Richard Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
Donald S. Burris
Assistant Counsel
United States Senate
Washington, D.C. 20510
Telephone Number 225-0531
Attorneys for Plaintiffs
J^ Defendant does not deal in hi5 brief with our arguments
respecting his diminished interest in maintaining the confi-
dentiality of the materials \inder subpena except in a footnote
on p. 30 where he employs his shopv;orn arguments based on United
States V. Reynolds, 3^5 U.S. 1 (1953) and the views of Prof,
Alexander Bickel. His position in this regard, however, has been
thoroughly discredited by the Court of Appeals decision in Kixon
V. Sirica.
1184
CERTIFICATE OF SERVICE
I, James Hamilton, do hereby certify that on January 21,
1974, I served copies of the attached Reply To Defendant's
Response To Plaintiffs' Memorandum On Remand upon defendant
President by having said copies hand-delivered to the offices
of his counsel in the Executive Office Building, Pennsylvania
Avenue, Washington, D.C.
DV{:^w^Ju-(i
James Hamilton
Assistant Chief Counsel
United States Senate
Washington, D.C. 20510
Attorney for Plaintiffs
1185
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON
PRESIDENTIAL CAMPAIGN ACTIVITIES,
SUING IN ITS OWN NAME AND IN THE
NAME OF THE UNITED STATES, ET AL. ,
Plaintiffs,
V.
RICHARD M. NIXON, INDIVIDUALLY AND
AS PRESIDENT OF THE UNITED STATES,
Defendant.
Civil Action No, 1593-73
ORDER
On consideration of the President's objections to
the attached subpoena duces tecum issued by the Senate Select
Committee on July 23, 1973, the Court has concluded that the
demand therein for all conceivable types of documents, recordings
and photographs relating directly or indirectly to the activities,
participation, responsibilities or involvement of 25 named
individuals in any allegedly criminal acts relating to the 1972
Presidential campaign is too vague and conclusory to permit a
meaningful response, overlooks the restraints of specificity
and reasonableness which derive from the Fourth Amendment and
is wholly inappropriate given the stringent requirements
applicable where a claim of executive privilege has been raised.
Nixon V. Sirica. Nos. 73-1962, 73-1967, 73-1989, at 28-33
(D.C. Cir. Oct. 12, 1973). See also McPhaul v. United States.
364 U.S. 372, 382-83 (1960); Oklahoma Press Publishing Co. v.
Walling. 327 U.S. 186, 208-09 (1946); See v. City of Seattle.
387 U.S. 541, 544 (1967); In re Grand Jury Subpoena Duces Tecum.
203 F. Supp. 575, 577-79 (S.D.N.Y. 1961)., and cases cited therein.
The subpoena is accordingly quashed and the Committee's pray r
for its enforcement denied.
SO ORDERED.
Januarv 25. 1974.
traiTED STATES DISTl CT JUDGE
34-9G6 O - 74 - pt. 1 - 76
1186
: . . • Exhibit D
■■: 159.:}-73
• " UNITED STATES OF AMERICA
CONGRESS OF THE UNITED S TA T ES.Elli.CTE . D.
SUBPOENA DUCES TECUM AUG 91973
UAMES t DAVEY. Clerk
To: President Richard M. Nixon, The White House, Washington, D. C.
P ur suant 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'clocl«'a. m. , at their
connmittee room, 318, Old Senate Office Building, the following:
Any and all records, or copies of records including but not
f
limited to, documents, logs, records, memoranda, correspondence,
news sumimaries, datebooks, notebooks, photograph"^, recordings or
other materials relating directly or indirectly to the attached list of
indivifluals 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 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 immunity and payments made to the defendants
and/or their attorneys relating to the above stated matters.
1187
V 1 ; ;<:"-'
Hereof fail not, as you will answer your default under the
pains and penalties in such cases rnade and provided,
. TO A ii-'ia 6 I . /ErJ/^ /s /^ aA / i-i^A.H hll ^yyjirt ^
to B&x\& and return.
Given under my hand, by order of the
. conamittee, this Z3rd day of July, in
the year of our Lord one thousand nine
'■•.«,
hundred and seventy-three
Chairman, Senate Select ConrAnLttee cr
Presidential Campaign Activites,
^
1188
Buchanan, Patrick J;-
Bvitterfield, Alexander P;
Cainpbell, jolin
Caulfiold, Jack
Chapin, Dwight * •
Colson, Charles
Dean, John , ,
Ehrlichman, John
Fielding, Fred
Haldeman, H,- Robert
Higby,- Larry
Howard, Richard
Hunt, E.'' Howard
Kehrli, Bruce
Xrogh-, Egil • •
LaRue, Frederick
Liddy, G^^ Gordon
Magruder, Jeb. Stuart
1189
iMitchell, John
Moore, Richard A;
Shuraway, DeVan
Strachan, Gordon
Timmons, William
Young, David-
Ziogler, Ron
1190
^ "ly^^/ tvM.vy. iM-l/*^'^^/
-7, V. . . -t I
: . ' ''■%■'.
--' ^^ : — __^
1191
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON
PRESIDENTIAL CAMPAIGN ACTIVITIES,
SUING IN ITS 0\™ NAME AND IN THE
NAME OF THE UNITED STATES, ET AL.
Plaintiffs,
V.
RICHARD M. NIXON, INDIVIDUALLY
AND AS PRESIDENT OF THE UNITED STATES,
Defendant.
Civil Action No. 1593-73
ORDER
The Court, upon consideration of the briefs, pleadings
and other papers filed with regard to the attached subpoena duces
tecum issued by the Senate Select Committee on Presidential
Campaign Activities for the production of five specifically
designated tape recordings of presidential conversations, finds
that the President's claim of executive privilege, set forth
generally in three letters to the Chairman of the Select Committee
dated July 6, 23 and 25, 1973, is too general and not sufficiently
contemporaneous to enable the Court to determine the effect of
that claim under the doctrine of Nixon v. Sirica. Nos. 73-1962,
73-1967, 73-1989, at 28-33 (D.C. Cir. Oct. 12, 1973), decided
subsequent to the letters and initial proceedings in this case.
Accordingly, the Court respectfully requests that the President
submit, through counsel, on or before February 6, 1974, a
particularized statement addressed to specific portions of the
subpoenaed tape recordings indicating whether he still wishes
to invoke executive privilege as to these tapes and, wi*" regard
to those portions as to which the privilege is still asserted,
if any, the factual ground or grouids for his determination that
1192
•2-
disclosure to the Select Committee would not be in the public
interest. This statement must be signed by the President,
for only he can invoke the privilege at issue, United States
V. Burr. 25 Fed. Cas. 187 (Case No. 14,694), 192 (1807), and
will be made part of the public record in this case. If the
President so desires, the Court will also review, in camera
and ex parte, transcripts of any tape recordings referred to
in the President's statement and will take them into
consideration in determining the sufficiency of the privilege
claimed, provided that such transcripts are submitted with
the requested statement.
SO ORDERED.
January 25, 1974.
v^^^^^V^^
ITED STATES DISTRICT JUDGE
1193
Exhib-:t C
UNITED STATES OF AMERICA 1 ~nO_7Q
CONGRESS OF THE UNITED STATES
SUBPOENA DUCES TECUM —--»-<■
AUG 91973
liAMES F. DAVEY, ClerK
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
i'
connmittee room, 318, Old Senate Office Building, the following:
Any and all original electronic tapes and recorded telephone
messages of the belovsr listed conversations or oral communications,
telephonic or personal, between President Nixoii and John Wesley
Dean ,111, 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 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 imtriunity
and paynrients made to the defendants and/or their attorneys relating to the
above incidents at the dates and times of the attached list of conversations:
..;:■■
1194
.^•, -*. -• ,-v
September 15, 1972 (personal) 5:27 p. rn. to 6:17 p.m.
February 28, 1973 (personal) 9:12 a.m. to 10:23 a.m.
MarchlS, 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.
•■r ■
Hereof fail not, as you will answer your default under the
pains and penalties In such cases smada and provided.
To I?; rflx ^ L. Urll-y^ ;-.+<:- /xJ^f/^/l V 1^ / r^VA/Ai
to serve and return, ':■:..
Given under my hand, by order of the
.committee, this 23rd day of July, in the
year of o\ir Lord one thousand nine hundred
and s eventy -three ;•
^3/7v-.^>^ </i!.lI.
Chairman, Senate Select Cominittee or.
Presidential Campaign Activitss
1195
'::^^fzif^c^
'' •'7A;r/>v
//<&C^ /^X^ Vc^n^ /^C^^^ ^^. (^'n^^:,,h-^
1196
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON
PRESIDENTIAL CAMPAIGN ACTIVITIES,
SUING IN ITS OWN NAME AND IN THE
NAME OF THE UNITED STATES, ET AL. ,
Plaintiffs,
V.
RICHARD M. NIXON, INDIVIDUALLY AND
AS PRESIDENT OF THE UNITED STATES,
Defendant.
Civil Action No. 1593-73
ORDER
The Court respectfully requests the Watergate
Special Prosecutor to file with the Court and serve upon
all parties, by February 6, 1974, a statement concerning the
effect, if any, that compliance with the attached subpoena
issued by the Senate Select Committee on Presidential
Campaign Activities would, in his opinion, be likely to
have upon pending criminal cases or imminent indictments
under his supervision.
SO ORDERED.
UNITED STATES DISTRICT JUDGE
January 25, 1974.
1197
Exhibit C
UNITED STATES OF Alv^ERICA
1593-73
CONGRESS OF THE UNITED STATES
I
SUBPOENA DUCES TECUM
AUG 91973
IIAMES F. DAVEYj ClerK
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 conumunications,
telephonic or personal, between President Nixon and John Wesley
Dean JII, 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 Comjnittee offices on or about
May 27, 1972, and on or about Jvme 17, 1972, and any efforts made to
conceal information or to grant executive clemency, pardons or immunity
and paynaente made to the defendants and/ or their al-torneys relating to the
above incidents at the dates and times of the attached list of conversations:
1198
• »
/
September 15, 1972 (personal) 5:27 p.rn. to 6:17 p.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. ir».
Hereof fail not, as you will answer your default under the
pains and penalties in such cases naade and provided.
To Ptr^i,. <; L. ^r/r^i<-f-^ /\J.'f/^ ^ V 1^ / r^^yA/At
to serve and return, fVi.
V '
. Given under my hand, by order of the
.committee, this 23rd day of July, in the
year of our Lord one thousand nine hundred
• . ' • • ajad seventy -three;-
Chairman, Senate Select Comxnittee on
Presidential Cam.paign Activites
1199
/xf</ /
:,r...v..-..;)
., .■•':.^
■ ■ ■-- ■■ ■ ■■ .^/ •'■•■•■ -7 /-!•//>-,-
^^
^-/
v'^h^-^
vp
'^-^ry
V'!
-•*K •* • »* *•' ■ . .,*
• t "^ ',•!•••*> , . ■-■ I . •» m ■•-1 " ./ J ^ ■ (» ■ - 1 ». ■» ir V
1200
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SENATE SELECT COMMITTEE ON
PRESIDENTIAL CAMPAIGN
ACTIVITIES, SUING IN ITS
OWN NAME AND IN THE NAME OF
THE UNITED STATES , et al . ,
Plaintiffs,
V.
RICHARD M. NIXON, INDIVIDU-
ALLY AND AS PRESIDENT OF THE
UNITED STATES,
Defendant.
Civil Action No. 1593-73
MEMORANDUM OF THE SPECIAL PROSECUTOR
The Special Prosecutor submits this memorandum pursuant
to the order of the Court on January 25, 1974, requesting
that the Special Prosecutor file with the Court and serve
upon the parties "a statement concerning the effect, if any,
that compliance with the [subpoena of the Senate Select Com-
mittee on Presidential Campaign Activities for five record-
ings of Presidential conversations] would, in his opinion,
be likely to have upon pending criminal cases or imminent
indictments under his supervision."
BACKGROUND
The grand jury empanelled in the District of Columbia
on June 5, 1972, has been investigating the so-called Water-
gate break-in and cover-up for more than nineteen months.
This ir.vestigation already has resulted in pleas of guilty
by three persons — John W. Dean III, Frederick LaRue and
Jeb Stuart Magruder — to one-count informations charging a
1201
conspiracy to obstruct justice and defraud the United States
in violation of 18 U.S.C. 371. A fourth person — Herbert
Porter •— has pleaded guilty to making false statements to
the Federal Bureau of Investigation in connection with the
Watergate investigation, in violation of 18 U.S.C. 1001. And
a fifth — Dwight Chapin — is now awaiting trial in this
Court on four counts of making false statements to the June
1972 Grand Jury, in violation of 18 U.S.C. 1623.
The Special Prosecutor expects that the June 1972 Grand
Jury will complete its investigation and return any indict-
ments prior to March 1974. Based upon the public testimony
of those individuals who have pleaded guilty, as well as
other testimony before the Senate Select Committee on Presi-
dential Ceimpaign Activities, it is only reasonaiale to assume,
as the Court implicitly recognizes in its Order, that indict-
1/
ments in fact will be forthcoming.
In this regard, we should advise the Court that four of
the recordings subject to the Senate Select Committee sub-
poena have been played before the grand jury. The grand jury
received these recordings pursuant to its own subpoena duces
tecum enforced by Chief Judge Sirica in an order upheld by
the Court of Appeals. Nixon v. Sirica, No. 73-1962 (D.C.
Cir. October 12, 1973). These recordings will be important
1/ The Special Prosecutor, who is charged with investi-
gating "allegations involving the President, members of the
White House staff, or Presidential appointees" (Order of the
Attorney General No. 551-73; November 2, 1973), also has been
presenting evidence to the grand juries empanelled on August
13, 1973, and January 7, 1974. In addition to the indictment
of Egil Krogh, Jr., for false statements (subsequently dis-
missed when Mr. Krogh pleaded guilty to a civil rights con-
spiracy) and the indictment of Dwight Chapin mentioned above,
it is expected that these grand juries also will return in-
dictments in the near future.
- 2 -
34-96G O - 74 - pt. 1 - 77
1202
and material evidence at any future trials resulting from
the grand jury's investigations, a factor that must be taken
into account in assessing the effect of compliance with the
Senate Select Committee subpoena.
STATEMENT
The Supreme Court has described the right to a fair
trial as "the most fundamental of all freedoms" vrfiich "must
be maintained at all costs." Estes v. Texas , 381 U.S. 532,
540 (1965). The Special Prosecutor, consistent with his
obligation to ensure the integrity of the criminal process
and afford all defendemts a fair trial, repeatedly has sought
to prevent or minimize improper, unwarranted or inf leunmatory
2/
pre-trial publicity. It is thus incumbent on the Special
Prosecutor to inform the Court that, in his judgment, com-
pliance with the Senate Select Committee subpoena and subse-
quent airing of the recordings during hearings of the Commit-
tee, would increase the risk that those indicted could contend
2/ For example, when the Senate Select Committee sought
to immunize witnesses Dean and Magruder to obtain their testi-
mony, the Special Prosecutor asked the Court to impose con-
ditions on the grant of immunity, suggesting that the Court
might recjuire the exclusion of the broadcast media when the
witnesses testified or might require that the witnesses testify
in executive session. See "Memorandum on Behalf of the Special
Prosecutor on Application for Orders Conferring Immunity",
Application of United States Senate Select Committee on Presi-
dential Campaign Activities, 361 F. Supp. 1270 (D.D.C. 1973).
Similarly, the Special Prosecutor opposed the request of the
Democratic National Committee for access to grand jury mate-
rials and investigatory files in connection with its civil
action arising out of the Watergate break-in, and suggested
the sealing of any depositions taken of key Watergate figures.
See "Response of the United States to the Motion of Plaintiffs
for the Production and Inspection of Grand Jury Minutes and for
the Production and Inspection of Docviments and for Leave to
Depose Persons in Prison", Democratic National Committee v.
McCord, Civ. No. 1233-72 (D.D.C.) .
In addition, the Special Prosecutor has asked that the
Senate Select Committee defer filing any fact-finding report
until after the pertinent indictments and trials.
- 3 -
I
1203
with more force than presently available that widespread pre-
trial publicity prevents the Government from empanelling an
unbiased jury for the trial of the offenses charged, particu-
larly if compliance comes while the defendants are actually
3/
under indictment. See, e.g.., Delaney v. United States, 199
F.2d 107 (1st Cir. 1952).
But the existence of pre-trial publicity, even wide-
spread publicity, does not support, ipso facto, a claim of
prejudicial publicity or require the trial court to take
remedial action such as granting a continuance or change of
venue. The courts "are not concerned with the fact of pub-
licity but with the assessment of its nature." Silverthorne
v. United States. 400 F.2d 627, 631 (9th Cir. 1968), cert,
denied, 400 U.S. 1022 (1971). At this time it is impossible
to assess the precise impact of such publicity on forthcoming
trials, but the following factors should be considered:
First, the degree of publicity generated if there is
compliance with the subpoena will depend on how the Senate
Select Committee uses the recordings. If the Court holds
that the Senate Select Committee subpoena is valid and en-
forceable, it might be appropriate for the Court to consider
imposing reasonable conditions on the use of the recordings
or securing voluntary assurance that such restraint will be
observed. The Supreme Court has directed trial courts to
take all necessary action to "protect their processes from
prejudicial outside interferences" which pre-trial publicity
3/ As indicated above, the Special Prosecutor expects
that rndictments will be returned during February. Even if
this Court enforces the Senate Select Committee's subpoena,
it C2U1 be expected that the Court's order will be stayed
pending appeals, perhaps through the Supreme Court. Thus it
appears unrealistic to expect a final order, and compliance
therewith, prior to the return of indictments.
- 4 -
1204
may inject into criminal proceedings. Sheppard v. Maxwell,
384 U.S. 333, 363 (1966). Since the Senate Select Committee
has invoked this Court's jurisdiction to enforce its subpoena,
the Court may have discretion — subject only to limitations
of the separation of powers — to protect fundamental consti-
tutional interests. Cf. Krippendorf v. Hyde, 110 U.S. 276, -/
283 (1884) . On the separation of powers issue, see generally
Doe V. McMillan, 93 S. Ct. 2018 (1973); Powell v. McCormack, ^
395 U.S. 486 (1969). But cf. Application of United States
Senate Select Committee on Presidential Campaign Activities,
supra .
Second, any publicity stemming from compliance with the
subpoenas would add only marginally to previous publicity.
In addition, the publicity, as all prior publicity, will be
largely factual. It must be remembered, the issue presented
to the courts is not whether a prospective juror is ignorant
of the allegations surrounding a prosecution, or even whether
he may have some impression about them, but whether "the
juror can lay aside his impression or opinion and render a
verdict based on the evidence presented in court." Irvin v.
Dowd, 366 U.S. 717, 723 (1961). Compare Sheppard v. Maxwell,
supra ; Rideau v. Louisiana, 373 U.S. 723 (1963).
Third, the material being sought by the Senate Select
Committee is of a unique kind. The publicity that already
has been generated about Watergate has involved frequently
conflicting versions of what was said at particular meetings
in the White House. Naturally, that dispute has been of
considerable public interest and concern and all of the
participants have presented publicly their versions of what
transpired, either in sworn testimony or in press releases
or news conferences. As the Court of Appeals has held with
- 5 -
1205
respect to the subpoenaed tapes, however, the tapes constitute
"the best evidence of the conversations available." Nixon v.
Sirica, supra (slip op. at 32) . See also United States v.
White, 401 U.S. 745, 753 (1971).
We are confident that notwithstanding prior publicity,
if jurors are selected with the care required by the decisions
in this Circuit, all defendants will receive a fair and prompt
trial. Against this background, the Special Prosecutor can
say no more than that compliance with the subpoena might pro-
vide prospective defendants with one more discrete incident
to cite in support of a claim of prejudicial pre-trial pub-
licity. Accordingly, we take no position on whether the
Court, if the Senate Select Committee subpoena is otherwise
enforceable, should consider the danger of prejudicial pre-
1/
trial publicity a decisive factor.
Finally, if the Court decides to direct compliance with
the Committee's subpoena, the Special Prosecutor suggests
that compliance be limited specifically to delivery of copies,
5/
emd not the original recordings. As indicated above, the
£/ In Nixon v. Sirica , supra , the court of appeals held
that the President' s generalized claim of executive privilege
is not absolute and "depends on a weighing of the public inter-
est protected by the privilege against the public interests
that would be served by disclosure in a particular case" (slip
op. at 28) . There, the court held that the privilege "must fail
in the face of the uniquely powerful showing made by the Special
Prosecutor in this case" (slip op. at 30) . This "uniquely
powerful showing" was based on the "vital function" of the
grand jury. Thus, the grand jury's subpoena was enforced be-
cause of the paramount public interest in the full and fair
investigation of allegations of criminal misconduct by high
government officials (slip op. at 31) . Clearly, the effect that
compliance with another subpoena would have on the integrity of
this same investigation must be taken into account in determin-
ing whether the public interest lies in sustaining or overruling
a claim of privilege in a different context.
5/ Four of the original recordings, which were subpoenaed
by the grand jury, are now in the custody of the District Court,
pursuant to the request of Chief Judge Sirica. The VThite House
apparently retains custody of the fifth, the recording of the
meeting on February 28, 1973, which was not subpoenaed by the
grand jury.
- 6 -
1206
Special Prosecutor intends to introduce these recordings in
evidence at any future trials and, thus, it is essential to
maintain, insofar as possible, the authenticity and integrity
of the original recordings. Delivery of the originals, at a
minimum, would create evidentiary problems, including proof
of the chain of custody. Also, since each reel of tape in-
cludes six hours of recording, far more than those portions
subject to the subpoena, delivery of the original would neces-
sitate excising all non-subpoenaed portions from the original.
This would create obvious evidentiary problems. Exact copies
of the subpoenaed portions, on the other hand, would satisfy
fully the needs of the Senate Select Committee.
The foregoing statement is filed for whatever assistance
it may furnish to the Court.
Respectfully submitted.
LEON JAWORBKI
Special Prosecutor
PHILIP A.-LACOVARA
Counsel to the Special
Prosecutor
PETER M. KREINDLER
Executive Assistant to
the Special Prosecutor
Watergate Special Prosecution Force
1425 K Street, N. W.
Washington, D. C. 20005
Attorneys for the United States
DATED: February 6, 1974
- 7 -
1207
CERTIFICATE OF SEP.VICE
I, Peter M. Kreindler, certify that a copy of the
foregoing Memorandvun Of The Special Prosecutor was hand
delivered on this 6th day of February, 1974, to the
following :
James D. St. Clair, Esq.
Special Counsel to the
President
The White House
VJashington, D. C.
Samuel Dash, Esq.
Chief Counsel
United States Senate
Select Committee on Presidential
Campaign Activities
Washington, D. C.
PETER M. KREINDLER
1208
THE WHITE HOUSE
WAS H I N GTO N
February 6, 1974
Dear Judge Gesell:
Re Senate Select Committee et al. v. Nixon
Civil Action No. 1593-73
I enclose herewith the President's response to your order of
January 25, 1974, in the above entitled proceeding.
I have received a copy of the memorandum of the Special
Prosecutor in w^hich he states that four of the recordings
described in the Senate Select Committee subpoena were
received pursuant to the Special Prosecutor's subpoena.
I believe your Honor should also be aware that the fifth
recording was requested of White House Counsel by the
Special Prosecutor and was furnished him for the purpose
submitting the same to the Grand Jury.
|ly yours.
^^^C^::p
St. Clair
Counsel
President
Honorable Gerhard Gesell
United States Courthouse
Washington, D. C. 20001
CC: Honorable Leon Jaworski
1209
THE WHITE HOUSE
WASHINGTON
February 6, 1974
Dear Judge Gesell:
I have been advised by Special Counsel to the
President of the order issued by you on January
25, 1974, in which you solicited my personal re-
sponse with reference to five specified taped
conversations .
As indicated in the various briefs, pleadings and
other papers filed in this proceeding, it is my
belief that the issue before this Court constitutes
a non- justiciable political question.
Nevertheless, out of respect for this Court, but
without in any way departing from my view that the
issues presented here are inappropriate for reso-
lution by the Judicial Branch, I have made a
determination that the entirety of the five re-
cordings of Presidential conversations described
on the subpoena issued by the Senate Select Com-
mittee on Presidential Campaign Activities contains
privileged communications, the disclosure of which
would not be in the national interest.
I am taking this position for two primary reasons.
First, the Senate Select Committee has made known
its intention to make these materials public. Un-
like the secret use of four out of five of these
conversations before the grand jury, the publication
of all of these tapes to the world at large would
seriously infringe upon the principle of confi-
dentiality, which is vital to the performance of
my Constitutional responsibilities as President.
Second, it is incumbent upon me to be sensitive
to the possible adverse effects upon ongoing and
forthcoming criminal proceedings should the con-
tents of these subpoenaed conversations be made
public at an inappropriate tim.e. The dangers
1210
-2-
connected with excessive pre-trial publicity are as
well-known to this Court as they are to me. Conse-
quently, my Constitutional mandate to see that the
laws are faithfully executed requires my prohibiting
the disclosure of any of these materials at this
time and in this forum.
Sincerely,
The Honorable Gerhard A. Gesell
Judge
U. S. District Court
for the District of Columbia
Washington, D.C.
1211
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
\
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al .
:'IAL
Plaintiffs
RICHARD M. NIXON, Individually and as
President of the United States
Defendant
Clvil Action
No. 1593-73
""^ FEB - 7 1974
■1 . ,,
JAWRS F. DAVEY
CLERK
PLAINTIFFS' OBSERVATIONS ON
~ PRESIDENT'S LETTER AND THE
SPECIAL PROSECUTOR'S MEMORANDUM
I, The President's" Letter
In its order of January 25, 197'<, the Court, being of
the view that the President's claim of executive privilege was
"too general", respectfully requested the President to "submit
... a particularized statement addressed to specific portions
of the subpoen.aed tape recordinp;s indicating . . . with regard
to those portions as to which the privilege is still asserted,
. . . the factual ground or prounds for his determination that .
disclosure to the Select Committee could not be in the public
interest". The President has failed to oresent the "particu-
larized statement" called for by that order. Instead, he relies
primarily on the generalized claim that disclosure of the
five conversations under suboena would not be in the national
interest.
To support this generalized claim the President makes
two points, neither of which is persuasive. First, he says
that ''publication of all these tapes to the world at large
would seriously infringe upon the principle of confidentiality,
which is vital to the performance of my Constitutional
responsibilities as President". This statement hardly
qualifies as a "particularized statement" as to why disclosure
1212
-2-
Is not in the public interest and, in any event, is highly
suspect because the President has already allowed his present
and former aides to breach repeatedly the supposed confi-
dentiality of these conversations. The President, hinself,
has publicly commented on the contents of certain of these "
conversations and, just recently, has allowed his aides to
show purported transcripts of certain conversations under
subpena to Senator Scott who apparently was free to comment
publicly on their contents, as he in fact has done.j^/
Thus, the import of the President's assertion is that it is
In the "national interest" to withhold the best evidence while
he permits inferior accounts of the contents of the tapes to
emerge. We quarrel with this concept of the "national interest"
and instead submit that informing the public of the contents
of the tapes is in the public interest for the people have a
right to know if their government has been corrupted.**/
Secondly, the President puts forth his concern as to
the "dangers" of excessive pretrial publicity as a reason
for asserting executive privilege. There is, of course, some
question whether this concern presents a valid ground for-
invoking executive privilege since "/ t/his privilege /is^7
Intended to protect the effectiveness of the executive
decision-making powers" (Nixon v. Sirica, p. 29), rather than
to safeguard criminal trials. In any event, this assertion
is both belated and unconvincing now that the President and
his present and former aides, with his permission, have
spread voluminous evidence regarding the conversations at
*/See. e.g. , Washington Post, Feb. 2, igT'l, p. A-15,
col. 1-W. As the Court of Appeals said in Nixon v. Sirica
(p. 32): "The simple fact is that the conversations are no
longer confidential".
**/A3 the President must realize, turning the tapes
over to the Special Prosecutor may result in their contents '
being publicly revealed at trial. Thus the distinction the
President attempts to make between revelation to a grand
Jury, whose proceedings are in secret, and disclosure to the
Committee, whose hearings are frequently open, rests on
flimsy grounds.
1213
-3-
issue on the public record. It is noteworthy that the Presi-
dent's statement on pretrial publicity is considerably
stronger than the Special Prosecutor's, who is specifically
entrusted with the Watergate prosecutions and takes no position
as to whether the Court should consider the possibility of
pretrial publicity as a decisive factor In its decision
whether compliance with the subpena is in order. In fact,
the Special P.rosecutor affirmatively states that he is confi-
dent that fair trials respecting the V/atergate affair will be
had.
The President, therefore, has submitted no "particularized
reason" why the V/atergate portions of the tapes subpenaed
should not be produced. Moreover, he raised no "particularized
reason" for executive privilege in the Grand Jury proceeding
as to the four conversations there Involved that are also
under subpena heve.^/ Accordingly, under the balancing test
promulgated in Nixon v. Sirica, the Judgment of the Court must
be in plaintiffs' favor. ^/
II. The Special Prosecutor's Statement
The essense of the Special Prosecutor's response to the
Court's January 25, 197*^ order is contained in the following
paragraph:
"We are confident that notwltliatandlng prior
publicity, if Jurors are selected ivlth the care
VMr. St. Clair, the President's Counsel, asserts in his
February 6 letter to the Court that the February 28 tape was
submitted to the Special Prosecutor for Grand Jury purposes,
thereby apparently indicating that, as to that tape, the Presi-
dent also made no particularized claim of privilege in the
Grand Jury context.
^*/Respecting the President's repeated assertion that
this case involves a "political question" and is thus non-
Justiciable, we respectfully refer the Court to our Court of
Appeals recent decision in National Treasury Employees Union
v. Nixon (D.C. Cir. No. 72-1929, Jan. 25, 197^), where a
similar claim by the President in defense of a suit against
him was rejected.
1214
required by the decisions in this Circuit, all de-
fendants will receive a fair and prompt trial.
Against this background, the Special Prosecutor
can say no more than that compliance with the
subpoena might provide prospective defendants
with one more discrete Incident to cite in
support of a claim of prejudicial pre-trial
publicity. Accordingly, we take no position
on v;hether the Court, if the Senate Select
Committee subpoena is otherwise enforceable,
should consider the danger of prejudicial pre-
trial publicity a decisive factor."
The Special Prosecutor has candidly recognized that, in
addition to a Court's powers to achieve fair trials, V there
are several other factors that minimize the possibility of
prejudice respecting any future trials if the Court orders
compliance with the subpena at issue. Thus he suggests
(p. H) that any possible impact would be reduced if the
Committee uses the subpenaed material Judiciously. V7e repre-
sent to the Court that the Committee, ever cognizant of the
need for fair trials, will voluntarily impose the necessary
restrictions on Itself as to the employment of this material.
The Committee recently postponed scheduled hearings because
of the proximity of the Mitchell/Stans trial in New York City
and similar self-restraint will be shown in the future.**/
The Special Prosecutor has stated (p. 5-6) that "any public-
ity stemming from compliance witji the subpenas would add only
VAs Judge Sirica said In Application of United States
Senate Select Committee on Presidential Campaign Activities,
361:P. Supp. 1270, 1280 (D.D.C. 1973), a Court has a well-
measures designed to preserve the integrity
the rights of individuals". The existence
arsenal" provides additional support for
a "legislative investigation
response to its inquiries
witness in some distinct
P.
stocked arsenal of
of proceedings and
of a "well-stocked
Justice Harlan's observation that
need not grind to a halt whenever
might potentially be harmful to a
proceeding ... or when crime or wrongdoing Is disclosed".
Hutcheson v. United States, 369 U.S. 599, 6l8, (1962) (Harlan,
J. concurring). See also, Delaney v. United States, 199 Fed.
2d 107 (1st Clr. 1952).
**/Because the Committee will handle the material it re-
ceives in Judicious fashion, we see no reason for the Court to
Impose restraints as to how such materials may be used — a
course that, in any event, would be of doubtful validity in
view of separation of powers and comity considerations. E.g. ,
Application of United States Senate Select Committee on Presi-
dential Campaign Activities, 361 P. Supp. 1270, 1280 (D.D.C.
1973); Sanders v. McClellan, 150 U.S. App. D.C. 58, 163 P-2d
891 (1972). ,
1215
-5-
marginally to previous publicity" and has also noted the Court
of Appeals' ruling that the tapes constitute "the best evidence
of the conversations available". Nixon v. Sirica (p. 32). In
this vein, we suggest to the Court that, because this "best,
evidence" vfould put speculation to rest as to what is on the
tapes, the volume of publicity respecting the tapes would
actually be r^educed by revelation of their contents.^/
There are yet other factors that would minimize the •
possible pretrial impact of producing the tapes to the Select
Committee. It may be possible that many or all the
Watergate cases will be resolved by guilty pleas. In such
circumstances, any possible prejudice resulting from playing
the tapes would be limited or non-existent . **/ Moreover, the
tapes may be played in the Impeachment proceedings (if the
House Judiciary Committee is successful in obtaining them)
or — if there are separate trials — at the first trial of a major
White House figure. Any trials following those events would
not be effected to any greater degree by production to the
Committee of the materials subpenaed.
In any event, it is not clear what future prosecutions
might be prejudiced by playing the tapes or how they might be
prejudiced. The Special Prosecutor forthrightly recognizes
this (p. i»), stating "/~a7t this time it is impossible to
VV/e note, in this regard, the current, widely publi-
cized dispute between the Special Prosecutor's office, on the
one hand, and Mr. St. Clair, the President's Counsel, and
Sen. Scott, on the other, as to the contents of the President-
Dean conversations on September 15, 1972, February 28, 1973,
and March 13, 1973 — all of which are involved in this lawsuit.
(See, e.g. . Washington Post, Feb. 2, 197**, p. A-15, col. l-**;
Washington Star-News, Feb. 5, 197'*, p. A-2, col. 2-5-)
**/It is significant that guilty pleas have been obtained
from Dean, Magruder, Porter, LaRue and Segretti even though
they testified before the Committee and thus the facts of their
activities were extensively publicized.
1216
-6-
assess the precise impact of such publicity on forthcoming
trials". V Surely, some vague, possible pretrial impact
that may never occur does not outv/elgh the vital need of the
Committee to achieve the tapes in question so it may fulfill
its law-making and informing functionsT^y
Respectfully submitte
»
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
Samuel Dash /
Chief Counsel
Fred D. Thompson
Minority Counsel
Rufus Edmisten
Deputy Counsel
James Hamilton
Assistant Chief Counsel
Richard B. Stewart
Special Counsel
Ronald D. Rotunda
Assistant Counsel
Donald S. Burris
Assistant Counsel
United States Senate
Washington, D.C. 20510
Tel. No. 225-0531
Attorneys for Plaintiffs
*/The most the Special Prosecutor would say (p. S-'l) is
that '"'airing the recordings . . . would Increase the risk
that those indicted could contend with more force than
presently available that widespread pre-trial publicity pre-
vents the Government from empanelling an unbiased Jury for
the trial of the offenses charged". This statement could
hardly be more cautious and guarded. And, as previously
noted, the Special Prosecutor also stated (p. 6) that he
is "confident that notwithstanding prior publicity, if Jurors
are selected with the care required by the decisions in this
Circuit, all defendants will receive a fair and prompt trial",
**/V/e accept the Special Prosecutor's suggestion that the
Committee be supplied with only the copies of the five tapes
it seeks, provided that it can verify their accuracy by
comparing them with the originals in the Court's possession.
1217
CERTIFICATE OF SERVICE
\
i
I, James Hamilton, do hereby certify that on the 7th-
of February, 197'*, I served copies of the attached Plaintiffs'
Observations on the President's Letter and the Special
Prosecutor's Memorandum upon the defendant President and
upon the Special Prosecutor by having said copies hand-
delivered to the office of the President's Counsel in the
Executive Office Buildlnp;, Pennsylvania Avenue, Washington, ■
D.C. and to the offices of the Special Prosecutor at 1*125
K Street, N.W., VJashington, D.C.
^Xlj^A^'
James Hamilton
Assistant Chief Counsel
United States Senate
Washington, D.C. 20510
Attorney for Plaintiffs
34-966 O - 74 - pt. 1 - 78
1218
IN THE UNITED STATES DISTR:CT 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. lr?3-7?
MEMORANDUM AND ORDER
The Senate Select Committee on Presidential CaiiipaigR
Activities desires access to five tape recordings made by the
President of conversations between himself and John Wesley
Dean, III, then Counsel to the President. These tapes are
relevant to the Committee's functions and are identified by date
and time. The Committee duly served a subpoena duces ceciam on
the President demanding production of those portions of the
taped conversations which deal with "alleged criminal acts
occurring in connection with the Presidential election of 1972.
The President refused to comply. Deeming the Senate's own
enforcement procedures inappropriate, the Committee sought
judicial enforcement of the subpoena, but the Court (Sirica, J.)
ruled that it lacked jurisdiction. At the instance of the
Committee, Congress then passed a Joint Resolution placing special
jurisdiction in this Court to enforce the Committee's subpoenas,
and accordingly the issues are again presented for judicia?
consideration. The Committee seeks a declaratory judgi.ient
clarifying its rights and an affirmative injunction directing
compliance with the subpoena.
The Committee has moved for suirmiary judgment nnd
the President, through his cou.isel, resists and asks for di.=.n.j ss^'l.
'•/ The C' :ittoe Giriginall issued two .subpoenas duces tecum,
Eut enfor: icnt of the seco subpoena \vas denied by this Court
on January .S, 19M. ;.
1219
•2-
On the basis of the voluminous papers before the Court and a
transcript of the oral argument before Judge Sirica during
earlier proceedings in this case, the Court has determined
that no further hearings are required and the case is ripe for
resolution.
The President at the outset contends that the issue
before the Court "constitutes a non-justiciable political
question," but the decision of the United States Court of
Appeals for the District of Columbia Circuit sitting en banc
487 F.2d 700
in Nixon v. Sirica, Nos . 73-1962, 73-1967, 73-1989/(0. C. Cir.
Oct. 12, 1973), is squarely to the contrary and no extended
discussion is required. The reasoning of that Court involving
a grand jury subpoena is equally applicable to the subpoena of
a congressional committee. Baker v. Carr , 369 U.S. 186 (1962),
establishes the tests for determining the existence of a
"political question," and application of these tests leaves no
doubt that the issues presented in the instant controversy are
justiciable. See id. at 217. See also Powell v. McCormack,
395 U.S. 486, 518-50 (1969).
Given this determination, it becomes the duty of
the Court to weigh the public interests protected by the
President's claim of privilege against the public interests
that would be served by disclosure to the Committee in this
particular instance. Nixon v. Sirica, supra, at 716-18. This is
a difficult but necessary task. The circumstances are unique
in our constitutional history. To aid the final determination,
the Court requested the Watergate Special Prosecutor to indicate
what effect, if any, public disclosure of the subpoenaed tapes
by the Committee at this juncture would have on his
responsibilities in carrying forward criminal prosecutions.
The Court also requested the President to particular ' y.e and to
update his claim of privilege as it relates to the ' tapes,
since substantial time and many events have intervc since
the original issuance of the subpoena. The Preside^ s response'
is attached. The Committee has also elaborated ,l;,- . ts need
for the tapes in recently filed papers. The Coui iii.t carefully
1220
weighed these conflicting assertions of public interest in the
light of the respective requirements of the parties.
It has not been demonstrated to the Court's
satisfaction that the Committee has a pressing need for the
subpoenaed tapes or that further public hearings before the
Committee concerning the content of those tapes will at this time
serve the public interest. Conversely, the Court rejects the
President's assertion that the public interest is best served
by a blanket, unreviewable claim of confidentiality over all
Presidential communications, see Nixon v. Sirica, supra , at 719-20,
and the President's unwillingness to submit the tapes for the
Court's in camera ex parte inspection or in any other fashion
to particularize his claim of executive privilege precludes
judicial recognition of that privilege on confidentiality
grounds. Cf. United States v. Burr, 25 Fed. Cas . 187 (Case No.
14.694), 192 (1807).
On the other hand, both the President and the
Special Prosecutor have advanced another factor bearing upon the
public interest which the Court finds to be of critical
importance — the need to safeguard pending criminal prosecutions
from the possibly prejudicial effect of pretrial publicity.
At this juncture in the so-called Watergate
controversy, it is the responsibility of all three branches of
the Federal Government to insure that pertinent facts are brought
to light, that indictments are fairly and promptly tried, and
that any accusations involving the conduct of the President or
others are considered in a dignified manner and dealt with in
accordance with established constitutional processes. The
President, the Congress and the Courts each have a mutual and
concurrent obligation to preserve the integrity of the criminal
trials arising out of Watergate. The public has been subjected
to a mass of information that is both conflicting and uncertain
in its implications. Clearly the public interest deir, ds that the
1221
charges and countercharges engendered be promptly resolved by
our established judicial processes. Thus the Court is
compelled to weigh the effect that disclosure of the subpoenaed
portions of these tapes might have upon criminal trials scheduled
or soon to be scheduled on the calendar of this Court.
Three grand juries are now engaged on matters
under the Special Prosecutor's jurisdiction. A number of
Indictments and informations have already been filed and more
are expected by the end of this month. The cases will be
promptly scheduled for trial. The first trial is set for April 1,
with pretrial hearings later this month, at which Mr. Dean will
testify. The Special Prosecutor has indicated to the Court his
intention of introducing at least four of the five subpoenaed
tapes into evidence at some of the trials. All five tapes are
now in his possession, and at least four have been played before
a grand jury.
No one can doubt that, should the President be
forced to comply with the subpoena, public disclosure of these
tapes would immediately generate considerable publicity. While
it is impossible, as the Special Prosecutor points out, to
assess the precise impact of such publicity on the forthcoming
judicial proceedings, the risk exists that it would bolster
contentions that unbiased juries cannot be impaneled for trial.
This is, moreover, in the nature of a test case and should the
Committee prevail, numerous additional demands might well be
*/
made.—
The President has a constitutional mandate to see
that the laws are faithfully executed and should therefore
quite properly be concerned with the dangers inherent in excessive
pretrial publicity. That the President himself may be under
suspicion does not alter this fact, for he no less than any
other citizen is entitled to fair treatment and the presimption
*/ A sweeping subpoena seeking some 500 items has apparently
Feen served on the President more recently, but it has not
been brought into this litigation.
1222
of innocence. The public interest does not require that the
President should be forced to provide evidence, already in
the hands of an active and independent prosecution force, to
a Senate committee in order to furnish fuel for further hearings
which cannot, by their very nature, provide the procedural
safeguards and adversary format essential to fact finding in
the criminal justice system. Congressional demands, if they
be forthcoming, for tapes in furtherance of the more juridical
constitutional process of impeachment would present wholly
different considerations. But short of this, the public
interest requires at this stage of affairs that priority be
given to the requirements of orderly and fair judicial
administration.
The Court wishes to emphasize the special
circumstances of this particular case which support this
conclusion. The five tapes at issue are sought principally
for the light that they might shed on the President's own
alleged involvement in the Watergate coverup. "[A] negations
involving the President" are among those specifically assigned
to the Special Prosecutor for investigation and, if appropriate,
for prosecution. The President has, however reluctantly, now
provided the Special Prosecutor with all of the information he
requires with regard to the five conversations at issue. The
tapes themselves have been delivered to the grand juries; all
the President's aides participating in the conversations have
been permitted to testify under oath concerning the
conversations, and the President has invoked neither his Fifth
Amendment nor his attorney-client privilege with regard to any
of the conversations or related materials he has furnished.
To suggest that at this juncture the public interest requires
pretrial disclosure of these tapes either to the Cor ttee or
to the public is to imply that the judicial process -las not been
or will not be effective in this matter. All of the evidence
at hand is to the contrary.
1223
The Committee's role as a "Grand Inquest" into
governmental misconduct is limited, for it may only proceed in
aid of Congress' legislative function. The Committee has, of
course, ably served that function over the last several months,
but surely the time has come to question whether it is in the
public interest for the criminal investigative aspects of its
work to go forward in the blazing atmosphere of ex parte
publicity directed to issues that are immediately and intimately
related to pending criminal proceedings. The Committee itself
must judge whether or not it should continue along these lines
of inquiry, but the Court, when its equity jurisdiction is
invoked, can and should exercise its discretion not to enforce
a subpoena which would exacerbate the pretrial publicity in
areas that are specifically identified with pending criminal
charges .
The Court recognizes that any effort to balance
conflicting claims as to what is in the public interest can
provide only an uncertain result, for ours is a country that
thrives and benefits from factional disagreements as to what
is best for everyone. In assigning priority to the integrity
of criminal justice, the Court believes that it has given
proper weight to what is a dominant and pervasive theme in
our culture. To be sure, the truth can only emerge from full
disclosure. A country's quality is best measured by the
integrity of its judicial processes. Experience and tradition
teach that facts surrounding allegations of criminal conduct
should be developed in an orderly fashion during adversary
proceedings before neutral fact finders, so that not only the
truth but the whole truth emerges and the rights of those
involved are fully protected.
Accordingly, the Court declares that, while the
controveroy presented is justiciable, the Select Committee has
not established by a preponderance of the evidence that it is
1224
-7-
entitled at this particular time to an injunction directing
the President to comply with its subpoena for the five tape
recordings. The application of the President's counsel for
dismissal of the complaint is granted, and the complaint is
dismissed without prejudice.
SO ORDERED.
UNITED STXtES DISTRICT JU
JUDGE
February 8, 197A.
1225
THE WHITE IIOISE
WASHINGTON
February 6, 1974
Dear Judge Gesell:
I have been advised by Special Counsel to the
President of the order issued by you on January
25, 1974, in which you solicited my personal re-
sponse with reference to five specified taped
conversations.
»
As indicated in the various briefs, pleadings and
other papers filed in this proceeding, it is my
belief that the issue before this Court constitutes
a non- justiciable political question.
Nevertheless, out of respect for this Court, but
without in any way departing from my view that the
issues presented here are inappropriate for reso-
lution by the Judicial Branch, I have made a
determination that the entirety of the five re-
cordings of Presidential conversations described
on the subpoena issued by the Senate Select Com-
mittee on Presidential Campaign Activities contains
privileged communications, the disclosure of which
would not be in the national interest.
I am taking this position for two primary reasons.
First, the Senate Select Committee has made knovjn
its intention to make these materials public. Un-
like the secret use of four out of five of these
conversations before the grand jury, the publication
of all of these tapes to the world at large would
seriously infringe upon the principle of confi-
dentiality, which is vital to the performance of
my Constitutional responsibilities as President.
Second, it is incumbent upon me to be sensitive
to the possible adverse effects upon ongoing and
forthcoming criminal proceedings should the con-
tents of these subpoenaed conversations be made
public at an inappropriate time. The dangers
1226
-2-
connected with excessive pre-trial publicity are as
well-known to this Court as they are to me. Conse-
quently, my Constitutional mandate to see that the
laws are faithfully executed requires my prohibiting
the disclosure of any of these materials at this
time and in this forum.
Sincerely,
The Honorable Gerhard A. Gesell
Judge
U. S. District Court
for the District of Columbia
Washington, D.C.
1227
IN THE U^JITED STATES DISTRICT COURT
FOR THE DISTRICT OP COLUMBIA
SENATE SELECT COMMITTEE ON PRESIDENTIAL
CAMPAIGN ACTIVITIES, et al.
Plaintiffs
RICHARD M. NIXON,
Individually and as President of the
United States
Defendant
FILED
FEB 2 0 1974
J.4i,'JSS P. PAVEY
CLERK
Civil Action
No. 1593-73
NOTICE OP APPEAL
Notice is given that the above named plaintiffs, this
20th day of February, ig?**, hereby appeal to the United States
Court of Appeals for the District of Columbia Circuit from this
Court's Order of February 8, 197'*, that denied plaintiffs'
Motion for Summary Judgment and dismissed the complaint without
/
prejudice.
jamuel Dash
Chief Counsel
Senate Select Committee on
Presidential Campaign
Activities
United States Senate
Washington, D.C. 20510
(202) 225-0531
o
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